franchiseEmployment anti-discrimination statutes, such as the New York City Human Rights Law or Title VII of the Civil Rights Act of 1964, allow workers to assert claims against their employers for certain unlawful actions. Determining an employee-employer relationship, however, is not always easy. In situations in which more than one business might play a role in a worker’s employment, courts have developed the concept of a “joint employer.” A recent series of sexual harassment complaints against a major restaurant chain could require a joint employer analysis.

Discrimination in employment on the basis of sex is prohibited under city, state, and federal laws. The definition of “sex discrimination” has expanded over the years, through both court decisions and legislation, to include practices like sexual harassment and pregnancy discrimination. In a typical sexual harassment claim, a plaintiff must demonstrate that an employer is either directly liable due to actions against the plaintiff by a manager or supervisor, or liable for failing to address harassment by a co-worker of the plaintiff, about which it knew or should have known. Before that analysis even begins, however, a plaintiff must establish that an employment relationship exists.

A worker may receive a paycheck from one company but work at a different company’s site because of a contract between the two companies. When one company handles payroll, but another company directs the employee’s daily work, which one is the “employer?” Another common example of this problem involves franchised businesses. An individual might appear to be employed by a company that operates a national chain of stores or restaurants, but their employer is actually a local company operating under a franchise agreement with a larger company. The local business, or franchisee, would be the employer on paper, but the larger company, or franchisor, might still exercise considerable control over the conditions of employment.

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CaregiverIn 2016, New York City amended its anti-discrimination statute to prohibit discrimination in employment based on caregiver duties. Several state and federal employment laws address discrimination on the basis of certain caregiving responsibilities, but New York City’s law covers a much wider range of people. Few, if any, cases interpreting this law have made their way through the courts in the last year. A look at a few New York court decisions that pre-date the new law, however, can provide an idea of where legal protection for caregivers was needed.

The New York City Human Rights Law (NYCHRL) protects employees from discrimination on the basis of “caregiver status.” N.Y.C. Admin. Code § 8-107(1)(a). It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102(30)(a). A “care recipient” is either a “covered relative” or someone living with the caregiver, who has a disability and “relies on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). Finally, a “covered relative” could be a child, spouse or partner, sibling, parent, grandparent, grandchild, or mother- or father-in-law. Id. at § 8-102(30)(c).

A “caregiver,” under the NYCHRL, may therefore include not only parents but also people caring for a sick or disabled parent or other relative, regardless of sex or gender. This is an important feature of the statute, since caregiver discrimination has often had a close relation to discrimination on the basis of sex. A New York City federal court ruled on a class action alleging caregiver discrimination under anti-discrimination and equal pay statutes in Kassman v. KPMG, LLP, 925 F.Supp.2d 453 (S.D.N.Y. 2013). The plaintiffs alleged multiple discriminatory practices, including “treating pregnant employees and mothers differently from non-pregnant employees, male employees, and non-caregivers.” Id. at 460. Unfortunately, the court dismissed several of the claims, finding that “caregiver…discrimination [is] not actionable under” state and federal equal pay laws. Id. at 473.

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restaurantSexual harassment in the workplace is a widespread problem throughout the country. Certain types of workplaces seem more prone to sexual harassment than others, but it can be a problem anywhere. A 2016 report by the Equal Employment Opportunity Commission (EEOC) addressed risk factors for workplace harassment and found that restaurants presented a particularly high risk. A lawsuit filed earlier this year contains allegations that demonstrate many of these risk factors. Baker v. Olive Garden, et al., No. 2:17-cv-00392, complaint (E.D.N.Y., Jan. 25, 2017). It also demonstrates another increasingly common feature of employment disputes—the use of alternative dispute resolution (ADR) procedures. The plaintiff voluntarily dismissed the case several weeks after filing it in order to pursue arbitration of the matter.

Most anti-discrimination laws view sexual harassment as a form of unlawful discrimination on the basis of sex. Quid pro quo sexual harassment involves requests or demands for sexual activity or contact in some form as a condition of employment—including getting a job, keeping a job, and various features of employment. The conduct does not need to be this blatant, however. A violation of law also occurs when sexual remarks or overtures—ranging from inappropriate comments or jokes to direct sexual overtures to outright assault—create a hostile work environment.

The EEOC report mentioned earlier identifies risk factors for workplace harassment. These include reliance on customer service, disparities in power among employees, a prevalence of younger employees, and the presence of alcohol. In a restaurant, servers and other employees depend on customers for tips. They may not be able to object to harassment by a customer, or by a supervisor with the power to assign work shifts. Supervisors have considerable power over servers’ schedules and assignments, and many restaurant employees are on the younger side. Many restaurants serve alcohol and might even encourage drinking on the job by some employees. Left unchecked, individual acts of harassment can create a hostile work environment.

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fingerprintNew York City is leading much of the nation in providing protection for workers against discrimination on the basis of criminal history, but federal law offers some protection as well. These protections are important for helping people reintegrate into society—particularly by finding jobs—once they have paid their debt to society. The federal Fair Credit Reporting Act (FCRA) protects job applicants’ privacy with regard to background checks by employers. While the FCRA does not limit employers’ ability to consider information obtained in a background check, it requires them to notify an applicant of an adverse decision based on a consumer report and to allow the applicant an opportunity to correct any inaccurate or incomplete information. The Federal Trade Commission (FTC) recently offered guidance to employers about their obligations under the FCRA, which prospective employees might also find useful.

The New York City Human Rights Law (NYCHRL) requires employers to follow specific procedures during the hiring process with regard to an applicant’s prior convictions. An employer may not inquire about criminal history until it has made a conditional offer of employment, and then it must follow various disclosure requirements if it makes an adverse decision because of an applicant’s criminal history. See N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq.

Under the FCRA, a “consumer report” is a collection of information about an individual that relates not only to factors like their credit history but also to their “character, general reputation, [or], personal characteristics.” 15 U.S.C. § 1681a(d). This can include criminal convictions, charges that did not lead to convictions, and arrests that did not lead to charges. The FCRA requires consumer reporting agencies, which compile and distribute consumer reports, to correct inaccurate information. It also imposes restrictions and obligations on people and businesses that request consumer reports, including employers.

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riverThe Second Circuit Court of Appeals recently reinstated a lawsuit alleging a hostile work environment based on race, religion, and national origin under Title VII of the Civil Rights Act of 1964. A federal district judge had granted the defendants’ motion for summary judgment last year, finding that the plaintiff had shown “no reasonable basis” for her claims. Ahmed v. Astoria Bank, et al. (“Ahmed I”), No. 1:14-cv-04595, mem. order at 1 (E.D.N.Y., Mar. 31, 2016). On appeal, the defendants cited the “sham issue of fact” doctrine, which prohibits a party from using contradictory evidence to defeat a summary judgment motion. The Second Circuit vacated the district court’s decision and remanded the case, finding that the evidence was not actually contradictory. Ahmed v. Astoria Bank, et al. (“Ahmed II”), No. 16-1389-cv, slip op. (2d Cir., May 9, 2017).

Title VII prohibits discrimination on the basis of multiple factors, including race, national origin, and religion. 42 U.S.C. § 2000e-2(a). The plaintiff in an employment discrimination lawsuit has the burden of proving the allegedly unlawful conduct. A defendant can challenge the plaintiff’s claims before trial and even get some or all of them dismissed with a motion for summary judgment. The defendant must show that “no genuine dispute as to any material fact” exists and that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A plaintiff can defeat summary judgment by showing that a “genuine dispute” does exist.

The plaintiff filed suit against her former employer in 2014, alleging that she had been “subjected to discrimination and unlawful termination” in violation of Title VII and other federal and state laws “because she was a Muslim of Egyptian and Arabic heritage.” Ahmed I at 2. The district court granted the defendants’ motion for summary judgment. On the hostile work environment claim, the court held that she had “identified only a few incidents, primarily stray comments from two specific individuals,” in support of her claims. Id. at 23.

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Sunset Blvd.Employment laws across the country prohibit discrimination on the basis of sex. The legal definition of sex discrimination has grown over the years to encompass a wide range of conduct and disparate treatment that affects workers because of their sex. This includes both sexual harassment and pregnancy discrimination. The entertainment industry comprises a major part of New York City’s culture and economy, but it also remains the setting for a significant amount of sex discrimination. This is true on both sides of the country. A lawsuit filed late last year against a major media company in California, Taylor v. OWN, alleges both sexual harassment and pregnancy discrimination. The case is additionally notable because both the plaintiff and the alleged perpetrator are women. This type of alleged harassment tends to receive less media attention.

All 50 states, the District of Columbia and other U.S. territories, and the federal government have laws prohibiting sex discrimination in the workplace. The New York State Human Rights Law (NYSHRL) expressly mentions sex and “familial status” as protected categories. N.Y. Exec. L. § 296(1)(a). The statute prohibits employers from requiring pregnant employees to take leave against their will in most circumstances, and it goes further than many anti-discrimination statutes by requiring employers to provide “reasonable accommodations” for “known…pregnancy-related conditions.” Id. at §§ 296(1)(g), (3)(a).

California’s Fair Employment and Housing Act (FEHA) covers the same legal ground as the NYSHRL. Its list of protected categories includes sex, and it defines “harassment because of sex” to include both sexual harassment and pregnancy discrimination in many situations. Cal. Gov’t Code §§ 12940(a), (j)(4)(C). It requires employers to offer up to four months of leave to “female employee[s] disabled by pregnancy, childbirth, or a related medical condition.” Id. at § 12945(a)(1).

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MTA New York City Bus Nova Bus LFSA (2010)The New York City Human Rights Law (NYCHRL) applies to most public and private employers in the city. In some circumstances, another statute might preclude a sexual harassment claim against a public employer, such as a government agency. A currently-pending sexual harassment lawsuit involves claims against a public transportation authority, which was established by state law, and its subsidiaries. Jenkins, et al v. N.Y.C. Tr. Auth., et al, No. 153761/2013, complaint (N.Y. Sup. Ct., N.Y. Cty., Apr. 25, 2013). The defendants moved to dismiss the complaint on the ground that state law precluded lawsuits under the NYCHRL. The court found that, while another public transportation authority in New York is exempted from suit, this exemption does not apply to all similar authorities.

The principle of sovereign immunity holds that government agencies are immune from suit when not expressly allowed by statute or agreement. The NYCHRL expressly permits lawsuits against public employers in the city. N.Y.C. Admin. Code § 8-401. The statute defines “employer” as any individual, business, or organization with “four [or more] persons in his or her employ,” id. at § 8-102(5), and it does not make a distinction between public and private employees. Sex discrimination, including sexual harassment, constitutes an “unlawful discriminatory practice” under the NYCHRL, id. at § 8-107(1)(a).

The Metropolitan Transportation Authority (MTA) is a public benefit corporation created by state law to administer a district that includes the five counties comprising New York City, the other two counties of Long Island, and Dutchess, Orange, Putnam, Rockland, and Westchester Counties. N.Y. Pub. Auth. L. §§ 1262, 1263. Its subsidiary, the New York City Transit Authority (NYCTA), oversees public transportation for the city. The NYCTA is further subdivided to manage subway, bus, and rail systems.
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Financial DistrictEmployment discrimination based on sex is unlawful in New York City under employment statutes at the city, state, and federal levels. It is considered to include sexual harassment and pregnancy discrimination in most circumstances. A lawsuit filed late last year in a Manhattan state court alleges a pattern of discrimination that includes both of these. Castellanos v. Berkman Capital, et al., No. 159768/2016, complaint (Nov. 18, 2016). The plaintiff describes ongoing acts of sexual harassment, which allegedly culminated in termination when she asked for additional maternity leave.

Courts in the U.S. have recognized two broad categories of sexual harassment. Quid pro quo sexual harassment involves direct requests or demands for sexual activity of some sort as a condition of getting a job, keeping a job, or receiving other benefits of employment. Since this is far from the only kind of sexual harassment people can experience, courts have also recognized claims of sexual harassment when it creates a hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964 in the mid-1980s. It held that the harassment must be so “severe or pervasive” that it “alter[s] the conditions of [the victim’s] employment and create[s] an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).

Pregnancy discrimination involves disparate treatment based on multiple factors surrounding pregnancy. The Pregnancy Discrimination Act of 1978 amended the definition of “sex discrimination” to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). This can include refusing to hire someone or terminating them because they are pregnant, or unreasonably reducing someone’s job duties or hours because of pregnancy or recent childbirth. The extent to which these laws require employers to make reasonable accommodations for pregnant or nursing employees, however, remains a matter of dispute in courts and legislatures.

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bullyingSexual harassment violates employment non-discrimination laws throughout the country. While New York City has one of the most expansive non-discrimination statutes in the country, offering numerous protections not available in other places, the laws regarding sexual harassment have become fairly uniform nationwide. Interesting developments in sexual harassment law can occur almost anywhere in the U.S. A recent sexual harassment trial in a Texas state court resulted in a jury verdict of over $1 million. Aside from the large award of damages, the case is notable for several other reasons. More than one-third of the verdict was assessed directly against the plaintiff’s supervisor in an individual capacity. Additionally, much of the coverage of the case described it as a fight over “workplace bullying.” While bullying has received a great deal of attention in the context of schools, bullying in the workplace has no specific legal remedy apart from existing anti-discrimination law.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sex and other factors. Court decisions have established that sexual harassment is a form of sex discrimination under certain circumstances, such as when a supervisor or manager makes unwanted sexual advances toward an employee, or attempts to condition some benefit of employment on participation in sexual activity. It can also include remarks and actions of a sexual nature, as well as any pattern of sex-based harassment that creates a hostile work environment.

Workplace bullying does not have a precise legal definition, but it is broader in scope than sexual harassment in common usage. At least three states—California, Tennessee, and Utah—have laws that directly address workplace bullying in some form, although none of them allow private causes of action. California’s law, for example, requires employers with 50 or more employees to provide supervisory employees with training regarding issues like sexual harassment. Cal. Gov. Code § 12950.1.

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CUNYSexual harassment remains a pervasive problem in workplaces in New York City and throughout the country. Employment statutes prohibit sexual harassment as a form of sex discrimination, but this only applies when a complainant’s relationship to their alleged harasser is based on employment. Other laws apply in non-employment situations in which a power imbalance makes it difficult to push back against sexual harassment. Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., addresses discrimination on the basis of sex, including sexual harassment, in educational institutions. Late last year, the U.S. Department of Education (DOE) announced that it had reached a resolution in a sexual harassment policy dispute with an institution belonging to the City University of New York (CUNY) system. In re CUNY, Hunter Coll., No. 02-13-2052, resolution agmt. (DOE, Oct. 31, 2016).

Title IX prohibits sex discrimination by “educational institutions,” which it defines to include both public and private schools, from preschools through colleges and universities. 20 U.S.C. § 1681(c). The statute only applies to educational institutions that receive federal assistance, although this covers a substantial number of schools around the country. Much like Title VII of the Civil Rights Act of 1964, Title IX does not expressly mention sexual harassment as a type of sex discrimination. The Supreme Court has held that the statute authorizes lawsuits for sexual harassment and the recovery of monetary damages. See, e.g., Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

Employers who are subject to Title VII are required to investigate claims of sexual harassment and to make reasonable efforts to remedy situations in which it has occurred. Failing to do so exposes them to liability to the aggrieved employee. Title IX is more specific, setting guidelines for educational institutions to establish “grievance procedures” and to designate a “responsible employee” to address complaints. 34 C.F.R. § 106.8. They must also follow specific procedures to notify current students, applicants for admission, parents of minor students, employees, and others of these policies and procedures. Id. at § 106.9.

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