Articles Posted in Caregiver Discrimination

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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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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