New York Employment Attorney Blog — Published by New York Employment Lawyers

April 9, 2021

New York City Gamers, Gaming Industry Workers Gain New Tools to Fight Sexual Harassment Online

The issue of sexual harassment in the workplace and elsewhere has received significant attention in recent years, but much progress remains to be made. As New York City sexual harassment attorneys, we continue to hear from workers in many different industries about their experiences. Sexual harassment is not limited to the workplace. Last summer, we wrote about how sexual harassment in the video game industry affects both employees of the companies that produce games and the gamers that play them. Online gaming, live-streaming, and other features of the video game industry have long had serious problems with harassment. The law offers some tools that employees can use to fight back. Gamers and others who participate in gaming communities do not have the same legal protection, but they are not helpless. At the end of 2020, one of the biggest companies that provides live-streaming services for gamers announced a new policy that cracks down on harassment on its platform.

Laws like the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) prohibit sexual harassment in the workplace, viewing it as a form of sex discrimination. Employers violate these laws when someone in a supervisory or managerial role requests sexual activity of some sort as a condition of employment. They also commit an unlawful employment practice when they allow employees, customers, or others in the workplace to perpetrate a hostile work environment.

Many employment laws only protect employees against unlawful activity by their own employer. The NYSHRL expands its protections against sexual harassment beyond employees. Independent contractors, vendors, unpaid interns, and others who are in a workplace for business reasons are also protected against all forms of unlawful discrimination. Domestic workers are protected against sexual harassment in their workplaces. It is not clear, however, if the NYSHRL or similar statutes protect individuals who participate in online gaming, but are not directly employed by any of the businesses involved.

March 30, 2021

New York City Sexual Harassment Lawsuit Alleges “Boys’ Club” Culture at Financial Firm

by Phillips & Associates

While sexual harassment can and does occur in every kind of workplace in the country, certain industries have developed a reputation for harassment based on employees’ gender. Most New York City sexual harassment attorneys have probably represented individuals who experienced sexual harassment in the financial sector. Wall Street is often described as a “boys’ club,” and a lawsuit filed in late 2020 uses that exact term to describe the defendant employer’s work environment. The plaintiff alleges inappropriate behavior of a sexual nature in the workplace, as well as harassment that, while not overtly sexual, targeted her on the basis of her gender. She further claims that the defendant fired her in retaliation for opposing the alleged harassment. The lawsuit asserts claims for gender discrimination and retaliation in violation of city and state law.

Sexual harassment is a form of gender discrimination under city, state, and federal law. This includes unwelcome conduct based on sex that is so severe or pervasive that it creates a hostile work environment. This could be explicitly sexual behavior, such as an office culture that allows bawdy jokes and other inappropriate banter. It could involve more invasive harassment, such as sexual overtures, unwanted physical contact, or worse. It can also consist of hostility that is not inherently prurient, such as negative remarks about women’s ability to do certain jobs. All of these examples could occur anywhere, but they can be especially pronounced in workplaces that have traditionally been dominated by men.

The plaintiff began working for an investment bank in Manhattan in 2019, shortly after graduating from college. She states that she met the firm’s then-managing director during her senior year, and claims that he essentially recruited her to come work for him and offered to be her mentor. She alleges that he described the job as “a new business development role,” but that it “morphed into an administrative position” with relatively low pay. She further alleges that, shortly after she started working for the defendant, she “observed two high-level women…discriminated against and pushed out of the firm.”
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March 23, 2021

New York Provides Paid Leave for Workers To Get COVID-19 Vaccine, but Might Leave Out Workers With Caregiver Responsibilities

by Phillips & Associates

New York City employment discrimination lawyers can draw from a wide range of statutes to assist workers who have experienced adverse actions by their employers in violation of the law. The city’s antidiscrimination law is one of the only ones in the country to protect employees with caregiving responsibilities for family members or others. The COVID-19 pandemic, unfortunately, has shown some gaps in the law’s coverage. A new state law provides paid leave for workers to receive the COVID-19 vaccine. This new law does not specifically cover caregivers who may need to take time off from work to accompany a person under their care while they get the vaccine. It is possible, however, that city law might protect an employee with this sort of responsibility.

The New York City Human Rights Law (NYCHRL) prohibits discrimination based on “caregiver status.” N.Y.C. Admin. Code § 8-107(1)(a). A caregiver has responsibility for a minor child or a “care recipient.” The latter term refers to an individual who:
1. Resides in the caregiver’s household or is a “covered relative” of the caregiver; and
2. Depends on the caregiver “for medical care or to meet the needs of daily living.” Id. at § 8-102.

The term “covered relative” includes close relatives like minor or adult children, spouses and domestic partners, parents, grandparents, and siblings. The statute allows the New York City Commission on Human Rights (CHR) to add other “familial relationships” to the definition of “covered relative.” So far, the CHR has not done so. It currently has no rules specifically interpreting the NYCHRL’s provisions on caregiver discrimination.

March 16, 2021

New York City Adopts Final Rule on Hairstyle Discrimination in Employment

by Phillips & Associates

Discrimination in employment on the basis of race or religion violates every antidiscrimination statute in the country. These are among the practices that brought on the passage of the first such laws decades ago. Despite a great deal of progress, much work remains to be done. As New York City employment discrimination attorneys, we have seen many ways that employers have subjected workers to adverse treatment because of race or religion, while making it seem like it has nothing to do with either. Whether this is intentional on employers’ part is not nearly as important as the impact it has on workers throughout the city and country. Hairstyle discrimination is a major area of ongoing race or religious discrimination that might not look like race or religious discrimination to many people. New York City issued guidance on this issue in 2019. The New York State Legislature included it in the state’s antidiscrimination law the same year. In early 2021, the New York City Commission on Human Rights (CHR) issued a final rule formalizing a ban on hairstyle discrimination.

The CHR issued guidance on hairstyle discrimination in February 2019. It interpreted the prohibitions on race and religious discrimination in the New York City Human Rights Law to protect workers’ right to “hairstyles that are closely associated with their racial, ethnic, or cultural identities.” It noted that, for Black workers, employers’ policies on grooming and appearance can exclude their natural hair. Many Black workers have had to obtain expensive and damaging hair treatments simply to comply with their employers’ policies. It further noted that some communities “have a religious or cultural connection with uncut hair.”

While the CHR’s guidance document only expressed the agency’s interpretation of city law, state lawmakers made some of these protections explicit in the New York State Human Rights Law later in 2019. A bill signed by the governor that July added two new definitions to the statute. The term “race” now includes “traits historically associated with race,” with specific reference to “hair texture and protective hairstyles.” N.Y. Exec. L. § 292(37). “Protective hairstyles” includes “braids, locks, and twists.” Id. at § 292(38). The CHR’s guidance included additional examples, such as “cornrows, Afros, Bantu knots, [and] fades.”

March 4, 2021

Defendant in New York City Sexual Harassment Lawsuit Countersues for Defamation

by Phillips & Associates

Asserting a claim for sexual harassment usually requires alleging and then describing objectionable behavior by one or more people. New York City sexual harassment attorneys must always take care that the allegations made in court filings are backed up by evidence. Individuals accused of sexual harassment may decide to strike back in court through counterclaims for defamation. State law protects plaintiffs and their attorneys, however, from liability for defamation for statements made as part of official court proceedings. A lawsuit filed in 2020 alleges sexual harassment against a co-worker and retaliation by their employer. The defendant co-worker filed a counterclaim for defamation, and included statements made in the plaintiff’s complaint as part of the allegedly defamatory speech. The plaintiff has moved to dismiss the counterclaim.

Under both the New York State Human Rights Law and the New York City Human Rights Law, unlawful sex discrimination includes certain forms of sexual harassment. One unlawful form of sexual harassment, known as hostile work environment, occurs when one or more people make unwelcome sexual comments or engage in unwelcome behavior related to sex, and the conduct is so pervasive or severe that it interferes with a person’s ability to perform their job duties. In order to make a hostile work environment claim, it is necessary to describe the harassing conduct in court pleadings.

Defamation is a type of personal injury claim for harm caused by false statements. It requires a difficult burden of proof, since it asks a court to penalize someone for the content of their speech despite First Amendment protections. The elements of a defamation claim under New York law are complicated, and depend in part on the type of allegedly defamatory statement, and in part on the extent to which the person claiming defamation is known to the public. The first two elements in any defamation claim under New York law are (1) a false statement (2) made to another person “without privilege or authorization.” Court proceedings offer a form of privilege.
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February 26, 2021

New York City EMT Settles Sexual Harassment Lawsuit

by Phillips & Associates

Employment discrimination on the basis of sex, including sexual harassment, violates nearly every employment statute in the country. It persists in workplaces for a vast array of reasons. New York City sexual harassment attorneys often see examples that result from people’s inability — or refusal — to separate someone’s public persona from their inherent dignity as a person. People who work in the entertainment industry regularly experience this. Late last year, an emergency medical technician (EMT) with the New York City Fire Department (FDNY) settled a lawsuit against the city that involved allegations of sexual harassment based, in part, on her prior career in reality television. The city agreed to pay $350,000 to settle the suit.

Sexual harassment is considered unlawful sex discrimination under the New York City Human Rights Law (NYCHRL) and other statutes. An employer violates city law when it allows unwelcome sexual conduct in the workplace to become so severe or pervasive that it creates a hostile work environment. This usually involves ongoing patterns of behavior, but a single incident can support a hostile work environment claim if it is severe enough. In either case, the behavior must create enough of a disruption to the workplace that an objective observer would consider it unreasonably hostile. A situation where the claimant is a specific target is probably more likely to succeed as a hostile work environment claim, but targeting is not necessarily required.

The case against the FDNY involved allegedly targeted behavior. The plaintiff was a cast member on a reality television program, which was known for depicting people in a “party” lifestyle, in 2009 and 2010. She has made additional appearances in various shows since then. According to her complaint, she “decided to pursue her dream” of becoming an EMT in 2014, and began working for the FDNY as an EMT on Staten Island in 2016. She suffered an on-the-job injury in 2016 that kept her from working for almost a year. Another injury on the job in 2017 resulted in a restriction to “light duty” when she returned to work. This is when the alleged harassment began.
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February 22, 2021

How New York City May Protect Paternity Leave Where Federal Law Falls Short

by Phillips & Associates

New York City’s employment discrimination laws cover a wider range of protected categories than most similar laws around the country. The New York City Human Rights Law (NYCHRL) cover some gaps left in federal law, which protects against discrimination on the basis of a relatively small list of factors. A decision by a Manhattan federal judge in late 2020, for example, dismissed pregnancy discrimination claims under federal, state, and city law by a father who lost his job after taking paternity leave. It essentially held that he could not bring a claim for pregnancy discrimination because he was never pregnant. The court’s decision does not mention the NYCHRL’s provisions regarding caregiver discrimination, which could cover a father of a newborn.

The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act to include pregnancy discrimination in the definition of sex discrimination. See 42 U.S.C. § 2000e(k). In addition to pregnancy itself, Title VII prohibits discrimination due to childbirth and medical conditions related to either pregnancy or childbirth. The NYCHRL goes a step farther and requires employers to make reasonable accommodations for pregnant and nursing employees.

Federal law acknowledges the role of fathers, or any parent who did not gestate and give birth to a child, in the Family and Medical Leave Act (FMLA). This law requires covered employers to provide unpaid leave to qualifying employees for certain reasons, including caring for a newborn child. The U.S. Supreme Court noted that the statute addresses “mutually reinforcing stereotypes [that] created a self-fulfilling cycle of discrimination” on the basis of sex. Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003). Employers must provide leave regardless of gender, ensuring “that employers could not evade leave obligations simply by hiring men.” Id. at 737. The FMLA does not, however, address discrimination outside of the context of unpaid family leave.

February 10, 2021

New York City School Athletic Programs Deal with Gender Identity Discrimination

by Phillips & Associates

Employment discrimination on the basis of gender identity and gender expression violates both New York State and New York City laws. City and state laws addressing discrimination in education also prohibit this type of discrimination. As New York City employment discrimination attorneys, we have observed many similarities between discrimination in school programs and discrimination in the workplace. While the new administration in Washington DC is taking a much different approach to issues of gender identity and gender expression than its predecessor, it remains a controversial issue, especially with regard to school sports. Discrimination in school sports can keep students from having access to sports at all, which can have wide-ranging effects. New York City and New York State have taken an inclusive approach, unlike many jurisdictions around the country.

New York State’s employment antidiscrimination law expressly bars discrimination based on “gender identity or expression.” N.Y. Exec. L. § 296(1)(a). Its definition of this term includes a person’s actual “gender-related characteristic[s],” as well as characteristics perceived by others and attributed to a person, and includes both transgender and nonbinary statuses. Id. at § 292(35). New York City law prohibits gender discrimination in employment, which includes gender identity and gender expression “regardless of the sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102.

State law generally prohibits discrimination on the basis of sex in education programs, including allowing people to participate on “state public and high school athletic teams.” N.Y. Educ. L. § 3201-a. The statute does not specifically mention gender identity or gender expression, but it directs the state’s commissioner of education to establish further regulations on the matter. Athletics present a somewhat different issue than many other concerns regarding discrimination since they tend to be separated based on sex or gender.

February 4, 2021

Gender Identity Discrimination Persists in Many STEM Fields in New York City

by Phillips & Associates

The gender gap in employment has received much attention in recent years, and with good reason. Despite advances in opportunities for people of all genders, many disparities still exist in terms of wages and job opportunities. Discrimination on the basis of gender identity and gender expression remains a serious problem. New York City workplace discrimination laws exist, in part, to give workers a way to push back against discriminatory acts by employers. Not all discrimination is intentional, though, and some workplaces seem more prone than others to unconscious biases. Last fall, the scientific journal Nature published accounts by LGBT+ individuals working in STEM fields (Science, Technology, Engineering, and Mathematics) describing their experiences.

Discrimination on the basis of gender identity and gender expression violates multiple employment statutes in New York City. State law specifically identifies gender identity and gender expression as protected categories. N.Y. Exec. L. § 296(1)(a). New York City’s antidiscrimination statute prohibits discrimination on the basis of gender, and its definition of the term includes actual and perceived gender identity or modes of expression. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

Federal law prohibits discrimination in employment and education on the basis of sex. See 42 U.S.C. § 2000e-2(a), 20 U.S.C. § 1681(a). While the definition of “sex” found in Title VII of the Civil Rights Act of 1964 has some nuance, Congress has never expressly included gender identity or sexual orientation in that definition. In 2020, however, the U.S. Supreme Court ruled that discrimination on the basis of either sexual orientation or gender identity is, in fact, discrimination based on a person’s sex in violation of Title VII. The ruling, Bostock v. Clayton County, only dealt with Title VII and employment discrimination, not Title IX’s provisions on sex discrimination in education. It is possible, however, that the court may extend the ruling to Title IX as well.

January 31, 2021

New York City Class Action Alleges Widespread Pregnancy Discrimination

by Phillips & Associates

New York City pregnancy discrimination laws offer some of the most extensive protections to workers in the whole country. Federal law classifies discrimination on the basis of pregnancy as a form of sex discrimination. State and city law goes further, requiring employers to make reasonable accommodations for pregnant employees and employees with newborn children. The New York City Human Rights Law (NYCHRL) goes further still, requiring employers to provide private, sterile lactation rooms where workers can express breast milk, along with facilities for storing milk while at work. A class action filed in a Brooklyn federal court alleges that the police department failed to provide lactation facilities for employees as required by law. The lawsuit was filed more than a year ago and is in the process of seeking class certification.

Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of pregnancy, childbirth, and related medical conditions in its definition of sex discrimination. The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of familial status, which includes pregnancy, childbirth, and parenthood. It also states that an employer commits an unlawful discriminatory practice when they fail to provide reasonable accommodations for an employee’s pregnancy-related conditions.

A law passed by the New York City Council several years ago added provisions to the NYCHRL regarding accommodations for new parents who are nursing. Employers must provide a “lactation room,” defined as “a sanitary place, other than a restroom,” that is “shielded from view and free from intrusion.” N.Y.C. Admin. Code § 8-102. The room must include a power outlet, a place to sit, and a surface to place a pump and other items. It must be located near a sink or water fountain, and “in reasonable proximity to [an] employee’s work area.” Id. at § 8-107(22)(b)(i).