Domestic workers make up a significant portion of the workforce in the U.S., but few employment statutes provide protection for them against sexual harassment and other unlawful acts. New York City employment discrimination attorneys can draw on state law, which include provisions specifically covering domestic workers, but there are no nationwide protections. Last summer, members of Congress introduced the National Domestic Workers’ Bill of Rights (NDWBOR). This comprehensive bill would amend the employment discrimination, harassment, and retaliation provisions of Title VII of the Civil Rights Act of 1964. It has yet to receive a hearing in either chamber of Congress.
What Is a Domestic Worker?
New York defines a “domestic worker” as an individual “employed in a home or residence” for certain purposes, including:
– Child care; and
– Companionship for “a sick, convalescing or elderly person.”
N.Y. Lab. L. § 2(16).
The definition does not apply to a person who is related to the employer, or who provides services “on a casual basis.” Id. State law also omits people who provide babysitting or elder care services “on a casual basis,” as described in the Fair Labor Standards Act (FLSA). 29 U.S.C. § 213(a)(15).
Protections for Domestic Workers in New York
Many of the provisions of the New York State Human Rights Law (NYSHRL) did not apply to domestic workers until recently, with one notable exception. Until February 8, 2020, the NYSHRL limited most of its coverage to employers with four or more employees. N.Y. Exec. L. § 292(5). On February 8, the definition of “employer” changed to all employers in the state, regardless of number of employees.
Even before this change took effect, the NYSHRL included specific protections for domestic workers. The law prohibited sexual harassment and other forms of harassment against domestic workers. Id. at §§ 296(1)(h), 296-b.
The typical situation for domestic workers is that they are the lone employee in the household. Perhaps some households have four or more domestic workers, which would have made them subject to the earlier version of the NYSHRL. Under federal antidiscrimination law, only domestic workers in the largest, most opulent households would have any hope of protection. Title VII limits its coverage to employers with at least fifteen employees. 42 U.S.C. § 2000e(b).
The National Domestic Workers’ Bill of Rights
The NDWBOR uses a definition of “domestic worker” that is very similar to the one found in New York law. It includes people who provide “services of a household nature,” but does not include family members and the type of “casual” caregivers identified in the FLSA. S. 2112 §§ 3(b)(4), (5) (116th Congress). This definition applies to as many as 2.5 million people in the U.S., according to the bill.
The bill dedicates a single section to workplace discrimination and harassment. That section amends Title VII to change the definition of “employer” from a person with at least fifteen employees to one with at least one employee. Id. at § 131. This would extend Title VII’s protection against workplace discrimination and harassment, including sexual harassment, to the nation’s 2.5 million domestic workers. It would also extend that protection to nearly anybody with a job.
The employment discrimination attorneys at Phillips & Associates advocate for the rights of New York City employees, former employees, and job seekers in claims for unlawful workplace practices under state, federal, and municipal law. Please contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our skilled and experienced team.