Articles Posted in Gender Discrimination

A law enacted by the New York City Council, Local Law 95 of 2018, requires the city’s Commission on Human Rights (CHR) to make information available to the public about how city law addresses sexual harassment. Under the New York City Human Rights Law (NYCHRL), sexual harassment in the workplace is a form of unlawful sex discrimination. Local Law 95 requires the CHR to post information online about what constitutes sexual harassment and what remedies are available. It was enacted as part of a larger package of bills collectively known as the Stop Sexual Harassment in NYC Act. A new page went live on the CHR’s website in August 2018, shortly before the deadline set by the City Council. The page includes a wealth of information, including a notice and fact sheet summarizing city law on sexual harassment. These documents provide a helpful overview for individuals who might be considering whether to contact a New York City sexual harassment attorney.

The NYCHRL prohibits discrimination in employment on the basis of numerous factors, including gender. See N.Y.C. Admin. Code § 8-107(1)(a). The statute uses an expansive definition of “gender” that includes “actual or perceived sex, gender identity and gender expression,” and other characteristics. Id. at § 8-102. These definitions of “gender” and “gender discrimination” have a much broader scope than many antidiscrimination laws. The prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964, for example, is not expressly extended to factors like gender identity. Both statutes consider sexual harassment to be a type of sex discrimination.

The New York City Council passed Local Law 95 as Int. No. 614-A on April 11, 2018, and the mayor signed it into law on May 9. The law amended the NYCHRL by adding a new section entitled “Sexual harassment information,” codified at § 8-132. It requires the CHR to “post conspicuously on [its] website online resources about sexual harassment.” These resources must include information identifying sexual harassment as “a form of unlawful discrimination under local law,” providing examples of conduct that constitutes sexual harassment, identifying government agencies that receive complaints, describing the CHR’s complaint process, and stating that retaliation is also unlawful. The law also recommends including information on “bystander intervention education,” as well as “an interactive tool” that guides users through a CHR complaint. The effective date of the law was August 7, 2018.
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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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Since the fall of 2017, the national discourse has given considerable attention to the issue of sexual harassment in the workplace, perhaps more than it has ever received before. This is often referred to as the #MeToo movement. According to some news reports, it has left managers, supervisors, and executives in some industries uncertain about the future. In late 2018, Bloomberg reported that some Wall Street managers have adopted a new rule: “Avoid women at all costs.” Hyperbole aside, this reveals what could become a larger problem. In an effort to avoid what they perceive as risks for future sexual harassment claims, could employers perpetuate other forms of sex discrimination? One column describes this as a possible “unintended consequence” of #MeToo, as if women and their advocates somehow bear some share of responsibility. Other pieces take tones that range from scolding to mocking. For New York City sexual harassment attorneys, this is a very serious question.

Employment discrimination on the basis of sex is prohibited in New York City under three statutes: Title VII of the federal Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). An employer violates the law if they refuse to hire, refuse to promote, terminate, or otherwise discriminate against an individual based on their sex. These laws protect both men and women, although it is women who bear the brunt of sex discrimination in the workplace, both historically and currently. Provisions in the NYCHRL additionally protect transgender and non-binary workers against discrimination.

Sexual harassment constitutes sex discrimination under these statutes in two general scenarios: quid pro quo sexual harassment and hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a form of sex discrimination under Title VII more than thirty years ago in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). It expanded this to include same-sex sexual harassment, e.g. male employees subjecting another male employee to a hostile work environment, twelve years later in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
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A jury in a Manhattan federal court returned a verdict this summer in favor of a professor who formerly taught at a university in New York City, and awarded her $1.25 million in damages. The plaintiff alleged sex discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL). Ravina v. Columbia University, No. 1:16-cv-02137, 1st am. complaint (S.D.N.Y., Jul. 8, 2016). The verdict demonstrates how different claims under Title VII may operate independently of one another. The jury actually found in favor of the defendant on the claims involving sex discrimination and sexual harassment. It rendered a verdict in the plaintiff’s favor, however, on her retaliation claims. New York City sexual harassment attorneys often present harassment and retaliation claims side by side, but the two claims involve two different statutory provisions. To borrow a phrase from the political realm, if sexual harassment is the crime, retaliation is often the cover-up.

Discrimination in employment on the basis of sex is an “unlawful employment practice” under Title VII and the NYCHRL. 42 U.S.C. § 2000e-2(a)(1), N.Y.C. Admin. Code § 8-107(1)(a). Multiple court decisions have established that sexual harassment is a form of sex discrimination in two broad categories: when sexual activity in some form is made a condition of employment, and when pervasive and unwelcome sexual remarks or behavior create a hostile work environment. Both laws also state that an employer commits an unlawful employment practice when they discriminate against an employee because they have “opposed any [unlawful employment] practice,” made a complaint alleging an unlawful employment practice, or cooperated in an investigation of an alleged unlawful employment practice. 42 U.S.C. § 2000e-3(a), N.Y.C. Admin. Code § 8-107(7).

A plaintiff, generally speaking, has the burden of proof in a civil lawsuit. They must establish the defendant’s liability by a preponderance of the evidence. A plaintiff must demonstrate to the finder of fact—a judge or jury—that at least fifty-one percent of the evidence supports their allegations against the defendant. If the finder of fact concludes that the plaintiff has not met this burden of proof, they must render a verdict in the defendant’s favor. This does not necessarily mean that the plaintiff’s claims are false or have been disproven. It only means that the plaintiff did not produce sufficient evidence to convince the judge or jury.
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The holiday season means many different things to people: family, friends, food, a general sense of merriment, and so on. It also means that many employers will host holiday parties for their employees, managers, executives, and perhaps clients and customers. The “office holiday party” has a reputation, largely thanks to movies and television, as an unabashedly wild event free from customary rules and restrictions. It is our duty as New York City employment attorneys to remind everyone that the rules still apply, however wild the party might be. Harassment on the basis of any protected category is unlawful. We believe that holiday parties should be fun for everybody, meaning that the fun should never come at anyone’s expense.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, race, color, religion, and national origin. Other federal statutes prohibit age and disability discrimination. The Equal Employment Opportunity Commission (EEOC) has determined that this includes harassment of any employee based on these factors, whether it comes from someone in a supervisory position or not. An employer may be liable in either situation if they are aware of the harassment and fail to make reasonable efforts to address it. The New York City Human Rights Law (NYCHRL) protects a much broader range of categories than Title VII, including sexual orientation and gender identity.

The EEOC has stated that isolated incidents, unless they are particularly severe, do not constitute violations of Title VII or other statutes. This generally applies to violations of the NYCHRL as well. Multiple acts of harassment become a violation of antidiscrimination law when they create a hostile work environment, or otherwise interfere with an employee’s ability to do their jobs.
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Over three thousand people gathered in New York City on November 1, 2018 as part of a worldwide “walkout” by Google employees. The walkout’s purpose was to protest the company’s reported handling of sexual harassment and misconduct allegations against a former executive. About twenty thousand employees worldwide participated in the walkout. The company later announced changes to its procedures in sexual harassment cases. In situations like this, where employees take direct action to demand change from employers, New York City sexual harassment attorneys should be aware of workers’ legal rights, and the extent of protection for workers who walk off the job.

Statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) prohibit employers from discriminating against workers on the basis of sex. This includes sexual harassment in various scenarios. Before aggrieved employees may go to court to sue for damages, they must make use of administrative procedures within the employer, if any, and within a government agency like the Equal Employment Opportunity Commission (EEOC). Most antidiscrimination statutes do not require employers to maintain any specific policies or practices regarding the investigation of sexual harassment allegations. The NYCHRL is an exceptions thanks to recent amendments. Employers are required, however, to apply whatever policies and practices they do maintain fairly and consistently.

The walkout by Google employees was not a “strike” in the common sense of the term, since it did not arise from a collective bargaining disagreement between the employer and a union. It still arguably falls under the types of activities protected by the National Labor Relations Act (NLRA). In addition to activities that are directly related to organizing for collective bargaining, the NLRA protects workers’ rights “to engage in other concerted activities for the purpose of…mutual aid or protection.” 29 U.S.C. § 157. Employers may not “interfere with [or] restrain…employees in the exercise” of these rights. Id. at § 158(a)(1).
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The past year has seen a significant increase in public and media attention to the issue of sexual harassment in the workplace. Allegations against major figures in politics, media, and other industries have led to what is known as the #MeToo movement, in which people who have remained silent about their experiences with alleged sexual harassment are finally speaking up. An increase in sexual harassment complaints, however, could lead to at least one potential area of concern—the workload and backlogs of the government agencies tasked with investigating employment discrimination complaints. New York City workers can file complaints with federal, state, or city authorities, but complainants in many parts of the country do not have as many options. The federal Equal Employment Opportunity Commission (EEOC) is responsible for investigating alleged discrimination in violation of Title VII of the Civil Rights Act of 1964, among other federal statutes. The agency has had a substantial backlog of cases for some time, but it remains to be seen whether the past year has added to their backlog of sexual harassment complaints.Workers who have experienced New York sexual harassment may be able to bring claims under three statutes:  Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. Each of these laws considers sexual harassment to be a form of unlawful discrimination on the basis of sex. Agencies at the city and state levels handle complaints under city and state laws, respectively. The EEOC deals with complaints that cite Title VII or another federal anti-discrimination statute.

In order to file a lawsuit under Title VII, a worker must first file a complaint with the EEOC, known as a “charge.” The EEOC will investigate the charge to determine if it has merit. It will pursue a small number of cases on behalf of the complainants. In most cases, however, it will either rule that the charge lacks merit, or it will issue a “right to sue” letter to the complainant. This enables the complainant to file suit in federal court.

The most recent data regarding EEOC charges are from fiscal year 2017. The agency resolved more cases than it received during that year, reducing the overall backlog. It resolved a total of 99,109 charges, while receiving 84,254 new charges. About 25,000 new charges, or 30 percent of the total charges received, alleged sex discrimination in some form. The EEOC stated that nearly 6,700 of those charges alleged sexual harassment.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Court decisions have expanded Title VII’s definition of sex discrimination to include sexual harassment. Some of these decisions are now leading courts around the country to expand Title VII protection to discrimination on the basis of sexual orientation and gender identity. New York City discrimination law, unlike federal law, expressly includes both of these as protected categories. Two Supreme Court decisions on sexual harassment have played a significant role in decisions relating to sexual orientation and gender identity discrimination. One decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that discrimination based on “sex stereotyping” violates Title VII. This year marks the 20th anniversary of the other decision, Oncale v. Sundowner Offshore Services, Inc. (“Oncale II”), 523 U.S. 75 (1998), which held that same-sex sexual harassment is also covered by Title VII.The Supreme Court received the Oncale case from the Fifth Circuit Court of Appeals, which had ruled that Title VII does not apply to harassment between members of the same sex. Oncale v. Sundowner Offshore Services, Inc. (“Oncale I”), 83 F. 3d 118 (5th Cir. 1996). The Fifth Circuit held that it was bound by its own prior decision in Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994). It noted, however, that other courts had reached different conclusions. A concurring opinion from a Second Circuit justice, for example, stated that “harassment is harassment regardless of whether it is caused by a member of the same or opposite sex.” Oncale I at 120 n. 3, quoting Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.1993) (Van Graafeiland, C.J., concurring).

The plaintiff in Oncale was part of an eight-man crew on an oil platform in the Gulf of Mexico. At least three members of the crew, including “the crane operator, and…the driller, [who] had supervisory authority,…forcibly subjected [him] to sex-related, humiliating actions…in the presence of the rest of the crew.” Oncale II at 77. He eventually sued for sexual harassment under Title VII.

A unanimous Supreme Court ruled in the plaintiff’s favor. Writing for the court, Justice Scalia stated that there was no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” Id. at 79. He distinguished the case from claims involving alleged sexual orientation discrimination, finding that “harassing conduct need not be motivated by sexual desire to support an inference of [sex] discrimination.”

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