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New York City employment discrimination laws protect transgender and gender-nonconforming workers by prohibiting discrimination on the basis of how they identify or express their own gender. State law in New York has similar provisions. A lawsuit filed in New York County Supreme Court in June 2019 alleges that a restaurant discriminated against a gender-nonconforming employee by requiring them to follow a dress code designed for people who identify as male. The New York City Commission on Human Rights (CHR), in interpreting city law regarding gender identity and gender expression discrimination, specifically identifies gender-specific dress codes as a violation.

The New York City Human Rights Law (NYCHRL) bars discrimination by employers based on gender and other factors. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines “gender” as an individual’s “actual or perceived sex, gender identity and gender expression,” without regard to “the sex assigned to that person at birth.” Id. at § 8-102. The New York State Human Rights Law (NYSHRL) identifies gender identity and gender expression as a distinct protected class, defining it as one’s “actual or perceived…appearance, behavior, expression, or other gender-related characteristic,” also without regard to one’s assigned gender at birth. N.Y. Exec. L. §§ 292(35), 296(1)(a).

The City Council intended the NYCHRL to provide comprehensive protection, specifically noting its “uniquely broad and remedial purposes” and setting it apart from federal and state antidiscrimination statutes. N.Y.C. Admin. Code § 8-130(a). The CHR has stated that gender-specific dress codes or grooming standards violate the NYCHRL, and that individuals should not bear the burden of “demonstrat[ing] why a particular distinction…does not conform to their gender expression.” Employers may enforce dress codes or grooming standards as long as they are applied on a gender-neutral basis.

Employees who are pregnant, or who have recently given birth, have gained significant legal protections in recent years in New York City. New York pregnancy discrimination attorneys nevertheless encounter ongoing violations of city, state, and federal law. This includes not only direct adverse actions like demoting or terminating an employee because they become pregnant, but also failure or refusal to provide reasonable accommodations to pregnant or nursing employees. A recent report by the New York City Commission on Human Rights (CHR) found gaps in the law’s coverage that allow pregnancy discrimination to occur in certain situations. Recent amendments to the New York City Human Rights Law (NYCHRL) extend the statute’s reach to all employers in claims for sexual harassment, but for all other claims, it only applies to employers with four or more employees. N.Y.C. Admin. Code § 8-102. The CHR noted in its report that this leaves many domestic workers, meaning people employed in private homes, without legal protection.

Federal, state, and local statutes affecting New York City take different approaches to pregnancy discrimination. The definition of sex discrimination in Title VII of the Civil Rights Act of 1964 includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of “familial status,” and defines that term to include pregnancy. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a).

The NYCHRL does not specifically mention pregnancy or childbirth as a protected category for antidiscrimination purposes. It addresses those issues through its prohibitions on caregiver discrimination, which applies to parents of minor children, and on discrimination based on sexual and reproductive health decisions. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). The statute also requires employers to provide reasonable accommodations for needs associated with pregnancy and childbirth. Id. at § 8-107(22). Amendments enacted in 2018 require covered employers to provide lactation rooms for employees.

The New York State Legislature passed a bill on June 19, 2019, A8421/S6577, that makes multiple changes to how the New York State Human Rights Law (NYSHRL) handles claims involving sexual harassment and other alleged unlawful employment practices. Section 2 of the bill adds a new provision to the NYSHRL that would effectively eliminate an affirmative defense available to employers, first under federal law and then under New York law, that is quite familiar to New York City sexual harassment attorneys. Employers can avoid liability for hostile work environment when they can establish that the plaintiff did not utilize opportunities provided by the employer to prevent or rectify alleged harassment. It is known as the Faragher/Ellerth defense, after two U.S. Supreme Court decisions issued on the same day: Faragher v. Boca Raton, 524 U.S. 775 (1998); and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

A hostile work environment generally occurs, in violation of antidiscrimination law, when pervasive and unwelcome conduct of a sexual nature substantially interferes with an employee’s ability to perform their job duties. The Faragher/Ellerth defense allows an employer to raise an affirmative defense to liability that consists of two main elements: (1) the employer acted reasonably to prevent and/or remedy sexual harassment in the workplace; and (2) the employee unreasonably failed to make use of opportunities to prevent or address harassment. A third element, sometimes included in the defense, involves a lack of materially adverse action against the employee because of their complaint. If an employer can prove these two or three elements by a preponderance of evidence, they can avoid liability.

Both Faragher and Ellerth involved sexual harassment claims under Title VII of the Civil Rights Act of 1964. Courts have also applied the defense to claims under the NYSHRL. In 2009, a federal court in the Southern District of New York declined to apply the Faragher/Ellerth defense to a case brought under the New York City Human Rights Law (NYCHRL). It certified a question to the New York Court of Appeals, asking whether the Faragher/Ellerth defense was available in NYCHRL cases. New York’s highest court ruled in 2010 that the defense is not available, noting different wording in the NYCHRL compared to other statutes.
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Silvia Stanciu is an employment litigation attorney at Phillips & Associates. Recently, Super Lawyers, an attorney rating service that names top practitioners in each state in numerous practice areas, named Ms. Stanciu a Rising Star in New York. Additionally, Super Lawyers asked Ms. Stanciu to address whether a person working in New York can sue his or her employer for sexual harassment by a coworker.

What is Considered Sexual Harassment?

Ms. Stanciu advised that any unwelcome behavior or comments of a sexual nature in the workplace may constitute sexual harassment. Typically, sexual harassment is quid pro quo or creates a hostile work environment. Quid pro quo harassment is transactional. In other words, the harasser pressures his or her victim into engaging in sexual conduct in exchange for a raise or promotion. Thus, the victim’s employment status is affected by his or her willingness to submit to sexual activity with a coworker.

Conversely, Ms. Stanciu explained, sexual harassment creates a hostile work environment when unwelcome sexual conduct or comments inhibits a person’s ability to do his or her job.  There are numerous laws that allow people to pursue claims against an employer due to a hostile work environment. Under the federal statute, the victim must show that the harassing behavior is pervasive or severe in order to prove it created a hostile work environment. Common examples of conduct that constitutes sexual harassment include sexual texts, emails, and comments, viewing or sharing pornography, and remarks regarding a person’s appearance or body.

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In honor of Pride Month, Lawyer Monthly magazine recently spoke with the managing partner of Phillips & Associates, William Phillips, and Steven Fingerhut, an associate with Phillips & Associates, to discuss the protections afforded members of the LGBT+ community at work. Phillips & Associates is a New York City employment discrimination law firm that solely represents plaintiffs in employment law claims.

Laws Prohibiting Discrimination Against LGBT+ People

The protection afforded members of the LGBT+ community from discrimination in the workplace depends in large part on where they work. While Title VII of the Civil Rights Act of 1964 (Title VII), a federal law, prohibits sex-based discrimination, it does not provide any explicit protection for discrimination based on sexual orientation or gender identity.  Members of the LGBT+ community have nonetheless been successful in pursuing Title VII claims against employers due to discrimination based on their gender identity and sexual orientation, by asserting it is discrimination based on sex.

Conversely, the New York City Human Rights Law (NYCHRL) expressly protects employees from discrimination based on their sexual orientation or gender identity. As such, LGBT+ employees who work in New York City and who were discriminated against based gender identity and sexual orientation may be able to pursue claims under the NYCHRL.

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Erica Shnayder is an employment discrimination litigation attorney at Phillips & Associates. Ms. Shnayder focuses her practice on assisting individuals in protecting their rights in the workplace. Due to her tireless advocacy, Super Lawyers, a service that names top practitioners in each state in multiple practice areas, recently named Ms. Shnayder a Rising Star in the field of employment litigation. Super Lawyers routinely asks knowledgeable attorneys to address pressing issues in their fields. Super Lawyers recently asked Ms. Shnayder responded to answer whether a New York employee can sue his or her employer for sexual harassment.

How Victims of Sexual Harassment Can Protect Their Rights

Ms. Shnayder stated that while people who work in New York have the right to pursue sexual harassment claims against their employers, there are steps they must take to preserve their rights. First, it is essential for anyone alleging he or she was the victim of sexual harassment to prove that the offensive conduct was unwelcome. In many cases, however, the harasser will attempt to argue that he or she was unaware that his or her sexual remarks or conduct was unwanted. Thus, if you are the victim of sexual harassment in the workplace, confronting your harasser and advising him or her in clear terms that his or her conduct is uninvited and inappropriate can help to establish liability going forward. Ms. Shnayder advised, however, that you should not confront your harasser if you cannot do so safely.

Filing a Claim with the EEOC

Ms. Shnayder stated that if you are unable to confront your harasser or if the sexual harassment continues after you confront your harasser you should notify your supervisor or other upper-level management, or your company’s human resources department of the harassment. Additionally, if your company has defined procedures as to how sexual harassment claims should be reported and handled, you should follow the procedure. If reporting the sexual harassment within your company fails to halt the harassment, you can then file a claim with the Equal Employment Opportunity Commission (EEOC), which is a federal agency that enforces civil rights laws, which includes anti-harassment laws, in places of work throughout the country.

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Siobhan Klassen is an employment attorney at the New York City office of Phillips & Associates. Super Lawyers, a rating services that names top attorneys in numerous practice areas in every state, deemed Ms. Klassen a Rising Star in New York in 2017 and 2018. Super Lawyers regularly asks Rising Stars to address issues of public interest and recently asked Ms. Klassen to address whether a person can pursue a wrongful termination claim against his or her employer in New York.

Grounds for a Wrongful Termination Claim in New York

Although in many cases a terminated employee will have no grounds to file a wrongful termination claim against his or her employer, if the employee can prove particular factors lead to his or her termination, he or she may have a valid wrongful termination claim. In sum, wrongful termination happens whenever an employer fires an employee illegally. Examples of illegal grounds for terminating an employee include retaliation and discrimination.

Ms. Klassen clarified that most individuals are at-will employees, which means they can be terminated at any time, whether or not there is a reason for their termination, providing the purported reason for the termination is not illegal. If a person is terminated for exercising his or her legal rights at work or for a discriminatory reason, it may be considered wrongful termination, however.

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Brittany Stevens is an employment litigation attorney at Phillips & Associates who handles a variety of cases, including sexual harassment claims.  Ms. Stevens was recently identified as a Rising Star by Super Lawyers, a service that names the top attorneys in various practice areas in each state. Additionally, Ms. Stevens recently advised Super Lawyers as to what steps a person facing sexual harassment from his or her boss should take.

Sexual Harassment Defined

Sexual harassment is any conduct or behavior of a sexual nature that is unwelcome and that creates a hostile work environment or negatively affects a person’s employment. Sexual harassment can affect employees of every status, regardless of their age, race, gender, or sexual orientation.  Additionally, sexual harassment is considered discrimination. Thus, it is prohibited under local, state, and federal anti-discrimination laws.

Ms. Stevens stated that there are numerous types of conduct that may be considered sexual harassment, including your supervisor or boss touching you without your permission, sending you texts, images, or emails of a sexual nature, or requesting sexual favors.  Moreover, unwelcome remarks regarding your appearance or body, inquiries into your sexual history, and viewing pornographic materials at work may also constitute sexual harassment. Additionally, if you are denied a promotion or raise because you refused your boss’s sexual advances, it may also constitute sexual harassment.

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Gregory Kirschenbaum is an associate at Phillips & Associates practicing in the field of employment discrimination. Mr. Kirschenbaum has been named a Rising Star by Super Lawyers, a rating service that identifies top attorneys in each practice area, on numerous occasions. Mr. Kirschenbaum recently answered the question of whether an individual can seek damages from New York City for wrongful termination for Super Lawyers.

Nature of Employment

Most people who work for New York City, Mr. Kirschenbaum clarified, are “at-will” employees. An employee is “at-will” if either the employee or the employer can terminate the relationship at any time, regardless of whether there is a valid reason for ending the relationship. Employees who work for the City of New York pursuant to a contract, however, cannot be terminated unless it is permissible under the provisions of the contract. Typically, the City must prove that you failed to comply with the terms of the contract in some way, or that the contractual period ended so the contract no longer applies.

Claims for Discrimination and Retaliation

Mr. Kirschenbaum noted that although employers can terminate at-will employees for almost any reason, they are prohibited from firing employees due to a discriminatory bias. Rather, numerous laws, including the New York City Human Rights Law, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964, prohibit employers from terminating employees based on their membership in a protected class. The specific classes protected depend on the terms of the precise law in question, but each law prohibits termination based on a person’s age, race, religion, disability, or sex. Employees are also protected from retaliation from their employer for reporting illegal or unethical activity or filing a discrimination or harassment claim. Additionally, New York City employees who report illegal activity in the workplace may be afforded protection under the New York City Service Law. Continue reading

An important limitation on employees’ rights under various antidiscrimination statutes is how each statute defines “employer.” Most laws set a minimum threshold of number of employees. Employers with fewer employees than that number are not considered “employers” within the meaning of that statute. In practice, this means that employees of small employers are not eligible for those laws’ protection against workplace discrimination, sexual harassment, and other unlawful practices. A new law passed by the New York Legislature, which the Governor is expected to sign, will expand the coverage of the New York State Human Rights Law (NYSHRL) to almost all employers in the state. The Legislature previously amended the NYSHRL to eliminate the minimum employee count for claims involving alleged sexual harassment. The new bill, A8421/S6577, as amended by S6594, makes the full range of the NYSHRL’s provisions applicable to employers of all sizes.

Title VII of the Civil Rights Act of 1964 defines an “employer” as a person who employs at least fifteen people for at least twenty weeks in the current, or the most recent, calendar year. 42 U.S.C. § 2000e(b). The federal government, its agencies, and any corporation wholly-owned by the federal government are not considered “employers” under Title VII. Indian tribes and the government of the District of Columbia are also exempt from Title VII’s definition.

The New York City Human Rights Law (NYCHRL) defines an “employer” as any person with four or more employees. N.Y.C. Admin. Code § 8-102. Much like the NYSHRL prior to the new amendments, the statute makes an exception in cases involving alleged sexual harassment. The NYCHRL also provides that individuals who are employed as independent contractors count towards the employer’s employee count, as long as they do not employ anyone themselves.
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