Articles Posted in Caregiver Discrimination

New York City employment discrimination lawyers can draw from a wide range of statutes to assist workers who have experienced adverse actions by their employers in violation of the law. The city’s antidiscrimination law is one of the only ones in the country to protect employees with caregiving responsibilities for family members or others. The COVID-19 pandemic, unfortunately, has shown some gaps in the law’s coverage. A new state law provides paid leave for workers to receive the COVID-19 vaccine. This new law does not specifically cover caregivers who may need to take time off from work to accompany a person under their care while they get the vaccine. It is possible, however, that city law might protect an employee with this sort of responsibility.

The New York City Human Rights Law (NYCHRL) prohibits discrimination based on “caregiver status.” N.Y.C. Admin. Code § 8-107(1)(a). A caregiver has responsibility for a minor child or a “care recipient.” The latter term refers to an individual who:
1. Resides in the caregiver’s household or is a “covered relative” of the caregiver; and
2. Depends on the caregiver “for medical care or to meet the needs of daily living.” Id. at § 8-102.

The term “covered relative” includes close relatives like minor or adult children, spouses and domestic partners, parents, grandparents, and siblings. The statute allows the New York City Commission on Human Rights (CHR) to add other “familial relationships” to the definition of “covered relative.” So far, the CHR has not done so. It currently has no rules specifically interpreting the NYCHRL’s provisions on caregiver discrimination.

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New York City’s employment discrimination laws cover a wider range of protected categories than most similar laws around the country. The New York City Human Rights Law (NYCHRL) cover some gaps left in federal law, which protects against discrimination on the basis of a relatively small list of factors. A decision by a Manhattan federal judge in late 2020, for example, dismissed pregnancy discrimination claims under federal, state, and city law by a father who lost his job after taking paternity leave. It essentially held that he could not bring a claim for pregnancy discrimination because he was never pregnant. The court’s decision does not mention the NYCHRL’s provisions regarding caregiver discrimination, which could cover a father of a newborn.

The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act to include pregnancy discrimination in the definition of sex discrimination. See 42 U.S.C. § 2000e(k). In addition to pregnancy itself, Title VII prohibits discrimination due to childbirth and medical conditions related to either pregnancy or childbirth. The NYCHRL goes a step farther and requires employers to make reasonable accommodations for pregnant and nursing employees.

Federal law acknowledges the role of fathers, or any parent who did not gestate and give birth to a child, in the Family and Medical Leave Act (FMLA). This law requires covered employers to provide unpaid leave to qualifying employees for certain reasons, including caring for a newborn child. The U.S. Supreme Court noted that the statute addresses “mutually reinforcing stereotypes [that] created a self-fulfilling cycle of discrimination” on the basis of sex. Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003). Employers must provide leave regardless of gender, ensuring “that employers could not evade leave obligations simply by hiring men.” Id. at 737. The FMLA does not, however, address discrimination outside of the context of unpaid family leave.

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The COVID-19 pandemic is now in its second wave in New York and much of the rest of the country, which has not come close to recovering from the economic impact of the first wave. Earlier this year, New York State established a system of paid sick leave for people who must quarantine because of a COVID-19 diagnosis or possible exposure to the disease. Employers must allow employees to take time off, whether paid or unpaid, under state law in order to go into quarantine. They must allow employees to return to their jobs when their quarantine ends. Despite these precautions and protections, many workers are still experiencing difficulties with their employers. New York City employment attorneys can help people understand their rights in these unusual times, and the state has set up a system for employment complaints related to COVID-19.

New York City and State Employment Laws

The New York City Human Rights Law (NYCHRL) protects workers with caregiving responsibilities from discrimination by their employers. This applies to people who must care for a minor child, or for a family member or someone living in their home who “relies on [them] for medical care or to meet the needs of daily living.” N.Y.C. Admin. Code § 8-102(2). This means that an employer cannot terminate an employee because of their caregiving obligation, nor may they demote them or deny them employment opportunities like promotions because of these responsibilities.

New York City law does not, however, specifically require employers to accommodate an employee’s caregiver duties, such as by allowing them to take additional time off from work. The NYCHRL and the New York State Human Rights Law (NYSHRL) specifically require reasonable accommodations for disability, pregnancy, childbirth, and conditions related to pregnancy or childbirth, but not caregiver status. Id. at §§ 8-107(15), (22); N.Y. Exec. L. § 296(3). “Disability,” as defined by these statutes, may include certain health conditions that put people at additional risk of complications from COVID-19.

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The global coronavirus pandemic has hit New York City particularly hard. Many people have concerns not only about their own health, but the health of family members who require care. New York City employment discrimination laws protected workers with caregiver responsibilities before the coronavirus arrived. Quarantine and isolation have added a new dimension to the concept of a “caregiver.” Laws passed by the federal and state governments to address problems caused by the pandemic may offer additional protections against discrimination and retaliation based on an employee’s caregiving responsibilities.

What Is Caregiver Discrimination?

The New York City Human Rights Law (NYCHRL) prohibits discrimination by employers on the basis of “caregiver status.” It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” The term “care recipient” can refer to anyone living in the caregiver’s home; or a “covered relative” like a parent, spouse, sibling, child, grandchild, or grandparent, whether or not they live with the caregiver. In either case, the care recipient must need the caregiver’s assistance with “medical care or to meet the needs of daily living.” Id.

The NYCHRL does not define the term “direct and ongoing care,” and it does not appear that any court has ruled on its specific meaning. A plain-language interpretation suggests that it means care that requires a substantial amount of the caregiver’s time and attention. This could therefore include:
– The caregiver’s minor child, who resides with the caregiver;
– The caregiver’s minor child who resides elsewhere, but needs regular care from the caregiver;
– A person who lives with the caregiver, regardless of whether they are related; or
– A relative who does not reside with the caregiver.

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New York City sex discrimination attorneys probably have more tools available to help their clients than lawyers in other American cities. The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on an extensive list of factors. State law in New York comes close to providing the extent of protection offered by city law. Both city and state law are far ahead of federal law. A 2016 amendment to the NYCHRL added “caregiver status” to the list of protected categories. See N.Y.C. Admin. Code § 8-107(1)(a). This applies to workers who, in addition to their job duties, must provide ongoing care for certain individuals. Federal law does not expressly protect caregiver status, but a 2004 decision by the Second Circuit Court of Appeals in New York shows how the prohibition on sex discrimination could cover certain forms of caregiver status.

Caregiver Discrimination in New York City

The NYCHRL defines “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102. The statute goes on to define “care recipient” using additional terms that require definitions. We will focus here on the law’s applicability to people with caregiving responsibilities for minor children. The fact that New York City’s caregiver discrimination broadly applies to parents sometimes gets overlooked.

Sex Stereotyping under Title VII

Title VII of the Civil Rights Act of 1964 bars employers from discriminating on the basis of sex, but aside from “pregnancy, childbirth, or related medical conditions,” it does not define the term “sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The U.S. Supreme Court has offered further definitions of sex discrimination under Title VII, including various forms of sexual harassment.

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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.

In many parts of the U.S., the availability of paid family leave to care for a newborn is entirely dependent on one’s employer. Ensuring that employers with family leave policies apply them fairly is often a matter of enforcing laws against discrimination on the basis of factors like pregnancy or gender. New York City discrimination attorneys do not have to go that far much of the time thanks to the state’s paid family leave law, which took effect in 2018. Even if an employee is not eligible for leave under the new state law, New York City’s prohibition on caregiver discrimination may offer protection against adverse employment actions. Both state and city law make no distinction based on gender—mothers and fathers alike can claim family leave and caregiver status. A recent settlement in a lawsuit against a New York City-based financial firm suggest that the country may soon be ready to follow in the city’s footsteps.

The New York City Human Rights Law (NYCHRL) defines a “caregiver” as someone who is responsible for supporting a minor child or certain other individuals. This obviously includes parents of children under the age of eighteen. The law prohibits employers from discriminating against employees and job applicants on the basis of caregiver status. It does not necessarily require that employers provide accommodations for employees with caregiver responsibilities, but it still provides workers with important protections.

The paid family leave law applies to both full-time and part-time workers once they have worked for a minimum period of time. They must start over with regard to minimum days or weeks worked when they start working for a new employer. Starting in 2019, the law allows eligible employees to take up to ten weeks of leave to bond with a new baby. An individual must take advantage of this program within twelve months of the child’s birth. It expressly applies to any new parent, regardless of gender. Both of a child’s parents may take paid family leave if they meet the eligibility criteria. Benefits are payable through employers’ disability insurance.
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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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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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