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The legal landscape for caregivers in the U.S. is still largely uncertain when it comes to employment. The U.S. is one of the only countries in the world with no provisions at the national level for paid parental leave. Protections for caregivers against employment discrimination are patchy. New York City caregiver discrimination attorneys have more options than their colleagues in other cities, thanks to provisions in the New York City Human Rights Law (NYCHRL) that expressly address caregivers. Other statutes may offer protection to caregivers in certain situations. Last year, the Equal Employment Opportunity Commission (EEOC) settled a gender discrimination lawsuit against a major cosmetics company. The agency had alleged that the company discriminated against male employees by allowing female employees to take more paid parental leave. EEOC v. Estee Lauder Companies, Inc., No. 2:17-cv-03897, complaint (E.D. Pa., Aug. 30, 2017).

Two federal statutes directly address employment discrimination on the basis of sex. Title VII of the Civil Rights Act of 1964 prohibits a wide range of discriminatory acts based on sex and other factors. 42 U.S.C. § 2000e-2(a). The Equal Pay Act (EPA) of 1963 prohibits discrimination in wages based on sex, provided that the alleged disparity in pay involves jobs “requir[ing] equal skill, effort, and responsibility…under similar working conditions.” 29 U.S.C. § 206(d)(1). No federal statute directly addresses discrimination on the basis of caregiver responsibilities. The NYCHRL is one of the first employment laws in the country to provide express protections on this basis. See N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

The defendant in the Estee Lauder case offered paid parental leave to qualifying employees under four programs: “maternity leave, adoption leave, primary caregiver leave, and secondary caregiver leave.” Estee Lauder, complaint at 5. Three of these programs included at least four weeks of paid leave, with maternity leave lasting as long as six weeks. The secondary caregiver leave program, however, only allowed two weeks of paid leave. Employees using maternity, adoption, or primary caregiver leave were also entitled to a “transition back-to-work benefit,” which allowed them to gradually return to a full-time schedule over an additional four-week period. Id. at 5-6. The primary caregiver benefit was only available “in surrogacy situations.” Id. at 7. According to the EEOC’s complaint, the defendant only allowed biological fathers to utilize the secondary caregiver benefit.
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Employees who are pregnant or have recently given birth are protected from discrimination under multiple statutes. New York City pregnancy attorneys may draw on two federal statutes: Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978; and the Family and Medical Leave Act (FMLA) of 1993. A plaintiff recently obtained a $500,000 judgment against her former employer in a lawsuit that asserted claims for pregnancy discrimination under both statutes. Ota v. Trustees of the Univ. of Pa., et al, No. 2:18-cv-01651, complaint (E.D. Pa., Apr. 19, 2018).

Title VII prohibits employment discrimination on the basis of five factors: “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The PDA amended Title VII’s definition of discrimination “on the basis of sex” to include discrimination based on “pregnancy, childbirth, or related medical conditions.” Id. at § 2000e(k). The FMLA, meanwhile, requires covered employers to provide qualifying employees with a certain amount of unpaid leave for medical purposes, either for themselves or for a family member. Employers may not “interfere with, restrain, or deny the exercise of” a right provided by this statute, nor may they discriminate or retaliate against an employee who complains about an alleged violation. 29 U.S.C. § 2615(a).

The plaintiff in Ota is a “pathologist and clinical microbiologist.” Ota, complaint at 1. She held two positions prior to giving birth to a child in 2015: Director of the Clinical Microbiology Lab at the Children’s Hospital of Philadelphia (CHOP), and Assistant Professor in the Pathology and Laboratory Medicine Department at the University of Pennsylvania. Id. She states in her complaint that she was hired by both employers at about the same time in 2011, although she was not promoted to the position of laboratory director at CHOP until 2012.

The U.S. Supreme Court is considering whether to hear a dispute over whether the provisions of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination on the basis of sex apply to gender identity and gender expression discrimination. New York City employment discrimination attorneys may rely on the New York City Human Rights Law, but elsewhere, the extent of legal protection is far less clear. The case before the U.S. Supreme Court, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, is an appeal from a Sixth Circuit ruling in favor of an employee who alleges that her employer fired her shortly after she informed them that she was transgender. The U.S. Department of Justice (DOJ) filed a brief with the Supreme Court in October 2018 that sides with the employer. One year earlier, it rescinded a policy memorandum regarding gender identity discrimination and Title VII issued during the Obama administration.

Title VII states that an employer commits an unlawful employment practice when they discriminate against an individual “because of such individual’s…sex” or certain other factors. 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has identified “sex stereotyping”—”evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group”—as a form of sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). The Equal Employment Opportunity Commission (EEOC) expressly identified “discriminat[ing] against someone because the person is transgender” as a violation of Title VII. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

Former Attorney General Eric Holder issued a memorandum in December 2014 taking the position that Title VII’s provisions on sex discrimination in employment apply to discrimination on the basis of gender identity and gender expression. Under new management in October 2017, the DOJ rescinded this memorandum. It replaced it with a new memorandum stating that “‘Sex’ is ordinarily defined to mean biologically male or female,” and that discrimination “because of sex” therefore does not include gender identity and expression.
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New York City employees are expressly protected from discrimination on the basis of pregnancy under state and federal law. City and state law make up for a gap in federal protection by requiring certain reasonable accommodations for workers who are pregnant or have recently given birth. One area where state and city law do not provide protection, as New York City pregnancy discrimination attorneys have often encountered, is in the area of accommodations for breastfeeding employees. Federal law requires employers to provide unpaid breaks and a private location for workers to express breast milk. About a year ago, New Jersey amended its antidiscrimination statute to include breastfeeding as a distinct protected category, and to require reasonable accommodations for breastfeeding employees.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, defines sex discrimination to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) identifies familial status as a protected category, defining it to include being “pregnant or ha[ving] a child .” N.Y. Exec. L. §§ 292(26), 296(1)(a). The New York City Human Rights Law (NYCHRL) does not specifically include pregnancy as a protected category. It does, however, protect against employment discrimination based on “caregiver status,” defined to include “provid[ing] direct and ongoing care for a minor child.” N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

Pregnant employees, and those who have recently given birth, often require accommodations in the workplace, such as additional breaks for restroom use and to drink water, lifting restrictions and other physical limitations, and changes to shift schedules. Federal law does not require reasonable accommodations in cases of pregnancy or childbirth, except with the possible exception of conditions that meet the definition of “impairment” under the Americans with Disabilities Act. See 29 C.F.R. Appendix to § 1630(h). State law requires employers to provide reasonable accommodations for “pregnancy-related conditions,” generally defined as conditions “that inhibit[] the exercise of a normal bodily function.” N.Y. Exec. L. §§ 292(21-f), 296(3)(a). City law requires reasonable accommodations that “allow the employee to perform the essential requisites of the job.” N.Y.C. Admin. Code § 8-107(22)(a). Both laws include “undue hardship” exceptions for employers.
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Since the fall of 2017, the national discourse has given considerable attention to the issue of sexual harassment in the workplace, perhaps more than it has ever received before. This is often referred to as the #MeToo movement. According to some news reports, it has left managers, supervisors, and executives in some industries uncertain about the future. In late 2018, Bloomberg reported that some Wall Street managers have adopted a new rule: “Avoid women at all costs.” Hyperbole aside, this reveals what could become a larger problem. In an effort to avoid what they perceive as risks for future sexual harassment claims, could employers perpetuate other forms of sex discrimination? One column describes this as a possible “unintended consequence” of #MeToo, as if women and their advocates somehow bear some share of responsibility. Other pieces take tones that range from scolding to mocking. For New York City sexual harassment attorneys, this is a very serious question.

Employment discrimination on the basis of sex is prohibited in New York City under three statutes: Title VII of the federal Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). An employer violates the law if they refuse to hire, refuse to promote, terminate, or otherwise discriminate against an individual based on their sex. These laws protect both men and women, although it is women who bear the brunt of sex discrimination in the workplace, both historically and currently. Provisions in the NYCHRL additionally protect transgender and non-binary workers against discrimination.

Sexual harassment constitutes sex discrimination under these statutes in two general scenarios: quid pro quo sexual harassment and hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a form of sex discrimination under Title VII more than thirty years ago in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). It expanded this to include same-sex sexual harassment, e.g. male employees subjecting another male employee to a hostile work environment, twelve years later in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
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A jury in a Manhattan federal court returned a verdict this summer in favor of a professor who formerly taught at a university in New York City, and awarded her $1.25 million in damages. The plaintiff alleged sex discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL). Ravina v. Columbia University, No. 1:16-cv-02137, 1st am. complaint (S.D.N.Y., Jul. 8, 2016). The verdict demonstrates how different claims under Title VII may operate independently of one another. The jury actually found in favor of the defendant on the claims involving sex discrimination and sexual harassment. It rendered a verdict in the plaintiff’s favor, however, on her retaliation claims. New York City sexual harassment attorneys often present harassment and retaliation claims side by side, but the two claims involve two different statutory provisions. To borrow a phrase from the political realm, if sexual harassment is the crime, retaliation is often the cover-up.

Discrimination in employment on the basis of sex is an “unlawful employment practice” under Title VII and the NYCHRL. 42 U.S.C. § 2000e-2(a)(1), N.Y.C. Admin. Code § 8-107(1)(a). Multiple court decisions have established that sexual harassment is a form of sex discrimination in two broad categories: when sexual activity in some form is made a condition of employment, and when pervasive and unwelcome sexual remarks or behavior create a hostile work environment. Both laws also state that an employer commits an unlawful employment practice when they discriminate against an employee because they have “opposed any [unlawful employment] practice,” made a complaint alleging an unlawful employment practice, or cooperated in an investigation of an alleged unlawful employment practice. 42 U.S.C. § 2000e-3(a), N.Y.C. Admin. Code § 8-107(7).

A plaintiff, generally speaking, has the burden of proof in a civil lawsuit. They must establish the defendant’s liability by a preponderance of the evidence. A plaintiff must demonstrate to the finder of fact—a judge or jury—that at least fifty-one percent of the evidence supports their allegations against the defendant. If the finder of fact concludes that the plaintiff has not met this burden of proof, they must render a verdict in the defendant’s favor. This does not necessarily mean that the plaintiff’s claims are false or have been disproven. It only means that the plaintiff did not produce sufficient evidence to convince the judge or jury.
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The theater offers actors, directors, producers, and others countless opportunities for artistic expression. Unfortunately, what might seem like bold artistic expression to a few people often looks like harassment to others. Even more unfortunately, the theater is prone to the same power dynamics and imbalances that New York City sexual harassment lawyers see in almost every type of workplace. For more than a year, the country’s attention has been focused on abuses of power in film, television, and other media—mostly but not exclusively men—resulting in sexual harassment and assault. The theater business is no different, but many theaters are now acknowledging the problem. In addition to removing individuals accused repeatedly of harassment, some theaters are working to change their cultures. A theater near New York City recently fired its longtime artistic director after multiple allegations sexual harassment, and then announced changes to its “big personality workplace culture.”

Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of numerous factors, including sex. Sexual harassment in the workplace constitutes unlawful employment discrimination when sexual activity is made a condition of employment, or when it creates a hostile work environment that prevents an individual from doing their job. These laws give aggrieved employees recourse in the court system, allowing them to recover monetary damages and other relief. These laws are not very effective, however, at changing the workplace cultures that allow sexual harassment to occur, or even flourish.

Discrimination lawsuits brought by agencies like the Equal Employment Opportunity Commission (EEOC) occasionally lead to changes in workplace culture. A settlement or judgment might require an employer to adopt policies and provide training regarding sexual harassment. The EEOC has the authority, and ostensibly has the resources, to monitor compliance with such provisions. The extent to which they are successful in changing workplace culture is a matter of debate. Real change, as the saying goes, must come from within.
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The performing arts, including music, theater, and dance, are among the most famous features of New York City. Sexual harassment is unfortunately still common for performers and workers, despite recent efforts to bring attention and consequences to those who perpetrate or enable this sort of conduct. Statutes like the New York City Human Rights Law (NYCHRL) view certain types of sexual harassment as unlawful discrimination in employment on the basis of sex. A recent lawsuit filed against the city’s largest ballet company demonstrates that laws like the NYCHRL are not the only tools available to New York City sexual harassment lawyers. A former student at the ballet’s dance school alleges that the ballet company negligently allowed an environment of sexual harassment in Waterbury v. N.Y.C. Ballet, Inc., et al, No. 158220/2018, am. complaint (N.Y. Sup. Ct., N.Y. Cty., Sep. 18, 2018).

Hostile work environment is one type of sexual harassment covered by the NYCHRL and other statutes. It occurs when unwelcome sexual remarks, jokes, or advances impede an individual’s ability to perform their job duties. If acts allegedly constituting a hostile work environment also threaten workplace safety, privacy, or other legal interests, a negligence claim may be possible. Negligence is based on common-law principles. A plaintiff must establish four elements: 1) the defendant owed a duty of care to the plaintiff or the general public; 2) the defendant breached that duty; 3) the breach was the cause-in-fact of the plaintiff’s injuries; and 4) the plaintiff suffered measurable, compensable damage. Businesses have a duty to provide a reasonably safe environment for customers, employees, and others who would ordinarily be expected to be present on their premises. Employers have a duty to provide reasonably safe work environments for their employees.

The plaintiff in Waterbury is a ballet dancer and a former student at the ballet company’s school. She alleges that the company maintains a “fraternity-like atmosphere” that “emboldens [it and its dancers] to disregard the law and violate the basic rights of women.” Waterbury, complaint at 2. She studied at the ballet company’s dance school, and entered into a dating relationship with a male dancer. Her complaint describes a wide range of alleged conduct by dancers and others in the ballet company, and alleges that the company either ignored or enabled the conduct “so long as the institution continued to sell tickets and was profitable.” Id. at 8.
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New York City is renowned for its theater scene. Broadway theaters offer some of the best and most well-regarded productions in the world. The various levels of “off-Broadway” theaters offer everything from the familiar to the avant-garde. Given what we know about other media industries, it should be no surprise that theater workers must also deal with sexual harassment. New York City’s theater scene has taken some steps to address the issue, but it remains a serious problem. Reports from earlier this year revealed allegations of sexual harassment and assault in a popular “immersive” theater production, where audience members may interact directly with performers, and a few have allegedly groped cast members. In order to address this sort of situation, New York City sexual harassment attorneys may not only have to identify the legal relationships between the various parties, but also the ways in which the nature of the production itself could put people at risk.

Under statutes like the New York City Human Rights Law, sexual harassment is an unlawful form of sex discrimination in two broad scenarios. Quid pro quo sexual harassment occurs when an individual with managerial or supervisory authority demands some sort of sexual activity in exchange for employment or various perks of employment. One example of this in the entertainment world is the “casting couch,” in which a producer or director will cast someone in their production in exchange for sexual activity.

The other legally-actionable form of sexual harassment occurs when a pattern of unwelcome sexual conduct creates a hostile work environment that inhibits the ability to do one’s job. The perpetrators of a hostile work environment do not have to be in a superior position to the complainant for a claim to be viable. They could be co-workers, customers, or audience members. The complainant must, however, be able to show that the employer knew about the harassment and failed to take reasonable steps to deal with it.
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Courts routinely encourage litigants to use alternative dispute resolution (ADR). These methods offer some advantages, such as avoidance of long backlogs in the court system, but some common features of ADR tend to favor employers over employees. ADR procedures, for example, are private, and often include nondisclosure agreements that prevent New York City sexual harassment attorneys or their clients from discussing or disclosing details of their cases. This can put other employees at a disadvantage, as it keeps important information about their workplace secret. Recent amendments to New York state law seek to prohibit mandatory arbitration of employment disputes involving sexual harassment claims. That law, however, could be subject to a challenge under federal law, which is far more amenable to mandatory arbitration. It is therefore welcome news that several tech companies, many of which employ thousands of people in New York, are voluntarily dropping mandatory arbitration of sexual harassment claims from their employment agreements.

Sexual harassment in the workplace is considered a form of unlawful sex discrimination under the New York State Human Rights Law (NYSHRL), as well as federal and New York City law. Employment contracts requiring arbitration of disputes effectively bar employees from taking their claims to court. An arbitration proceeding resembles a trial in many ways, but various features—from the choice of arbitrator to the cost of the process—are often favorable to employers. The use of nondisclosure clauses also often benefits employers more than employees. If the results of an arbitration proceeding are kept confidential, it could mean that important information about an employer is not available to employees and prospective employees.

The Federal Arbitration Act (FAA) of 1925 establishes a strong preference for arbitration of disputes, and agreements among parties to submit disputes to arbitration. The statute declares that an agreement to arbitrate is “valid, irrevocable, and enforceable” as long as it comports with the general laws governing contracts. 9 U.S.C. § 2. Courts must stay proceedings brought by a party to an arbitration agreement upon the request of any other party to that agreement. The statute directs courts to confirm arbitration awards as court orders, except in very limited circumstances. Courts may only vacate an arbitration award if a party can show fraud, coercion, corruption, or other misconduct by an arbitrator. They may only modify an award upon a clear showing of error.
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