IdentityNew York City’s anti-discrimination statute protects workers against discrimination based on gender identity and gender expression, but these protections are far less certain in other jurisdictions and under federal laws. The Equal Employment Opportunity Commission (EEOC) has taken the position that the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 cover gender identity discrimination, and some federal courts have also reached this conclusion. Other courts have specifically rejected this view. One federal district court took the unusual step of rejecting a gender identity discrimination claim on the basis of the federal “religious freedom” statute. EEOC v. R.G. & G.R. Harris Funeral Homes, No. 2:14-cv-13710, order (E.D. Mich., Aug. 18, 2016). While the case is likely to be reversed on appeal, it is important to understand the development of the law on this issue.

Title VII prohibits employment discrimination on the basis of various factors, including sex. 42 U.S.C. § 2000e-2(a). The Supreme Court has held that an employer engages in unlawful sex discrimination when it makes decisions based on “sex stereotyping,” which includes “evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). This decision has influenced numerous cases dealing with gender identity discrimination.

The EEOC has generally taken the view that Title VII’s prohibition on sex discrimination includes gender identity. See Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The Sixth Circuit Court of Appeals, whose jurisdiction includes the court that decided R.G. & G.R. Harris Funeral Homes, has held that Price Waterhouse “eviscerated” narrower interpretations of “sex discrimination” under Title VII. Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004); see also Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).

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MicrophoneNew York City’s entertainment scene is one of the most vibrant in the world, offering an almost literally endless range of options, including theater, music, film, fashion, and comedy. Sadly, every one of these scenes is prone to sexual harassment and other issues that make them uninviting, or even dangerous, for many people. Anti-discrimination laws at the municipal, state, and federal levels protect workers in New York City from sexual harassment and sex discrimination, but the extent to which these laws apply in the entertainment world is not always clear. In the comedy scenes of several big cities, comedians are taking matters into their own hands, in a manner of speaking, finding ways to push back against those who commit acts of sexual harassment and worse both on- and backstage.

Sexual harassment, broadly defined to include unwanted comments or overtures of a sexual nature, as well as direct requests or demands for sexual activity in some form as a condition of employment, is considered a type of sex discrimination under most anti-discrimination statutes. The New York City Human Rights Law (NYCHRL), the New York State Human Rights Law (NYSHRL), and Title VII of the federal Civil Rights Act of 1964 all take this view of sexual harassment.

These laws’ protections only extend to “employees,” such as salaried or hourly workers and, in some situations under the NYCHRL, unpaid interns. Some entertainers, such as performers in Broadway theaters, meet this definition of “employee,” but many do not. A significant number of actors, musicians, comedians, and other entertainers do not get paid for their work, and many who do are more like independent contractors than employees. Several groups of comedians have found other means to combat sexual harassment. In the absence of specific legal remedies, they are turning to the theaters—and each other—to make their claims.

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transgender flagNo federal statute expressly protects workers from discrimination in employment on the basis of gender identity. Over the past several years, however, the Obama administration and several federal agencies have recognized protections against discrimination for transgender workers. This began with a ruling by the Equal Employment Opportunity Commission (EEOC), which found that gender identity discrimination may be considered sex discrimination under Title VII of the Civil Rights Act of 1964. Next came an executive order prohibiting gender identity discrimination in federal employment, as well as a memorandum from the Department of Justice (DOJ) and a new set of rules from the General Services Administration (GSA). These advances may be short-lived, with a new administration set to take over in January 2017, but they are worth reviewing.

Title VII prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a). The EEOC has found that this includes gender identity discrimination. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 12, 2012). In a later case, the agency ruled that Title VII requires employers to allow employees access to common restrooms matching their gender identity, and providing a single-user restroom specifically for transgender employees does not satisfy this requirement. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, (Mar. 27, 2015). It further held that an employer cannot, as a condition of granting these rights, require a transgender employee to provide proof of any medical procedure related to gender transitioning. These rulings apply to EEOC proceedings but are not necessarily binding on federal courts.

In July 2014, President Obama signed Executive Order 13672, which extended employment discrimination protection to transgender employees of the federal government and government contractors. The order amended two earlier executive orders. Executive Order 11246, issued by President Lyndon B. Johnson, prohibited employment discrimination within the federal government and by federal contractors based on Title VII categories. The Nixon administration amended this order with Executive Order 11478. Additional amendments added sexual orientation as a protected category, and this most recent order added gender identity.

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In vitro fertilizationPregnancy discrimination, which includes various adverse employment actions based on an employee’s pregnancy, recent childbirth, or related medical conditions, is prohibited by federal law and many state and local laws. Disparate treatment of employees who are pregnant or have recently given birth, however, is far from the only pregnancy-related issue affecting people in the workplace. The extent to which the Americans with Disabilities Act (ADA), which requires employers to make “reasonable accommodations” for employees with disabilities, applies to pregnant employees remains unclear from a legal standpoint. Infertility has also been an issue in some court cases, along with discrimination against employees who seek treatments involving assisted reproductive technologies (ART). Courts have reached varying conclusions about this issue.

The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination in the definition of unlawful sex discrimination. 42 U.S.C. § 2000e(k). This statute protects employees from adverse actions like firing, refusal to hire, or reduced hours or job duties unrelated to an employee’s ability to work. Amendments to the ADA in 2008 expanded that statute’s definition of “disability,” and several courts have held that this expanded definition includes some conditions related to pregnancy. Employees are also asking courts to find that employers must make reasonable accommodations for activities like breastfeeding or pumping breast milk during work hours. The Family Medical Leave Act (FMLA) can pertain to pregnancy discrimination, since it requires employers to give eligible employees unpaid time off for family medical situations, and it prohibits discrimination or retaliation based on the use of such leave.

The legal landscape regarding accommodations for pregnancy-related conditions remains unclear, and it is even less clear with regard to employees who undergo ART treatments. These treatments can range from medications intended to improve fertility to artificial insemination and in vitro fertilization (IVF). The issue of disability discrimination with regard to ART has received a fair amount of attention, such as when physicians deny treatment to someone because of an actual or perceived disability. Only a handful of court decisions address ART in the context of employment discrimination.

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child and fatherThe United States is one of the few countries in the world that make no legal provision for paid parental leave. Many companies voluntarily offer paid maternity leave, and some also offer paid paternity leave. The issue of providing paid leave for new mothers has received some attention—without much action—in the U.S. in recent years. Allowing new fathers to take time off from work to care for a newborn has not received as much attention. The federal Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., requires covered employers to allow unpaid medical leave in certain circumstances, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits sex discrimination in employment. These laws and recent amendments to the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., give new fathers some ability to fulfill their role as a parent without risking their job, but without any guarantee of pay for the time they take off.

A United Nations survey of 185 countries in 2014 identified only two countries with no legal mandate for paid maternity leave:  the United States and Papua New Guinea. Far fewer countries require paid paternity leave. The same UN report found that, out of 167 countries with available data, only 79 require paid or unpaid paternity leave. These range from one unpaid day of leave in Tunisia to 90 paid days in Iceland and Slovenia. Meanwhile, the public discourse in the U.S. surrounding this issue seems to be stuck on questions like whether or not paid parental leave actually constitutes paid vacation time.

The FMLA provides some protection for workers shortly after a child is born. It prohibits employers from denying or interfering with employees’ use of authorized unpaid leave, and it allows employees to sue for damages like lost wages and costs incurred because of a violation. 29 U.S.C. §§ 2615(a), 2617(a)(1). The NYCHRL prohibits discrimination against employees on the basis of certain care responsibilities. N.Y.C. Admin. Code §§ 8-102(30)(a), 8-107(1)(a).

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Bully Free ZoneHarassment in the workplace, including sexual harassment, is probably about as old as the workplace itself, but new and changing technologies are constantly challenging our legal mechanisms for dealing with this sort of behavior. In New York City, municipal, state, and federal laws prohibit sexual harassment and other forms of sex discrimination. The court decisions and regulations implementing these laws, however, do not necessarily address every possible scenario in which harassment may occur. Harassment that primarily occurs in the virtual world, such as on social media platforms or via email or text message, does not necessarily fit into our existing legal framework. Few court cases have directly addressed cyberbullying, as online harassment is often called, but the courts are sure to have to deal with the issue eventually. A particularly heartbreaking story out of Virginia shows the extent of the damage that cyberbullying among co-workers can cause, as well as the need for legal protections to deal with it.

Anti-discrimination statutes like Title VII of the Civil Rights Act of 1964 treat sexual harassment as a prohibited form of discrimination based on sex or gender. To rise to the level of a Title VII violation, the harassment must be based on the recipient’s sex, although this should not imply that members of the same sex cannot sexually harass one another. The harassment must also present a situation in which either the terms and conditions of employment are premised on some sort of sexual activity (quid pro quo sexual harassment), or the harassment occurs to such an extent that it renders the workplace intolerable (hostile work environment). Cyberbullying could fit into either of these categories.

A concise definition of “cyberbullying” is probably impossible. It includes hostile or harassing messages sent directly to someone via text message, email, or social media. It can also include posts that are visible to the public on blogs and social media platforms that are intended to harass a person or a group of people, such as by mocking or insulting them, or by portraying them in a false light. Individual acts of cyberbullying might, at first glance, seem fairly harmless, but cyberbullying is rarely limited to individual acts. It might involve ongoing, repeated messages or posts from one person, or a sustained campaign of harassment by large numbers of people. The impact of cyberbullying, according to research, can include negative effects on people’s health and productivity. In a few tragic cases, cyberbullying has allegedly been a contributing factor in suicide.

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Wall StreetWomen have made tremendous progress in the past four or five decades in the workplace, overcoming obstacles that had been in place for centuries, if not longer. Many hurdles remain, though, and some workplaces present far greater challenges than others. Wall Street is still, in many ways, a “boys’ club,” where women might not be expressly excluded but are also not always welcomed by the office culture. Twenty years ago, a group of women at a Wall Street financial company filed a lawsuit alleging sex discrimination, sexual harassment, and retaliation. Martens v. Smith Barney, Inc., No. 96-cv-03779, complaint (S.D.N.Y., May 20, 1996). The number of claimants grew to almost two thousand, and the defendant eventually paid out $150 million. The lawsuit brought some reforms to Wall Street’s culture, but sex discrimination in many forms remains a problem.

Sex discrimination in the workplace is prohibited under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 296; and the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-107. The U.S. Supreme Court established sexual harassment as a form of unlawful sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Subsequent cases have established the right to bring sexual harassment claims as a collective or class action. See, e.g. Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1304 (8th Cir. 1997) (“It should be obvious that the callous pattern and practice of sexual harassment…inevitably destroyed the self-esteem of the working women exposed to it.”)

The initial group of women who filed suit in Martens alleged multiple forms of sex discrimination that “transcend[ed] all aspects of employment.” Martens, complaint at 5. This included an applicant pool for brokers that favored men and “deliberately steer[ed] female applicants into the position of sales assistant,” which featured “duties…stereotypically assigned to women.” Id. at 6.

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Congress speechIn New York City, employees enjoy protection from a wide range of unlawful employment practices, including sexual harassment, under federal, state, and city laws. The City Council recently amended the New York City Human Rights Law (NYCHRL) to include unpaid interns under the law’s definition of a protected “employee.” Unfortunately, other anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 and most state laws, do not apply to unpaid interns. A series of bills currently pending in the U.S. Congress would add unpaid interns to several federal statutes dealing with sexual harassment and sex discrimination. The House of Representatives has passed one of these bills, but the Senate has taken no action. With the legislative session ending in a few months, it is unlikely that these particular bills will pass, but they offer a useful guide for actions the next Congress should take.

Courts have generally held that Title VII does not apply to unpaid interns, meaning that they cannot assert claims for sexual harassment under that statute. See O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). This lack of legal protection at the federal level is not limited to issues of discrimination and harassment. The Second Circuit Court of Appeals has also cast doubt on whether unpaid interns are considered employees for the purpose of wage and overtime claims under the Fair Labor Standards Act (FLSA). Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015).

In 2013, a New York City federal court dismissed a sexual harassment lawsuit brought under the NYCHRL, ruling that this statute also did not apply to unpaid interns. Wang v. Phoenix Satellite Television US, Inc., 976 F.Supp.2d 527 (S.D.N.Y. 2013). In response, the New York City Council amended the law to include unpaid interns. The amended NYCHRL defines an “intern” as someone working for “a fixed period of time” with no subsequent “expectation of employment,” who does not receive wages for their work, who performs the work as part of an educational program or in order to gain experience and training, who “does not displace regular employees,” and who works “under the close supervision of existing staff.” N.Y.C. Admin. Code § 8-102(28).

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snakeSexual harassment is recognized as a form of unlawful sexual harassment throughout the United States. Despite advances in employees’ ability to fight back against unwanted sexual remarks and advances, it remains a pervasive problem in just about every profession and industry. A recent report in the Washington Post highlights the difficulties faced by many female medical students as they go through the rigorous training required to become doctors. Federal law protects people from sex discrimination and sexual harassment in both the workplace and places of education. The standard medical school curriculum combines both of these, since medical students move from classroom instruction toward practical training in hospitals and clinics. This issue also highlights a difficult situation for unpaid interns, who have no specific protection from sexual harassment under federal law. Some cities, including New York, have enacted laws covering unpaid interns.

In New York City, federal, state, and city laws prohibit workplace sexual harassment. These statutes include Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq.; and the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq. Prohibitions in sex discrimination in education under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., also apply to sexual harassment in academic settings.

On-the-job training is a critical part of medical education. This can blur the line between the workplace and the classroom for medical students, who must perform internships as part of their degree program. Some, but not all, internships qualify as “employment.” Title VII does not necessarily cover unpaid interns, since they do not meet the statute’s definition of employment. See O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). A federal court held in 2013 that the NYCHRL similarly does not extend its protections to unpaid interns. Wang v. Phoenix Satellite Television US, Inc., 976 F.Supp.2d 527 (S.D.N.Y 2013). In response to the Wang ruling, the New York City Council amended the NYCHRL to include coverage for unpaid interns in education-related programs. N.Y.C. Admin. Code § 8-102(28).

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Iranian womanSexual harassment is a problem in workplaces all over the world, and while we should celebrate the progress made in this country in the past few decades, it is important also to note progress in other parts of the world. In early 2016, a female anchor at Press TV, Iran’s state-run, English-language news channel, released audio recordings of the channel’s news editor sexually harassing her. The ensuing scandal quickly resulted in the suspension of two executives, but it unfortunately also led to the anchor fleeing the country. A high-level media executive later resigned, and the Iranian president reportedly announced an effort to crack down on sex discrimination in the government. The Iranian legal system, according to numerous sources, heavily favors men over women in many aspects of society. While the long-term impact of the anchor’s case remains to be seen, it has at least produced a few hopeful signs.

Title VII of the Civil Rights Act of 1964 prohibits various forms of discrimination in the workplace, including discrimination on the basis of sex. At just over 50 years old, Title VII is still relatively new to America’s legal system. Sexual harassment did not acquire formal legal recognition as a form of unlawful sex discrimination for another 22 years, when the Supreme Court issued its decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). State laws and laws in some cities, such as the New York State Human Rights Law and the New York City Human Rights Law, also protect workers against sexual harassment and sex discrimination. Despite all these legal protections, and a growing public dialogue about how to prevent sexual harassment from occurring, it remains an ongoing problem across the country.

As a general rule, U.S. statutes only apply on U.S. territory. According to the Equal Employment Opportunity Commission, however, Title VII applies to U.S. citizens in a foreign country who work for a U.S.-based employer. A U.S. employer in a foreign country is not bound by Title VII, however, if compliance would violate a law in that country. See 42 U.S.C. § 2000e-1(b). Many countries have statutes that provide comparable or greater protections against sexual harassment, but the laws of some countries essentially establish sex discrimination, rather than fight against it. Sometimes, laws that appear to offer strong protections against sex discrimination actually offer few or none, due to a lack of enforcement.

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