Acceptance of a Transfer Under Threat of Termination Does Not Bar Religious Accommodation and Cooperative Dialogue Claims (State and City HRL)

1. Introduction

This appeal arises from Mount Sinai Hospital’s February 2021 requirement that Building Services Department personnel pass an N-95 respirator “fit test,” which, according to the hospital, required certain employees to shave facial hair to achieve a proper seal (citing 29 CFR § 1910.134[g][1][i][A]). Plaintiffs—practicing Muslims who wear beards as part of their faith—refused to shave and were sent home, suspended, and threatened with termination. The hospital offered transfers to roles in other departments that did not require N-95 use.

The key legal issues were: (i) whether the fit-test policy was discriminatorily enforced (religious discrimination under State and City HRL); (ii) whether Mount Sinai failed to reasonably accommodate plaintiffs’ religious observance; and (iii) whether Mount Sinai failed to engage in a “cooperative dialogue” as required by the NYC Human Rights Law. Procedurally, the First Department largely affirmed the Supreme Court’s mixed summary-judgment order but modified it to reinstate plaintiff Brian Jones’s accommodation and cooperative-dialogue claims.

2. Summary of the Opinion

• Religious discrimination (selective enforcement) claim: Dismissal affirmed. Plaintiffs failed to raise a triable issue that defendants’ legitimate reason for fit testing was pretextual or motivated by discrimination.
• Failure to accommodate (Moye & Shaw): Summary judgment for either side properly denied; triable issues existed on feasibility and undue hardship.
• Cooperative dialogue (Moye & Shaw): Summary judgment for either side properly denied; evidence could support a finding that defendants cut short the interactive process.
• Jones claims: Supreme Court’s dismissal was modified; Jones’s claims for failure to accommodate and failure to engage in a cooperative dialogue were reinstated.

3. Analysis

A. Precedents Cited (and How They Shaped the Decision)

Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66 (1st Dept 2017)

The court relied on Hamburg for the summary-judgment framework on discrimination: once the employer proffers a legitimate, nondiscriminatory reason, the plaintiff must raise a triable issue of pretext or show discrimination was a motivating factor. Here, Mount Sinai’s safety-based rationale for requiring all Building Services staff to pass fit testing defeated the selective-enforcement discrimination theory because plaintiffs could not show pretext.

Tihan v Apollo Mgmt. Holdings, L.P., 201 AD3d 557 (1st Dept 2022), lv denied 38 NY3d 913 (2022)

Tihan reinforced the comparator requirement: plaintiffs must show differential treatment as against similarly situated employees outside the protected class. Because plaintiffs did not dispute that all Building Services personnel were subject to the fit test, the record lacked evidence of disparate treatment.

Godbolt v Verizon N.Y Inc., 115 AD3d 493 (1st Dept 2014), lv denied 24 NY3d 901 (2014)

Plaintiffs cited skeptical remarks by Mount Sinai’s labor-relations executive during accommodation discussions as evidence of animus. The court used Godbolt to require a “nexus” between the remark and the challenged decision. Because the speaker did not decide who had to undergo fit testing, the remarks did not salvage the selective-enforcement discrimination claim—though, as the opinion later shows, the remarks remained relevant to the cooperative-dialogue dispute.

Friedman v Bloomberg, L.P., 230 AD3d 1060 (1st Dept 2024)

Friedman served two functions. First, it supported the idea that plaintiffs created a triable issue of feasible accommodation based on workplace practice: plaintiffs had performed duties with surgical masks until February 2021 and only rarely cleaned COVID-positive areas. Second, it supplied a key cooperative-dialogue principle: once the employer has knowledge that an employee’s request is grounded in religious beliefs, that knowledge “triggered a duty to engage” in the interactive process.

Matter of Lebowitz v Board of Educ. of City Sch. Dist. of the City of N.Y., 220 AD3d 537 (1st Dept 2023), lv denied 41 NY3d 987 (2024)

The court distinguished Lebowitz on the “undue hardship” showing. There, the employer faced “more than 3,300” requests for religious exemptions. Here, the record suggested only six Building Services employees requested relief from fit testing—supporting plaintiffs’ argument that accommodating “a few” might not create significant operational difficulty, while still leaving open factual disputes given Mount Sinai’s pandemic conditions.

Gordon v Consolidated Edison Inc., 190 AD3d 639 (1st Dept 2021)

Gordon was used to frame what a deficient cooperative dialogue can look like: a process that is curtailed or forecloses meaningful consideration of options. Evidence that Mount Sinai threatened termination within days and appeared to reject, categorically, accommodating employees in their current roles created a triable issue under Gordon.

Hosking v Memorial Sloan-Kettering Cancer Ctr., 186 AD3d 58 (1st Dept 2020)

Hosking informed the court’s view that a dialogue conducted “under the specter of forced resignation” may be found inadequate. Presenting shaving (a religious violation) or a limited set of transfer options—paired with a statement that refusal would be treated as resignation—could allow a jury to conclude the employer did not engage in the cooperative dialogue the City HRL requires.

B. Legal Reasoning

1) Discrimination vs. Accommodation: a decisive separation

The opinion sharply separates a selective enforcement discrimination claim from accommodation and cooperative dialogue claims. Even if the fit-test policy was neutrally applied (defeating the discrimination theory under Hamburg/Tihan), the employer still had to show it met its accommodation and dialogue duties once the religious conflict was known (drawing on Friedman and City HRL § 8-107[28]).

2) Feasibility and “undue hardship” were fact-bound

On accommodation, the First Department held that the record could support plaintiffs’ proposed alternatives (e.g., avoiding COVID-positive areas or waiting before entry), especially given their historical work practice using surgical masks. At the same time, Mount Sinai’s evidence—high COVID occupancy, the need to deploy any Building Services worker during shortages, and limited PAPRs—raised factual disputes on hardship. This combination made summary judgment inappropriate for either side.

3) Cooperative dialogue: timing, tone, and options mattered

The opinion emphasizes that once defendants knew plaintiffs’ refusal to shave was religiously motivated, the City HRL required an interactive process. Evidence that defendants escalated rapidly to threats of termination, expressed skepticism about sincerity, and treated rejection of transfers as resignation could support a finding that the process was not cooperative. Conversely, defendants’ evidence of meetings, internal discussion of isolation/PAPRs, and efforts to locate alternative positions prevented plaintiffs from winning summary judgment.

4) The key doctrinal clarification: acceptance under pressure is not a waiver

The court’s modification as to Jones announces a practical rule for HRL litigation: an employee who temporarily accepts a transfer offered as the only alternative to termination/resignation is not automatically barred from later arguing the accommodation was unreasonable or that the employer failed to provide the required cooperative dialogue. This prevents employers from converting “take-it-or-leave-it” transfers—especially under urgent threats—into categorical defenses.

C. Impact

• Limits “transfer-and-moot” defenses: Employers cannot reliably defeat accommodation/dialogue claims merely because an employee accepted a transfer under pressure.
• Raises litigation value of process evidence: Emails, meeting notes, timelines, and statements during negotiations may be central—especially to City HRL cooperative-dialogue claims.
• Confirms neutrality doesn’t end the inquiry: A uniform safety policy may defeat selective-enforcement discrimination claims, but it does not eliminate accommodation and dialogue obligations.
• Undue hardship remains highly contextual: The court signals that raw numbers (as in Lebowitz) and operational realities (pandemic staffing, equipment availability) can be outcome-determinative, often for the factfinder.

4. Complex Concepts Simplified

• Fit test (N-95): A procedure to ensure the respirator seals to the face; facial hair can prevent a proper seal (referenced via 29 CFR § 1910.134).
• Reasonable accommodation (religion): A work adjustment that lets an employee practice their religion, unless it causes the employer an undue hardship.
• Undue hardship (State/City HRL): Under the provisions quoted by the court, hardship means a “significant expense or difficulty,” including significant interference with safe/efficient operations.
• Cooperative dialogue (NYC HRL): A required interactive process—communication in good faith to explore potential accommodations, not merely announcing a final decision.
• Pretext / motivating factor: In discrimination claims, “pretext” means the employer’s stated reason is not the true reason; “motivating factor” means bias played a role even if other reasons also existed.
• Nexus requirement (remarks): Biased comments matter most when connected to the challenged decision; otherwise they may be insufficient for a discrimination claim (though they can still be relevant to process-based claims).

5. Conclusion

Moye v Mount Sinai Hosp. underscores that even where an employer enforces a neutral safety policy across a department, it must still satisfy distinct obligations to (1) reasonably accommodate religious practice absent undue hardship and (2) engage in a genuine cooperative dialogue under the NYC HRL. Most significantly, the First Department clarifies that an employee’s acceptance of a transfer offered under threat of termination or forced resignation does not, by itself, extinguish accommodation or cooperative-dialogue claims. The decision thus elevates the legal importance of how accommodation discussions are conducted—especially under urgent workplace conditions—and preserves jury scrutiny of “take-it-or-leave-it” outcomes.