Articles Posted in Gender Discrimination

New York City has one of the most robust anti-discrimination laws in the country. Indeed, in New York City, employers cannot discriminate based on a number of factors, including an applicant’s gender, sexual orientation, or partnership status. Despite the vigorous protections, employers continue to discriminate, especially against transgender individuals. In fact, the U.S. government openly discriminated against transgender individuals until very recently.

SoldiersBack in June of last year, President Trump announced his intention to ban transgender individuals from serving in the nation’s armed services. Since the announcement of that upcoming regulation, courts across the country have seen numerous lawsuits filed in an attempt to preclude the Trump administration from putting the regulations into effect.

Several of those lawsuits resulted in federal judges ordering that the policy not go into effect, based on the fact that it likely violates the Equal Protection Clause of the United States Constitution. According to a recent news report, the Trump administration has decided not to appeal the rulings, and it has begun to allow transgender individuals to enlist as of January 1, 2018.

New York Gender Expression Discrimination

As noted above, under the New York City Human Rights Commission, it is against the law to discriminate against an individual based on their expressed gender.

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Women who have been in the workforce for any amount of time are likely familiar with the gender pay gap. Essentially, the problem is that women are paid less than equally qualified men who perform the same job duties. Under New York and federal laws, this is illegal, but companies may try to get around the discrimination laws.

Looking at PhoneOne of the ways employers try to get around the New York sex discrimination laws is to base employee pay decisions on what the potential employee had previously been making at their last position. This used to be a permissible way of determining what an employee should be paid, or the size of a raise or bonus, until October of this year, when New York lawmakers prohibited the practice. This is because it is no secret that the wages of women have been artificially and improperly depressed for decades, and basing future decisions on the sexist policies of the past perpetuates sex discrimination.

Despite the efforts of lawmakers, the gender wage gap still exists, and by some accounts it is not necessarily getting better. That being said, New York has one of the lowest gender wage gaps in the country, at 11%.

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Library of CongressThe terms “gender identity” and “gender expression,” in the context of New York City gender identity discrimination law, encompass a spectrum of factors related to gender and self-image. New York City has included these factors in its employment discrimination law since 2002. A federal court did not find in favor of a gender identity discrimination claim until 2008. The landmark decision in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), is worth revisiting.

“Gender identity” refers to a person’s sense of their own gender, whether or not it matches their biological sex. “Gender expression” consists of how a person presents their gender, such as through their name, clothing, and behavior. A transgender person is someone who identifies as a different gender than the biological sex assigned to them at birth, and who might express themselves in accordance with that gender identity. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a)(1). A U.S. Supreme Court ruling recognizing “sex stereotyping” as a form of sex discrimination under Title VII, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), has led some courts and administrative agencies to extend Title VII protections to gender identity and gender expression claims.

The plaintiff in Schroer was a transgender woman who transitioned to a female gender identity and expression as an adult. Prior to her transition, she served in the U.S. Armed Forces for 25 years, retiring in January 2004 with the rank of colonel. She held a very high-level security clearance at the time of her retirement, due to her anti-terrorism work with the U.S. Special Operations Command.

people-coffee-meeting-team-7096The past few months have seen proverbial dams burst with regard to sexual harassment allegations in places like Washington, D.C. and Hollywood. People—perhaps mostly, but not exclusively, women—who have long felt that coming forward would endanger their careers, or even their safety, finally feel that they can tell their stories. Months before the first allegations against Hollywood producers and Washington politicians began to dominate the news cycle, female entrepreneurs and tech workers in Silicon Valley, New York City, and elsewhere around the country were exposing cultures of sexual harassment in the startup world. The nature of the startup scene, however, presents certain legal challenges. Employment statutes prohibiting New York City sex discrimination and sexual harassment allow employees to file suit against their employers, but the relationship between startup founders and investors is not always that of employee and employer. In the absence of direct legal relief through anti-discrimination laws, entrepreneurs and investors are trying other methods to combat sexual harassment.

Laws like Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL) prohibit employment discrimination based on a person’s sex. Sexual harassment, which includes a range of unwelcome, sexually oriented behaviors, from bad jokes to outright assault, constitutes unlawful sex discrimination when it is severe enough to create a hostile work environment impeding an individual’s ability to do their job, or when an employer makes sexual activity a condition of employment.

In order to successfully assert a claim for sexual harassment under Title VII, the NYSHRL, or another statute, a plaintiff must demonstrate an employment relationship. This is not present in many encounters between entrepreneurs and investors. A common, and often defining, feature of a “startup” company is an inability to meet operating costs through business revenue. Many startups spend years developing a product or service before even expecting such revenue. Instead, they rely on funding from investors. Venture capitalists (VCs) provide funding to startup businesses in exchange for stock in the company, and they often place one or more people on the company’s board of directors. If a VC sexually harasses an entrepreneur prior to this part of the funding process, the entrepreneur may have no recourse under existing anti-discrimination laws.
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Train wreckIn early October 2017, a prominent Hollywood production company fired one of its founders after numerous accounts of alleged sexual harassment and other misconduct became public. By mid-November, at least 50 women had come forward with allegations that depict a pattern of behavior going back decades. The allegations name a specific individual as the perpetrator, but legal liability for unlawful conduct like sexual harassment is not necessarily limited to the individual. The state of New York has reportedly opened an investigation into the producer’s company. At least two lawsuits allege that the company was aware of the producer’s behavior and was therefore negligent in failing to intervene.

New York sexual harassment is considered unlawful sex discrimination under Title VII of the Civil Rights Act of 1964, state law, and New York City law. Employers are vicariously liable for sexual harassment perpetrated by supervisors or managers against an employee in a subordinate position. An employee alleging sexual harassment by their boss can therefore seek to hold the employer liable under anti-discrimination law. To assert a claim under an employment statute like Title VII, a complainant must establish an employment relationship, either as an employee or as a job applicant. Certain common law claims, such as negligent hiring or negligent supervision, may be available when employment statutes might not apply.

The New York Attorney General (NYAG) announced in late October that it had opened an investigation into the company co-founded by the former film producer. The NYAG’s office has authority to investigate possible violations of the New York State Human Rights Law (NYSHRL), which prohibits multiple forms of workplace discrimination, including sex discrimination and sexual harassment. The statute also prohibits “aiding and abetting” unlawful employment practices. N.Y. Exec. L. § 296(6).

restaurant waitressNew York City is famed throughout the world for its restaurants, which offer a truly global selection of cuisine. Even the most glamorous restaurants in the city, however, are often anything but glamorous for many of the people who work there. Sexual harassment in New York City restaurants might soon gain as much notoriety as the city’s restaurants have gained fame. Renewed attention to Hollywood’s culture of sexual harassment and abuse has brought the issues of other industries in other cities to light, including the New York City food scene. A lawsuit filed this summer against a famous Manhattan hotel offers multiple examples of New York City sexual harassment in the service industry, and the ensuing months have brought further claims against restaurants and their chefs.

Federal, state, and local anti-discrimination laws identify two categories of sexual harassment, both of which are frequently present in the restaurant business. The first category, known as quid pro quo sexual harassment, involves requests or demands for sexual contact in some form in exchange for a job, or for preferable shift assignments and other features of employment. It often also involves overt or implied threats to one’s job if the requests are denied. The second category, hostile work environment, consists of unwelcome remarks, jokes, overtures, and other actions of a sexual nature that are pervasive or severe enough to interfere with the ability to perform one’s job duties. The conduct can range from offensive jokes to outright sexual assault.

Numerous features of the restaurant business seem to lend themselves to sexual harassment by supervisors, managers, coworkers, and customers. While sexual harassment is not limited to harassment of female servers and hostesses by men, that is perhaps the archetypal example, and it probably constitutes a substantial amount of the sexual harassment that occurs in New York City restaurants:

It has been hard to miss the recent headlines involving a major director and producer being accused of sexual abuse and harassment by several women. Indeed, what initially seemed like a single incident quickly turned into a series of allegations, each corroborated by a number of other victims who gathered the courage to come forward and discuss what they were put through.

Dark FaceWhen it comes to discussing sexual harassment or abuse, it is not uncommon for additional victims to come forward once the first claim is made against an alleged harasser. To be sure, sexual harassment and sexual abuse are both extreme violations of a person’s dignity, and openly discussing one’s victimhood is something that someone must be ready to handle.

In the past, society has inexcusably allowed a stigma to attach to victims of sexual abuse or harassment. This perceived stigma attaches to all types of New York sexual harassment and abuse, including allegations involving male victims and male perpetrators.

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The gender wage gap in New York City is very real, with women making on average between $12,000 and $15,000 less than their male counterparts who perform the same jobs. And while New York City employs a facially gender-neutral pay scale, women end up with lower salaries because they are placed in the lower paying positions, or the positions that offer less influence. The result is a 17-18% gender wage gap.

MoneyThe reasons for the wage gap are archaic and relate to the misconception that women are “supplemental” wage earners whose primary role is to raise children. However, recent studies considering gender productivity among employees do not support using gender as a proxy for productivity or reliability in the workplace, which is a form of New York gender discrimination.

Despite the lack of evidence supporting the gender wage gap, employers have been able to get away with the practice of offering women lower salaries for years. However, according to a recent news report, legislation signed by Mayor de Blasio will reduce an employer’s ability to perpetuate the gender wage gap.

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Pride Flag mapEmployment discrimination based on gender identity or gender expression remains an uncertain legal matter in many parts of the country, with many seemingly contradictory interpretations of existing law. Federal law does not expressly recognize gender identity and gender expression as protected categories, but the Equal Employment Opportunity Commission (EEOC) has interpreted the prohibitions on sex discrimination in Title VII of the Civil Rights Act of 1964 to include gender identity and expression. The Department of Justice (DOJ), on the other hand, has recently changed its position to the view that Title VII does not apply to these categories. New York gender identity discrimination law protects transgender workers from discrimination at the state level, as well as in many municipalities. A lawsuit filed earlier this year by a transgender woman in a Michigan state court appears to be seeking to apply the EEOC’s position to state law, arguing that sex discrimination inherently includes gender identity and expression. Reed v. McDonald’s Corp., et al., No. 17-007889-CD, complaint (Mich. Cir. Ct., Wayne Cty., May 25, 2017).

The New York State Human Rights Law prohibits employment discrimination on the basis of “sex,” while the New York City Human Rights Law covers discrimination based on “gender.” N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(1)(a). Both statutes define these terms to include gender identity, including when that identity does not match the gender assigned to an individual at birth, and gender expression. 9 CRR-NY 466.13(c), N.Y.C. Admin. Code § 8-102(23).

Federal employment discrimination law does not expressly include gender identity or gender expression in its definition of “sex.” The EEOC, however, has interpreted Title VII as applying to discrimination based on transgender status, citing court opinions regarding stereotypes about sex and gender. See, e.g., Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). This interpretation of Title VII now conflicts with the DOJ’s view of the statute. Attorney General Eric Holder issued a memorandum in December 2014 directing U.S. Attorneys and DOJ agency heads to apply a similar reading of Title VII to the EEOC. This interpretation was revoked in a memo issued on October 4, 2017.

Gender identity and gender expression are not specifically identified as protected categories in federal anti-discrimination law. New York City’s employment anti-discrimination statute includes both gender identity and gender expression, making it one of the most extensive such laws in the country. Despite a variety of recent setbacks at the federal level, caselaw has been gradually developing in a direction that offers some hope for the view that gender identity and gender expression are already protected by federal prohibitions on sex discrimination. A U.S. Supreme Court decision finding that Title VII of the Civil Rights Act of 1964 prohibits “sex stereotyping” could provide a basis for claims based on gender identity and expression. A New York gender discrimination case filed in a Manhattan federal court seeks confirmation of an arbitration award finding sex discrimination, based in part on sex stereotyping. Berger v. Kargo Global, Inc., No. 1:17-cv-04288, petition (S.D.N.Y., Jun. 8, 2017).

Housewife cartoonTitle VII states that it is “an unlawful employment practice” to discriminate against an employee or job applicant “because of…sex” or other factors. 42 U.S.C. § 2000e-2(a). The definition of “because of sex” has expanded over the years, through both legislation and court decisions, to include more specific acts like sexual harassment and pregnancy discrimination. See, e.g. id. at § 2000e(k). The Supreme Court has also held that sex discrimination under Title VII includes discrimination on the basis of stereotypes about how members of a particular gender should, or should not, behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Justice Brennan, writing for the majority in Price Waterhouse, offered the example of “[a]n employer who objects to aggressiveness in women” but who “require[s] this trait” in employees. Id. at 251. This would put female employees “in an intolerable and impermissible Catch-22,” since they would risk losing their job no matter what they do. Id. Subsequent court decisions have indicated that unlawful sex stereotyping can involve both female employees deemed insufficiently feminine and male employees deemed insufficiently masculine. This analysis could also apply to transgender and gender-nonconforming employees, although no clear legal precedent currently exists.

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