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New York City’s Fair Chance Act (FCA), which took effect in 2015, bars employers from asking about a job applicant’s criminal history during the initial stages of the application process. The FCA draws extensively from state law provisions that outline a procedure employers must follow when considering a job applicant’s arrest or conviction records later in the hiring process. A bill passed by the New York Legislature earlier this year amends the New York State Human Rights Law (NYSHRL) to expand the list of items that employers may not inquire about or act upon with regard to criminal history. The new provisions will take effect on July 11, 2019. New York City has updated its enforcement guidance on the FCA in anticipation of the new state law provisions.

Employers in New York City may only inquire about an applicant’s arrest or conviction history once they have made a conditional offer of employment. N.Y.C. Admin. Code § 8-107(11-a)(b). Even after employers obtain criminal history information, they are limited in their ability to use it to make any adverse decision. The FCA requires employers to follow the procedures outlined in Article 23-A of the New York Corrections Law. These state-law provisions identify factors that employers must consider in assessing an applicant’s criminal history, such as the relevance of the criminal offense to the job sought. If an employer makes an adverse decision, e.g. a decision not to hire the person, because of their criminal history, they must provide a written statement to the applicant explaining their decision, and they must give the applicant an opportunity to respond.

The NYSHRL bars employers from inquiring about or considering certain types of criminal history at any point in the application process. See N.Y. Exec. L. § 296(16). Currently, this includes criminal proceedings that were terminated by the state, followed by a sealing of the file. It also includes cases in which the job applicant was adjudicated as a youthful offender, and other proceedings in which the records have been sealed. New York City has adopted these standards as part of city law. N.Y.C. Admin. Code § 8-107(11). The Governor of New York signed S. 1505-C into law on April 12, 2019. The new law amends § 296(16) to add “an order adjourning the criminal action in contemplation of dismissal” (ACD) to the list of items that employers may not consider. N.Y. L. 2019, c. 55, pt. II, subpt. O, § 2.
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The plaintiffs in a New York City sexual harassment lawsuit, which gained prominence in large part because of the #MeToo movement, recently filed affidavits containing additional allegations of harassment by the defendant against themselves and others. The affidavits are a response to a motion to dismiss filed by the defendant, a television host who lost his show after multiple women accused him of sexual harassment in late 2017. The lawsuit, filed in May 2018 in state court in Manhattan, alleges violations of the New York City Human Rights Law (NYCHRL). It names the host and the television network as defendants. The plaintiffs settled with the network in late 2018. The defendant host moved to dismiss the lawsuit in September 2018, claiming that the plaintiffs failed to state “valid causes of action” for their claims of sex discrimination, retaliation, and aiding and abetting.

The NYCHRL prohibits discrimination on the basis of numerous factors, including gender. Court decisions have recognized sexual harassment as gender discrimination in violation of this and similar statutes. Unlawful sexual harassment includes scenarios in which an employer creates or allows a “hostile work environment” consisting of unwelcome and pervasive sexual conduct, ranging from jokes or remarks to overtures or contact. It also includes “quid pro quo” situations in which acceding to demands for some form of sexual activity is a condition of employment. Retaliation for opposing or reporting suspected violations is itself an unlawful employment practice under the NYCHRL.

According to their complaint, the three plaintiffs were “all in their low 20s” when they worked for the defendant host, who was “in his mid-70s.” They began working for the network during a span of time from late 2015 to early 2017, and they allegedly experienced sexual harassment by the host during 2017. They allege that the host had a history of sexual harassment complaints going back at least as far as the 1980s, and that the network knew about this but “failed to take any remedial action for decades.”

A criminal record might be one of the greatest impediments to finding employment in the U.S. Employers may overlook applicants with criminal history altogether, even if their particular record would have little to no bearing on the job they are seeking. At the same time, steady employment is a common condition of parole, probation, and other forms of community supervision in the criminal justice system. A lack of employment opportunities is believed by many to be a significant factor in recidivism. To put that another way, the ability to find a job helps people stay out of trouble once they have paid their debt to society. To help people overcome many employers’ reluctance even to consider job applicants with conviction or arrest records, “Ban the Box” (BTB) laws restrict employers’ ability to ask about those matters during the application process and limit their ability to use that information in their decision-making process. In December 2018, Westchester County, New York enacted Local Law LL-2018-14, the “Fair Chance to Work Law.” The new law is similar to BTB laws in New York City and at the state level.

BTB laws get their name from the checkbox on many employment applications asking whether an individual has ever been arrested or convicted of a criminal offense. These laws prohibit employers from asking about criminal history during the early stages of the hiring process—in other words, they ban the checkbox. Employers are also prohibited from advertising a position as being unavailable to people with criminal history. This is somewhat similar to prohibitions on job listings, property listings, and other public notices that discriminate on the basis of race or other factors. Employers may inquire about criminal history later in the process but must be able to justify any adverse decision made on the basis of information obtained from those inquiries.

In New York City, the Fair Chance Act amended the New York City Human Rights Law to add BTB provisions. In addition to restrictions on inquiries about criminal history, employers may not discriminate on the basis of criminal history unless they follow provisions outlined in state law. See N.Y.C. Admin. Code §§ 8-107(10) – (11-a). Those provisions are found in Article 23-A of the New York State Corrections Law.
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New York City has taken many actions to combat discrimination and harassment in the workplace. These actions are not limited to legislation, such as the New York City Human Rights Law (NYCHRL), or investigations by the city’s Commissioner on Human Rights (CHR). In 2018, the CHR named Brooklyn-based street artist Tatyana Fazlalizadeh as its first Public Artist in Residence (PAIR). The program partners city agencies with artists “to address pressing civic issues through creative practice.” Fazlalizadeh unveiled a mural, entitled Respecting Black Women and Girls in St. Albans, in Daniel M. O’Connell Playground in Queens on April 12, 2019. The mural addresses experiences of “the daily indignities of anti-Black racism and sexism.”

New York City has officially declared, through the NYCHRL, that “bias-related violence or harassment…threaten the rights and proper privileges of [the city’s] inhabitants.” N.Y.C. Admin. Code § 8-101. The NYCHRL further states “that gender-based harassment threatens the terms, conditions and privileges of employment.” Id. In most situations, the NYCHRL only applies to employers with four or more employers, but any employer, regardless of size, could be liable for gender-based harassment. See id. at § 8-102.

The NYCHRL prohibits employment discrimination on the basis of race, gender, and multiple other factors. Id. at § 8-107(1)(a). “Discrimination” in this context can include workplace harassment. The statute also prohibits any “person,” which may include both individuals and businesses, from engaging in “discriminatory harassment” based on any protected category. This is broadly defined as knowingly using or threatening force to intimidate a person or interfere with their exercise of any legal right or privilege. Id. at § 8-603.
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Employees in New York City who have experienced sexual harassment have several options for asserting claims and seeking damages. A New York City sexual harassment attorney with knowledge of the city’s legal system can help you determine the best route for your case. In 2015, the New York City Commission on Human Rights (CHR) ordered an employer to pay the maximum possible civil penalty allowed by the New York City Human Rights Law (NYCHRL)—$250,000—for the first time since the law’s enactment. A state court affirmed the order in Automatic Meter Reading Corp. v New York City (“AMRC”), 2019 NY Slip Op 50464(U) (N.Y. Sup. Ct., N.Y. Cty., Feb. 28, 2019).

Sexual harassment is considered a form of unlawful sex discrimination in two situations, known as quid pro quo sexual harassment and hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a violation of federal antidiscrimination law in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that the allegedly harassing conduct must be “severe or pervasive” enough to impact the claimant’s ability to perform their job. Id. at 67. State law in New York has adopted a similar standard.

New York City courts do not view the NYCHRL’s “standard for sexual harassment violations [as] a carbon copy of the federal and state standard.”, see also N.Y.C. Admin. Code § 8-130(a). A complainant asserting a claim under the NYCHRL does not have to prove harassment that meets the federal “severe or pervasive” standard. Instead, they need only prove that they were “treated less well than other employees” because of their gender, and that the allegedly harassing conduct was “more than non-actionable petty slights and minor inconveniences.”
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The New York City Human Rights Law (NYCHRL) is one of country’s the most comprehensive laws dealing with discrimination in employment, housing, public accommodations, and other areas. On May 20, 2019, a new law will go into effect that adds “sexual and reproductive health decisions” to the law’s list of protected categories. Some employers have fought against legal requirements involving matters like contraception in recent years. Similar arguments have appeared in support of employers who terminate, demote, or otherwise penalize employees for some of the most private acts in which people engage, or some of the most personal decisions that people can make.

The NYCHRL already prohibits employers from discriminating on the basis of factors like gender, marital or partnership status, and sexual orientation. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines “gender” to include “actual or perceived” characteristics, including gender identity and gender expression. Id. at § 8-102. This provides express protection against discrimination based on transgender status, which is missing in federal law.

Existing law may apply to some adverse employment actions arguably based on “sexual and reproductive health decisions.” The Second Circuit Court of Appeals reinstated a lawsuit alleging sex discrimination under federal, state, and New York City law. The plaintiff became pregnant before getting married and returned from her honeymoon “visibly pregnant.” She alleged that her employer fired her because it “disapprove[d] of [her] pre-marital pregnancy.”
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Workplace harassment violates employment antidiscrimination law when it is based on a protected category, such as sex, race, or religion. This does not encompass the full range of hostile or abusive treatment that workers may encounter. A New York City employment discrimination lawyer must be able to identify a protected category under laws like Title VII of the Civil Rights Act of 1964 in order to bring a claim based on workplace bullying. State legislators in New York have introduced a bill intended to assist victims of workplace bullying, known as the Healthy Workplace Bill (HWB). The bill has not passed in any state as of April 2019, although a few states have passed laws that address workplace bullying to some extent.

What Is Bullying?

No single legal definition of “bullying” exists in the context of the workplace. The Workplace Bullying Institute, which researches the phenomenon and advocates for measures like the HWB, defines it as “abusive conduct” that “[t]hreaten[s], humiliat[es], or intimidate[s]” a person or prevents them from getting their work done through “interference” or “sabotage.” This is similar to the legal definition of a hostile work environment by agencies like the Equal Employment Opportunity Commission (EEOC).

Antidiscrimination Law and Bullying

Whether laws like Title VII and the New York City Human Rights Law (NYCHRL) apply to workplace bullying depends on the basis for the alleged abusive actions. In a landmark decision recognizing same-sex sexual harassment as a violation of Title VII, Supreme Court Justice Scalia noted that “Title VII does not prohibit all verbal or physical harassment in the workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). He further stated that Title VII is not “a general civility code for the American workplace.” Id.
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The United States is one of the only countries in the world with no provisions for paid family leave at the national level. The Family and Medical Leave Act (FMLA) provides for unpaid leave nationwide, but it only applies to qualifying employees of covered employers. New York is one of only a handful of states or territories in the U.S. to have enacted laws requiring paid family leave. When New York’s Paid Family Leave Act (PFLA) took effect in 2018, this state joined California, New Jersey, and Rhode Island. The District of Columbia and the State of Washington have also enacted paid family leave laws, which are scheduled to take effect in 2020. New York City employment attorneys may be accustomed to handling claims of discrimination and retaliation under the FMLA. The PFLA also contains provisions protecting employees who exercise their rights to paid leave.

“Family leave” generally refers to time away from work to care for a newborn or newly-adopted child, to care for a family member with a serious illness or injury, and to provide certain other forms of care for family members. Under laws mandating family leave, employers must hold a person’s job for the approved leave period, and they typically must continue to provide benefits like health insurance. Employers are prohibited from discriminating or retaliating against an employee who uses earned leave time.

Since the FMLA does not require employers to pay their employees while they are on leave, the statute does not have to address issues of funding. A common objection to mandatory paid family leave is that it is unfair to employers to require them to pay employees for time when they are not working. The PFLA makes paid family leave part of the state’s disability insurance program, which is governed by the New York Workers’ Compensation Law. Paid family leave in New York is therefore only available to employees who are eligible for benefits from the state insurance fund. See N.Y. Work. Comp. L. § 76(2).
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Employees in New York City are protected from unlawful discrimination in the workplace by laws at the local, state, and federal level. The city’s anti discrimination statute is one of the most comprehensive and expansive in the nation, but New York City discrimination attorneys must carefully evaluate each case of alleged discrimination to determine which law best applies. In order to understand what laws protect employees against discrimination in New York City, it is important to understand how these laws apply their protections.

Protected Categories in Anti Discrimination Law

In one sense, employers discriminate all the time, meaning that they make decisions that affect some employees differently than others. Discrimination on the basis of factors like job performance, seniority, or experience is not considered unlawful. When an employer discriminates on the basis of a factor like race, sex, or religion, that is a different story.

Anti discrimination laws identify categories that are protected against employment discrimination. Court decisions may interpret these laws to provide further detail about prohibited workplace practices. The U.S. Supreme Court, for example, ruled more than thirty years ago that the prohibition on sex discrimination found in federal law applies to sexual harassment in the workplace. Some federal courts have held that sex discrimination also includes discrimination on the basis of sexual orientation or gender identity. Other courts have reached opposite conclusions.
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The laws of New York state have protected workers from discrimination in employment on the basis of gender identity and gender expression since 2016, thanks to regulations issued by the state’s Division of Human Rights (DHR). New York City’s antidiscrimination law expressly identifies discrimination on the basis of gender identity or gender expression as a form of sex discrimination. It is one of the few laws in the nation to address the issue in unambiguous terms. The New York Legislature passed S1047/A747, known as the Gender Expression Non-Discrimination Act (GENDA), on January 15. The governor signed it into law on January 25. The bill amends the New York State Human Rights Law (NYSHRL) to include gender identity and expression as a distinct protected category in employment, education, housing, and use of public accommodations.

The New York City Human Rights Law (NYCHRL) prohibits discrimination in employment and other areas on the basis of gender and defines “gender” to include “actual or perceived…gender-related characteristic[s], regardless of the sex assigned to that person at birth.” N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). This includes gender identity and expression. At the state level, the DHR exercised its authority under the NYSHRL to “promulgate…suitable rules and regulations to carry out the [statute’s] provisions” in late 2015. N.Y. Exec. L. § 295(5). It issued regulations, which took effect in January 2016, adding “gender identity and the status of being transgender” to the NYSHRL’s definition of “sex.” 9 N.Y.C.R.R. § 466.13(c), N.Y. Exec. L. § 296(1)(a). The statute’s prohibition on discrimination and harassment on the basis of sex therefore also applies to gender identity.

GENDA amends multiple sections of the NYSHRL to add “gender identity or expression” as a protected category on equal footing with sex, race, age, religion, disability, and others. It defines the term as any “identity, appearance, behavior, expression, or other gender-related characteristic,” whether “actual or perceived,” and “regardless of the sex assigned to that person at birth.” S1047/A747 at § 3. This includes transgender status, but also other gender identities or forms of gender expression. GENDA also adds gender identity or expression to the Penal Law section defining hate crimes.
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