Articles Posted in Gender Discrimination

Central ParkSexual harassment in the workplace violates city, state, and federal employment laws in New York City. Under all of these laws, sexual harassment is viewed as a type of sex discrimination. An underlying assumption in many, but certainly not all, cases is that the perpetrator is attracted to the complainant. Employment laws in New York City protect a worker in this sort of scenario, but what about when an adverse employment action is based on a lack of attraction, or other purported concerns about an employee’s appearance? To put that in blunter terms, can an employer fire an employee for being “ugly”?

No employment statute in New York expressly mentions appearance, but other categories might apply in some situations. The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of sex, gender identity or gender expression, age, disability, and other factors. The New York State Human Rights Law (NYSHRL) provides many of the same protections. Title VII of the federal Civil Rights Act of 1964 lists fewer protected categories, but the U.S. Supreme Court has established fairly broad protections under the umbrella of sex discrimination. The Americans with Disabilities Act (ADA) of 1990 and the Age Discrimination in Employment Act (ADEA) of 1967 also address employment discrimination.

Addressing this issue from a legal standpoint is difficult, since it is largely subjective. Beauty, as they say, is in the eye of the beholder, and some employers have successfully argued that appearance standards are a bona fide occupational qualification exempting them from discrimination laws. This has occurred in cases of men applying at restaurants that only hire female servers and women fired for gaining too much weight. All of these cases arguably involve standards of attractiveness or lack thereof. Several courts have also held that firing a female employee for being too attractive—which borders on an argument that termination was necessary to avoid sexual harassment—is not unlawful sex discrimination. Still, termination for being “ugly” might violate existing laws in certain situations.

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Staten Island FerrySexual harassment in the workplace can have a devastating impact, causing financial, emotional, and even physical harm. While that impact is usually—and justifiably—the focus, it is worth noting that sexual harassment is also bad for business, not only because it can result in civil liability but also because of the damage it does to a company’s productivity. Sexual harassment can even pose a danger to the public, as a lawsuit currently pending in a Brooklyn federal court alleges. The plaintiff claims that an environment of sexual harassment led to her supervisors ignoring her communications while she was working in her capacity as an assistant captain on the Staten Island Ferry. KA v. City of New York, No. 1:17-cv-00378, complaint (E.D.N.Y., Jan. 23, 2017). A lack of contact between a ferry and ferry employees on land, the plaintiff alleges, puts ferry passengers at risk.

Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of sex, as well as retaliation against an employee who speaks out against such unlawful conduct. The legal definition of sex discrimination includes various forms of sexual harassment, such as demands for sexual activity of some sort as a condition of employment. It also includes unwanted remarks or overtures of a sexual nature, as well as sexualized conduct that creates a hostile work environment. The New York State Human Rights Law (NYSHRL) includes similar provisions that apply statewide, and the New York City Human Rights Law (NYCHRL) provides these protections at the city level.

According to her complaint, the plaintiff has worked for the Staten Island Ferry for about 10 years, from 2007 to 2008 and from April 2009 to the present. She states that she became licensed to captain a ferry in 2010, and she has held the position of assistant captain since about 2011. She has sought promotion to captain but alleges that her requests have been met with either “vague, evasive, and ultimately empty comments” or “definitive, discriminatory remarks…such as…’you can’t stand up to the men.’” KA, complaint at 5-6.

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clapper boardNew York City has some of the strongest employee rights protections in the country. Federal law prohibits workplace discrimination on the basis of five factors:  race, sex, religion, color, and national origin. The New York City Human Rights Law (NYCHRL) goes substantially further than this. A recent decision from a New York City court addresses the application of the NYCHRL to claims of sexual orientation discrimination, and it indicates that the statute protects against a wide range of unlawful acts by employers, managers, supervisors, and co-workers. Zimmer v. Warner Brothers Pictures, Inc., 103732/2012, NYLJ 1202777712512, at *1 (N.Y. Sup. Ct., N.Y. Cty., Dec. 23, 2016).

Title VII of the Civil Rights Act of 1964, the main federal statute addressing employment discrimination, does not expressly mention sexual orientation as a protected category. The Equal Employment Opportunity Commission (EEOC), the agency authorized to enforce Title VII, has taken the position that discrimination on the basis of sexual orientation falls under Title VII’s concept of sex discrimination. Baldwin v. Dept. of Transp., App. No. 0120133080, decision (EEOC, Jul 15, 2015). This determination is not binding on any court of law, however. Some federal district courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, but at least one appellate court has rejected such a claim. Hively v. Ivy Tech Community College, South Bend, 830 F.3d 698 (7th Cir. 2016).

While the EEOC must read between the lines of Title VII to find any sort of protection against sexual orientation discrimination, the NYCHRL is entirely unambiguous on the matter. Its prohibitions of employment discrimination include “actual or perceived…sexual orientation” as a protected category. N.Y.C. Admin. Code § 8-107(1)(a). It defines “sexual orientation” to include “heterosexuality, homosexuality, or bisexuality.” Id. at § 8-102(20).

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New York CityA former employee of a New York City medical marijuana company is suing the company for multiple causes of action under state and city laws. JP v. TO, et al., No. 158407/2016, complaint (N.Y. Sup. Ct., N.Y. Cty., Oct. 6, 2016). The plaintiff alleges that she was subjected to sexual harassment, that she faced discrimination based on her religion and her health status, and that the company terminated her in retaliation for complaining about these acts. In addition to the business entity, the defendants include several individual owners, directors, and officers of the company.

Laws at the city and state levels in New York City prohibit employment discrimination on a wide range of bases, including sex, religion, and disability. Under both the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), sexual harassment is considered to be unlawful sex discrimination. Both statutes define “disability” in this context to include “a physical, mental or medical impairment,” and the NYCHRL also adds psychological impairments to the list. N.Y. Exec. L. § 292(21), N.Y.C. Admin. Code. § 8-102(16). They both generally define an “impairment” as arising from a physiological or neurological condition, as well as a psychological or mental condition in the case of the NYCHRL.

The plaintiff worked for the defendant as an “in-house consultant and project manager.” JP, complaint at 3. She describes herself as a Roman Catholic and a “female survivor of cancerous PASH,” a type of breast cancer. Her condition “cause[s] her a large degree of pain and discomfort” and “requir[es] her to take prescribed painkillers and muscle relaxers periodically.” Id. at 4. Her job responsibilities, according to her complaint, included licensing and compliance with state medical cannabis laws, project management, and various business planning and development activities. She alleges a variety of actions that violated state and federal laws.

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Lyndon JohnsonAnti-discrimination statutes, which cover New York City at the federal, state, and local levels, treat sexual harassment as a type of prohibited sex discrimination. As of 2017, this is a relatively well-established legal principle, but it took time to get to this point. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on several factors, including sex. This did not expressly include sexual harassment until the U.S. Supreme Court ruled on this type of dispute 22 years later. The inclusion of sex as a protected class under Title VII was also never a foregone conclusion. Numerous legal scholars have noted that the addition of sex to Title VII began as a “joke” in the House of Representatives, intended as an effort to prevent the bill’s passage. Fortunately for future generations of Americans, that effort failed.

Title VII’s protections against sex discrimination, found in 42 U.S.C. § 2000e-2, are unique within the Civil Rights Act itself. In addition to sex, this provision prohibits discrimination on the basis of race, color, religion, and national origin. The other well-known provisions of the statute do not include sex. Title II, for example, prohibits discrimination in “public accommodations” on the basis of “race, color, religion, or national origin.” Id. at § 2000a(a). Title III addresses discrimination in access to public facilities on the basis of these four categories. Id. at § 2000b(a). Title VI deals with discrimination in federally assisted programs on the basis of race, color, or national origin—but not sex or religion. Id. at § 2000d. How, then, did sex discrimination become part of Title VII?

Congress passed the Civil Rights Act on July 2, 1964, as Public Law 88-352, 78 Stat. 241. Only two states, Hawaii and Wisconsin, had passed laws against sex discrimination before this. Representative Howard W. Smith, a Democrat from Virginia and an outspoken opponent of civil rights legislation, reportedly added sex to Title VII as a “joke.” He apparently intended his addition to the bill to dissuade other representatives from voting for it. His scheme “backfired” on him “when the amendment was adopted on the floor of the House under the House five-minute rule.” Rabidue v. Osceola Refining Co., 584 F.Supp. 419, 428 n. 36 (E.D. Mich. 1984).

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Our jobs are, in many ways, the centerpieces of our lives. We often depend on employment not only to support ourselves and our families but also to provide features like health insurance and retirement savings. For many people, their job shares a close relationship with their identity—one of the first questions people often hear upon meeting someone is “What do you do?” As important as having a job is in our society, though, the employer/employee relationship has a built-in imbalance of power. An employee may be unwilling to challenge discrimination or harassment for fear of losing their job. New York City offers multiple legal protections for employees, and a skilled employment attorney can use these laws to level the playing field, so the employee can assert their rights.

Employers ought to value their employees for the quality of their work and the skills they bring to the table. This accurately describes most employers, but discrimination on the basis of factors like race, sex, religion, sexual orientation, gender identity, criminal history, and others continues to hinder people’s employment prospects for no valid reason. Employees in New York City enjoy the protection of numerous statutes addressing discrimination, harassment, and retaliation.

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YosemiteNumerous professions in the U.S. remain “male-dominated,” despite decades-long efforts to achieve some semblance of equality in the workplace. The National Park Service (NPS) has been dealing with widespread allegations of sexual harassment at parks all over the country for much of 2016, and it is far from alone in this regard. In 2014, female employees of the U.S. Forest Service (USFS) alleged ongoing patterns of sexual harassment by their supervisors. Title VII of the Civil Rights Act of 1964 gives employees the ability to fight back against this type of workplace behavior, but workplaces that still maintain a certain type of “male-dominated” culture present serious challenges.

Gender discrimination in the workplace manifests in many ways, from a refusal to hire a job applicant because of their gender and disparate treatment of employees based on gender to sexual harassment and other acts creating a hostile work environment. Sexual harassment violates Title VII when it is based on gender and when it either involves a demand for sexual activity in some form as a condition of employment (quid pro quo sexual harassment) or renders the workplace unbearable for the recipient of the behavior (hostile work environment).

Title VII and other anti-discrimination statutes require complainants to follow an administrative procedure before filing a civil lawsuit. In the case of a federal agency like the NPS, this often begins with an internal report. An order from the director of the NPS issued in December 2011 states that a complainant may make an internal report to the NPS dispute resolution office, or they may file a complaint with the Equal Employment Opportunity Commission (EEOC). A complaint to the EEOC, the federal agency responsible for enforcing Title VII, is typically the last step before filing suit.

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child and fatherThe 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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Wall StreetWomen have made tremendous progress in the past four or five decades in the workplace, overcoming obstacles that had been in place for centuries, if not longer. Many hurdles remain, though, and some workplaces present far greater challenges than others. Wall Street is still, in many ways, a “boys’ club,” where women might not be expressly excluded but are also not always welcomed by the office culture. Twenty years ago, a group of women at a Wall Street financial company filed a lawsuit alleging sex discrimination, sexual harassment, and retaliation. Martens v. Smith Barney, Inc., No. 96-cv-03779, complaint (S.D.N.Y., May 20, 1996). The number of claimants grew to almost two thousand, and the defendant eventually paid out $150 million. The lawsuit brought some reforms to Wall Street’s culture, but sex discrimination in many forms remains a problem.

Sex discrimination in the workplace is prohibited under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 296; and the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-107. The U.S. Supreme Court established sexual harassment as a form of unlawful sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Subsequent cases have established the right to bring sexual harassment claims as a collective or class action. See, e.g. Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1304 (8th Cir. 1997) (“It should be obvious that the callous pattern and practice of sexual harassment…inevitably destroyed the self-esteem of the working women exposed to it.”)

The initial group of women who filed suit in Martens alleged multiple forms of sex discrimination that “transcend[ed] all aspects of employment.” Martens, complaint at 5. This included an applicant pool for brokers that favored men and “deliberately steer[ed] female applicants into the position of sales assistant,” which featured “duties…stereotypically assigned to women.” Id. at 6.

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Iranian womanSexual harassment is a problem in workplaces all over the world, and while we should celebrate the progress made in this country in the past few decades, it is important also to note progress in other parts of the world. In early 2016, a female anchor at Press TV, Iran’s state-run, English-language news channel, released audio recordings of the channel’s news editor sexually harassing her. The ensuing scandal quickly resulted in the suspension of two executives, but it unfortunately also led to the anchor fleeing the country. A high-level media executive later resigned, and the Iranian president reportedly announced an effort to crack down on sex discrimination in the government. The Iranian legal system, according to numerous sources, heavily favors men over women in many aspects of society. While the long-term impact of the anchor’s case remains to be seen, it has at least produced a few hopeful signs.

Title VII of the Civil Rights Act of 1964 prohibits various forms of discrimination in the workplace, including discrimination on the basis of sex. At just over 50 years old, Title VII is still relatively new to America’s legal system. Sexual harassment did not acquire formal legal recognition as a form of unlawful sex discrimination for another 22 years, when the Supreme Court issued its decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). State laws and laws in some cities, such as the New York State Human Rights Law and the New York City Human Rights Law, also protect workers against sexual harassment and sex discrimination. Despite all these legal protections, and a growing public dialogue about how to prevent sexual harassment from occurring, it remains an ongoing problem across the country.

As a general rule, U.S. statutes only apply on U.S. territory. According to the Equal Employment Opportunity Commission, however, Title VII applies to U.S. citizens in a foreign country who work for a U.S.-based employer. A U.S. employer in a foreign country is not bound by Title VII, however, if compliance would violate a law in that country. See 42 U.S.C. § 2000e-1(b). Many countries have statutes that provide comparable or greater protections against sexual harassment, but the laws of some countries essentially establish sex discrimination, rather than fight against it. Sometimes, laws that appear to offer strong protections against sex discrimination actually offer few or none, due to a lack of enforcement.

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