Articles Posted in Caregiver Discrimination

Pregnancy and caregiver discrimination can take many forms, such as firing someone upon learning of their pregnancy, denying a pregnant employee a reasonable accommodation to allow them to keep working, or denying opportunities to employees with childcare responsibilities. As New York City discrimination lawyers, we have seen near-countless examples of adverse employment actions based on pregnancy, childbirth, and caregiver duties. The New York City Human Rights Law (NYCHRL) goes further than federal law and most city and state laws in protecting workers. The city’s Commission on Human Rights (CHR) held a public hearing in January 2019 to see how it can do even better.

At the federal level, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a). It defines that term to include “pregnancy, childbirth, or related medical conditions.” Id. at § 2000e(k). The NYCHRL prohibits employment discrimination on the basis of multiple factors, including gender. N.Y.C. Admin. Code § 8-107(1)(a). It does not expressly include pregnancy or childbirth in its definition of “gender,” but it does include “gender-related characteristic[s],” which could be construed to include pregnancy and childbirth. Id. at § 8-102.

The NYCHRL goes further than Title VII in its number of protected categories, as well as the types of protection offered to pregnant workers and those who have recently given birth. Employers are required to provide reasonable accommodations to an employee based on “pregnancy, childbirth, or a related medical condition” to “allow [them] to perform the essential requisites of the job.” Id. at § 8-107(22)(a). To be considered “reasonable,” the accommodation must not “cause undue hardship” to the employer’s business. Id. at § 8-102. Amendments to the NYCHRL enacted in 2018 expand employer’s responsibilities to include accommodating breastfeeding workers’ need to express milk during work shifts.
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Workers are protected from a wide range of employment practices under the laws of New York City. Employment discrimination attorneys can assert claims on their clients’ behalf under city law for unlawful actions by employers based on gender, caregiver status, and other factors. Federal and state law prohibit discrimination on the basis of pregnancy and recent childbirth. New York City’s prohibition on caregiver discrimination offers further employment protections for young parents. These provisions do not specifically mention gender, but caregiver discrimination is often intertwined with gender discrimination simply because of gendered assumptions about caregiving. A lawsuit filed last year, Avery v. Le Bernardin, Inc. et al, No. 1:18-cv-000626, complaint (S.D.N.Y., Jan. 24, 2018), illustrates this close relationship, as well as the proximity between sexual harassment and other forms of gender discrimination. The plaintiff dismissed her suit without prejudice several months after filing it, but the complaint still offers a useful example of the kinds of allegations often found in the restaurant industry.

Sexual harassment is considered a form of unlawful sex discrimination under most employment antidiscrimination statutes. The New York City Human Rights Law (NYCHRL) is one of the few statutes in the U.S. to address caregiver discrimination. It defines a “caregiver” as an individual “who provides direct and ongoing care for a minor child or a care recipient.” N.Y.C. Admin. Code § 8-102. The term “care recipient” applies to a person who is a family member or resides with the caregiver, who suffers from a disability, and who depends on the caregiver for daily support. This person could be an adult or a child. The definition of “caregiver” also includes responsibility for a “minor child,” simply defined as someone under the age of eighteen. This effectively includes all parents.

The plaintiff in Avery worked for about three years as a server at “one of the finest restaurants in the United States.” Avery, complaint at 1. She alleged that women who worked at the restaurant regularly faced sexual harassment, and that management either ignored complaints or “shamed” the people who complained. Id. at 2. She further alleged that one of the restaurant’s owners, whom she named individually as a defendant, engaged in “body shaming of Plaintiff shortly after giving birth for her weight gain,” among other claims. Id. The restaurant, she claims, refused to assign her to lunch shifts to accommodate her childcare schedule, resulting in her constructive discharge.
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Workers in New York City are protected from discriminatory actions by their employers based on a wide range of factors. New York City discrimination attorneys can bring claims on behalf of clients in state or federal court, or with an administrative agency like the city’s Commission on Human Rights (NYCHR). A complaint filed with the NYCHR last year alleges that a museum in Queens rescinded a job offer when it learned that the complainant had recently given birth. The complainant in Columbus v. MoMA PS1, et al asserts claims under city law for gender, pregnancy, and caregiver discrimination.

The New York City Human Rights Law (NYCHRL) prohibits discrimination on the basis of gender and caregiver status, among other categories. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102. The term “care recipient” has an extensive definition, but the relevant provision for the Columbus case involves caregiving responsibilities for a “minor child,” defined as a child under the age of eighteen.

Pregnancy is not expressly included in the NYCHRL’s list of protected categories. Neither is it included in the definition of sex discrimination, like in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e(k). The NYCHRL does, however, require employers to provide “reasonable accommodations” to employees who are pregnant or have recently given birth, which will “allow the employee to perform the essential requisites of the job.” N.Y.C. Admin. Code § 8-107(22)(a).
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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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New York City’s employment antidiscrimination statute provides protection for workers who are responsible, outside of work, for providing care to certain individuals. The New York City Human Rights Law (NYCHRL) prohibits discrimination by employers on the basis of caregiver status, as well as retaliation for reporting an alleged violation or opposing an allegedly unlawful practice. These provisions protect caregivers from losing their jobs in many situations, but they do not necessarily facilitate caregivers having time off from work to meet their responsibilities. A new law, enacted by the New York City Council in January 2018, allows caregivers to make “temporary changes” to their work schedules in certain situations. The law takes effect in mid-July 2018.

The NYCHRL is one the few laws in the country to provide express protections based on caregiver status. It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” N.Y.C. Admin. Code § 8-102(30)(a). A “care recipient” is (1) a close relative—e.g. a child, spouse parent, grandparent, etc.—or an individual who lives with the caregiver, who (2) needs the caregiver’s assistance “for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). “Caregiver status” is a protected category under the NYCHRL, along with categories like age, race, gender, or sexual orientation. Id. at § 8-107(1)(a). Employers may not terminate or refuse to hire a person solely because of caregiver duties, nor may they discriminate with regard to wages, job responsibilities, or other features of employment.

The new law, Int. 1399-2016, defines “caregiver” much the same as the NYCHRL. The law applies to people who are responsible for providing care to a minor child, or to an adult who either resides with the caregiver or is a family member, and who relies on the care that they provide to meet their medical needs or the needs of daily life. See N.Y.C. Admin. Code § 20-1261.
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New York City boasts one of the broadest employment discrimination laws in the nation. Indeed, over the past few years, New York City has offered protection to many classes of employees and job applicants who have not enjoyed protection in the past. One of the lesser known groups of people who are protected under New York anti-discrimination law are caregivers.Over the past few decades, lawmakers have heard from countless employees and job applicants who have suffered various forms of adverse employment actions based on the fact that they care for a child or sick loved one at home. Historically, employers have been able to discriminate against caregivers by refusing to hire those who have these responsibilities and even fire employees once the need to provide care arises. However, with the passage of a 2015 rule, employees and applicants can no longer be subjected to New York caregiver discrimination.

What Constitutes a Caregiver?

The New York Commission on Human Rights defines a caregiver as anyone who has a biological or adopted child under the age of 18, or someone who provides ongoing care to a parent, sibling, spouse, child, grandparent, or grandchild with a disability. The law applies to all employment agencies as well as employers that have four or more employees. The law also applies to full-time, part-time, and intern positions. Even someone who is characterized as an “independent contractor” may be covered.

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In 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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Workers in New York City who are pregnant or who have recently given birth are protected by multiple statutes against pregnancy discrimination. While protections against losing one’s job or suffering a pay cut due to pregnancy, to name only two possible examples, are critically important, they do not address another major issue. The United States is one of the very few countries in the entire world that make no provision whatsoever for paid family leave, including parental leave after childbirth. Only four states currently have paid family leave systems. New York will become the fifth such state in 2018, when a bill signed into law in April 2016 takes effect.

The federal Family and Medical Leave Act (FMLA) guarantees a certain amount of unpaid family leave for qualifying workers of covered employers. In addition to the fact that the leave is unpaid, many employers do not fall under the FMLA’s jurisdiction, and workers have to meet certain benchmarks for the total number of hours worked in order to qualify. As a result, the FMLA’s helpfulness is limited. Most of the world’s nations provide some form of paid family leave. Canada and the United Kingdom, for example, provide six months to one year of paid family leave. Germany, Sweden, Japan, and most countries in Eastern Europe provide a year or more. According to the World Policy Center, the United States joins Papua New Guinea and Suriname in offering no paid leave at all.

Aside from New York, four states have enacted paid family leave laws:  California, New Jersey, Rhode Island, and Washington. Three of those states have implemented paid leave programs as of mid-2016. Washington has not been able to get its program started yet, reportedly due to a lack of provisions for funding in the bill. New Jersey’s program uses a temporary disability insurance program funded by employer and employee contributions. It is available for a variety of situations, including parental leave within 12 months of the child’s birth, for a period of up to six weeks. N.J. Rev. Stat. §§ 43:21-27(o), 43:21-38.

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The United States is one of the few countries in the world that make no legal provision for paid parental leave. Many companies voluntarily offer paid maternity leave, and some also offer paid paternity leave. The issue of providing paid leave for new mothers has received some attention—without much action—in the U.S. in recent years. Allowing new fathers to take time off from work to care for a newborn has not received as much attention. The federal Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., requires covered employers to allow unpaid medical leave in certain circumstances, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits sex discrimination in employment. These laws and recent amendments to the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., give new fathers some ability to fulfill their role as a parent without risking their job, but without any guarantee of pay for the time they take off.

A United Nations survey of 185 countries in 2014 identified only two countries with no legal mandate for paid maternity leave:  the United States and Papua New Guinea. Far fewer countries require paid paternity leave. The same UN report found that, out of 167 countries with available data, only 79 require paid or unpaid paternity leave. These range from one unpaid day of leave in Tunisia to 90 paid days in Iceland and Slovenia. Meanwhile, the public discourse in the U.S. surrounding this issue seems to be stuck on questions like whether or not paid parental leave actually constitutes paid vacation time.

The FMLA provides some protection for workers shortly after a child is born. It prohibits employers from denying or interfering with employees’ use of authorized unpaid leave, and it allows employees to sue for damages like lost wages and costs incurred because of a violation. 29 U.S.C. §§ 2615(a), 2617(a)(1). The NYCHRL prohibits discrimination against employees on the basis of certain care responsibilities. N.Y.C. Admin. Code §§ 8-102(30)(a), 8-107(1)(a).

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Employment statutes at the federal, state, and city levels in New York City protect workers against certain types of discrimination related to family responsibilities. These laws protect employees from adverse actions by employers, but they do not address the conflict between needing to care for a family member and needing to go to work to earn a living. The U.S. lags far behind most of the world’s countries when it comes to paid family leave. The New York State Assembly passed a bill in February 2016 that would provide paid family leave through the state’s disability insurance program, but its companion bill is still pending in the Senate.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits employers from discriminating on the basis of pregnancy, childbirth, and certain medical conditions related to either. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) contain similar provisions. N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(22). Recent amendments to the NYCHRL will also protect workers with caregiving responsibilities, such as for a minor child or a sick or disabled relative, from employment discrimination.

None of the above-referenced laws, however, provide for paid leave for employees due to pregnancy, childbirth, or caregiver responsibilities. The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., requires unpaid leave for qualified employees of covered employers, but that is as far as U.S. federal law goes.

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