Articles Posted in Gender Discrimination

A state appeals court revived a New York gender discrimination claim against the owners of a local wellness clinic. In addition to being co-owners, the defendants were husband and wife. One of the defendants, the husband, hired the plaintiff as a yoga instructor and massage therapist and acted as her direct supervisor. The plaintiff and her supervisor maintained a professional relationship over the course of her employment; however, her supervisor disclosed that his wife (and the co-owner of the clinic) might get jealous of the plaintiff because she was “too cute.”

Yoga pose

Months later, the plaintiff received threatening text messages from her supervisor’s wife. The messages stated that the plaintiff was not welcome at the clinic any longer and that she should stay away from her husband and her family. On the next morning, the plaintiff received an email from her supervisor, notifying her that her employment was terminated and that he would call the police if she returned to the office.

The plaintiff filed a lawsuit in New York state court, alleging gender discrimination under the New York State Human Rights Law and the New York City Human Rights Law. Under these laws, employers are prohibited from taking an adverse employment action against an employee when motivated by reasons related to the employee’s sex or gender, including, as the plaintiff argued, sexual attraction.

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gender equalityThe rights of transgender people have been the subject of multiple victories and setbacks in the past few years. With regard to protections against employment discrimination, New York City law expressly includes gender identity and gender expression as protected categories, as do laws in many other cities and states. At the federal level, however, Title VII of the Civil Rights Act of 1964 does not specifically mention gender identity or gender expression. Many advocates for transgender rights argue that certain judicial interpretations of Title VII’s prohibition on sex discrimination apply its protections to both sexual orientation and gender identity and expression. This argument has had some success at the federal appellate level with regard to sexual orientation. The Equal Employment Opportunity Commission (EEOC) has adopted this view for both types of discrimination. At least one case currently pending in a Circuit Court of Appeals is making a similar argument about the applicability of Title VII to gender identity and gender expression.

Justice William Brennan interpreted Title VII as a clear statement by Congress “that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The plaintiff in that case claimed that she was denied partnership because she failed to conform to common stereotypes about how women should behave. The evidence included a statement by a partner advising her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The court held that this sort of “sex stereotyping” was an unlawful form of sex discrimination under Title VII.

Many advocates and judicial opinions have noted the resemblance of sexual orientation discrimination to the type of “sex stereotyping” addressed in Price Waterhouse. Gay and lesbian employees, the argument goes, do not fit the stereotype of whom individuals should love. Some courts have expressed sympathy for this argument, while also stating that their hands are tied without further action by Congress. See, e.g. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001). Although it has yet to receive much judicial scrutiny, the applicability of the “sex stereotyping” argument to gender identity and expression is not hard to see.

jewelerSexual harassment continues to be a significant problem in workplaces all over the country. Laws at nearly every level protect employees against sexual harassment and related practices, and the need for these protections is evident every day. A class action first filed over a decade ago demonstrates just how widespread and pervasive the problem is and how complicated its legal remedies can be. The case began in 2006, when over a dozen current and former employees of a major jewelry retailer complained of sex discrimination, including sexual harassment. This led to an ongoing proceeding before the American Arbitration Association (AAA) and a federal lawsuit. Jock, et al. v. Sterling Jewelers, Inc., No. 11-160-00655-08, 1st am. complaint (AAA, Jun. 26, 2008); No. 2:08-cv-02875, am. complaint (S.D.N.Y., Dec. 30, 2009). The arbitrator granted class certification in 2015, and as of early 2017, the class had about 69,000 members. The case was back in the news recently, when lawyers for the plaintiffs obtained permission to release sworn statements by their clients to the media.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of several factors, including sex. The U.S. Supreme Court has held that sexual harassment constitutes sex discrimination in violation of Title VII. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Sexual harassment may be the subject of a class action complaint if the plaintiffs and their claims meet the criteria, including numerosity of complainants and commonality of claims and defenses. See Jenson v. Eveleth Taconite Co., 824 F.Supp. 847 (D. Minn. 1993).

Federal, state, and local employment statutes authorize civil lawsuits against employers for discriminatory practices, including sexual harassment. Many employers require their employees to sign contracts with arbitration clauses, however, which potentially keep them from seeking relief in a court of law. Arbitration is a method of alternative dispute resolution that resembles a civil lawsuit. A neutral arbitrator, who often has experience as a judge, reviews the allegations and evidence from both sides and may conduct hearings. Whether the parties are bound by an arbitrator’s decisions, and the extent to which a court may intervene in or overrule the arbitration, depends in large part on the terms of the employment contract.

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CaregiverIn 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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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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