Articles Posted in Race Discrimination

On the job, you may have experienced something that was blatantly inappropriate, unacceptable, and wrong, but you may not instantaneously have spoken out. Even if you didn’t, and even if others thought you were “OK” with it, that doesn’t make it OK and doesn’t mean that you cannot use that improper conduct as the foundation of a hostile work environment lawsuit. If it has happened to you at your workplace, reach out to a knowledgeable New York hostile work environment attorney to discuss your legal options.

Have you ever found yourself in a situation where someone did or said something you found highly personally offensive? (We’re confident almost all readers are nodding “yes” right now.) Many of us may say or do nothing. “Unfriending” that guy you graduated high school with — the one who keeps posting memes mocking your ethnicity or your sexual orientation or your religion — would cost you little, but you fear the possible repercussions anyway. You somehow feel an innate urge not to “rock the boat.”

Now, imagine you were subjected to those offensive comments, not on Facebook, but at work. Repeatedly. You know the behavior is wrong and is hurtful to you. But you also know you need that job, and you fear the consequences if you speak out. Would you object, or would you gently smile and laugh (and hope it stops soon)? Whether you are the objecting kind or the laughing type, you may still potentially have experienced an actionable hostile work environment.

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Back in 2007, radio host Don Imus got fired after he referred to the Rutgers University women’s basketball team, the majority of whom were Black, as “nappy-headed hos”. That incident may have been particularly infamous, but the thousands of women of color working in New York City know that such attitudes are not uncommon. Many women of color face insidious race and/or gender discrimination on the job. Oftentimes, though, it will be something less obvious than being publicly demeaned with vulgar language like Imus’s. While it may have been less obvious, that doesn’t necessarily make it any less damaging to you in your career. If it happens to you, you should take action. Get in touch with a knowledgeable New York City discrimination lawyer to discover what legal options may exist for you.

Take, for example, K.R., an Afro Latina woman of Dominican ancestry working at a Manhattan media strategy and “crisis management” firm.

According to K.R.’s discrimination lawsuit, which she filed last year, the firm’s owner criticized her demeanor on the phone as “angry.” The complaint stated that, by contrast, the woman accused exactly none of her white female workers of having an “angry” phone demeanor.

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Back in March, this blog covered a new regulation from the New York City Commission on Human Rights. That final rule, which became effective at the end of January, regarded religious or race discrimination and an employee’s hair. Our blog post from March offered details about what kind of employer conduct is now prohibited under the new rule but, as any experienced New York discrimination lawyer can tell you, it’s not just about having a protective law or regulation on the books and proving that your employer took a negative action against you, it is also about being able to overcome the defenses that you reasonably can expect that your employer will throw at you. With that in mind, this post shall explore the nature of employer defenses against hair discrimination and how you can confront them.

One affirmative defense that the law makes available to employers is that the employer’s hair or head-covering rules were needed to address a “legitimate health or safety concern.” What’s worth knowing is that it’s not enough for your employer simply to raise the issue of health and/or safety. Instead, the employer must have a specific basis(es) for its purported health and/or safety concern, and that basis must be a legitimate one.

For example, a pharmaceutical manufacturing employer conceivably could enact certain head covering and/or hair-related restrictions for all employees working in “cleanroom” facilities where regulations demand a space that is free or nearly free from particulates.

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It is, perhaps, the most incendiary word in the English language today. But is a single utterance of the N-word enough to make for a successful hostile work environment claim under federal law? With the U.S. Supreme Court refusing to hear a Texas man’s case, the answer to that will remain varied based upon where you bring your case. Fortunately for Black workers here in New York, there are a multitude of legal avenues available if you’ve been on the receiving end of that word on the job. To learn more about your options, make sure you’re getting the knowledgeable advice you need from an experienced New York workplace discrimination lawyer.

The case the Supreme Court declined to take involved a Black man who worked at a Dallas hospital and who ostensibly was fired for insubordination. According to the worker, his was a hostile work environment and his employer actually fired him in retaliation for his complaining about that environment.

Allegedly, R.C.’s workplace was one where the “N-word” was scratched into an elevator and where the storage room he often used had two swastikas drawn on the wall. The trial court and the Fifth Circuit Court of Appeals said that the N-word graffiti and the swastikas were not severe or pervasive enough to make for a hostile work environment.

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Discrimination in employment on the basis of race or religion violates every antidiscrimination statute in the country. These are among the practices that brought on the passage of the first such laws decades ago. Despite a great deal of progress, much work remains to be done. As New York City employment discrimination attorneys, we have seen many ways that employers have subjected workers to adverse treatment because of race or religion, while making it seem like it has nothing to do with either. Whether this is intentional on employers’ part is not nearly as important as the impact it has on workers throughout the city and country. Hairstyle discrimination is a major area of ongoing race or religious discrimination that might not look like race or religious discrimination to many people. New York City issued guidance on this issue in 2019. The New York State Legislature included it in the state’s antidiscrimination law the same year. In early 2021, the New York City Commission on Human Rights (CHR) issued a final rule formalizing a ban on hairstyle discrimination.

The CHR issued guidance on hairstyle discrimination in February 2019. It interpreted the prohibitions on race and religious discrimination in the New York City Human Rights Law to protect workers’ right to “hairstyles that are closely associated with their racial, ethnic, or cultural identities.” It noted that, for Black workers, employers’ policies on grooming and appearance can exclude their natural hair. Many Black workers have had to obtain expensive and damaging hair treatments simply to comply with their employers’ policies. It further noted that some communities “have a religious or cultural connection with uncut hair.”

While the CHR’s guidance document only expressed the agency’s interpretation of city law, state lawmakers made some of these protections explicit in the New York State Human Rights Law later in 2019. A bill signed by the governor that July added two new definitions to the statute. The term “race” now includes “traits historically associated with race,” with specific reference to “hair texture and protective hairstyles.” N.Y. Exec. L. § 292(37). “Protective hairstyles” includes “braids, locks, and twists.” Id. at § 292(38). The CHR’s guidance included additional examples, such as “cornrows, Afros, Bantu knots, [and] fades.”

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The novel coronavirus, known more officially as SARS-CoV-2 and less officially as “the coronavirus,” has had a devastating impact on New York City and surrounding areas. While the daily number of new cases in New York is decreasing, the virus shows no sign of slowing down in many other parts of the country, even as most states are in the process of “reopening” their economies. The disease is bad enough by itself, but its supposed origins in China have also led to an unfortunate backlash against people perceived to be of Chinese heritage. In practice, this often means anyone who appears to have Asian ancestry, including in New York City. Discrimination, harassment, and worse have occurred in workplaces and in public. The New York City Commission on Human Rights (CHR), which works to prevent discrimination on the basis of race, national origin, and other factors, created a response team in April to address discrimination and harassment related to the pandemic. If you feel you have suffered from discrimination or harassment while at work based on real or perceived national origin, it is prudent that you speak with a New York City national origin discrimination attorney as soon as possible to go over your rights under the law.

Laws Against Race and National Origin Discrimination in the Workplace

The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on a person’s “actual or perceived…race…[or] national origin.” N.Y.C. Admin. Code § 8-107(1)(a). This includes terminating someone’s employment, demoting them, denying them shifts or assignments, and other adverse actions, when the sole or primary purpose is that they are a particular race or have a particular national origin.

The coronavirus pandemic involves multiple forms of employment discrimination. The CHR has adopted guidelines from the Equal Employment Opportunity Commission (EEOC) related to disability discrimination. The EEOC first published the guidelines in October 2009 in response to the H1N1 pandemic, and later adapted them for COVID-19. The CHR created the response team to look into anti-Asian bias.

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As the coronavirus and COVID-19 has ravaged New York City and many other parts of the world, many workplaces have quickly adapted by allowing employees to work from home. The use of videoconferencing software is growing at astonishing rates. According to some sources, downloads of one popular videoconferencing app increased from 56,000 per day to over 2.1 million per day between January and March. Widespread use of remote-working technologies brings other problems, though. Workplace sexual harassment has always had an online, virtual component, as harassers make use of email and text messaging. With vastly more people working remotely, and fewer people physically occupying workplaces, New York sexual harassment attorneys could see more claims arising from virtual spaces.

From a legal standpoint, sexual harassment in two general scenarios constitutes sex discrimination under laws like Title VII of the Civil Rights Act of 1964. Quid pro quo sexual harassment occurs when an employee must accede to some sort of sexual demand as a condition of employment. A hostile work environment occurs when pervasive and unwelcome sexual conduct in the workplace renders an employee unable to perform their job duties. This usually involves multiple acts occurring over a span of time, ranging from inappropriate jokes to more overt sexual acts. A single incident could support a hostile work environment claim, however, if it is particularly heinous or severe.

Neither type of sexual harassment has to occur in-person for it to violate antidiscrimination statutes. Online harassment is as old as the internet itself. A supervisor or manager could, for example, commit quid pro quo sexual harassment by refusing to provide favorable work assignments to an employee unless that employee engages in explicit online interactions or sends explicit photos. A workplace that tolerates lewd jokes or other sexual banter does not become any less hostile if it moves entirely to online spaces. An employee who is threatened or discomfited by this behavior in an in-person staff meeting could be just as distressed by the same behavior in a video conference call.

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The coronavirus has had a massive impact on people’s lives, and their jobs, in a very short span of time. In order to slow the spread of the virus, and to give the healthcare system more time to adapt and prepare, local and state governments are urging people to practice “social distancing.” Governors and mayors have ordered businesses to cut their hours, or to close down substantial parts of their operations. As many forms of economic activity have slowed, companies have begun laying off employees. This is not, in itself, unlawful, but as New York employment discrimination attorneys are aware, it is not always the layoffs themselves that are legally problematic — it is the way in which employers carry out the layoffs.

Employment at Will

New York is an “at will” employment state, meaning that an employer may fire an employee for any reason, or no reason at all, as long as it does not violate contractual obligations, internal policies, or the law. An employer cannot fire someone because of their race, religion, sex, or another protected category, nor can they fire them in a way that creates a hostile work environment on the basis of a protected category.

Harassment and Hostile Work Environment

Antidiscrimination laws at all levels in New York City treat harassment on the basis of sex, race, national origin, and other factors as a form of unlawful discrimination.

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The New York City Commission on Human Rights (CHR) issued a guidance document in February 2019 addressing workplace dress codes and grooming standards. Policies that prohibit hairstyles commonly associated with particular racial groups may violate the provisions of the New York City Human Rights Law (NYCHRL) that address race discrimination. The New York State Legislature took this issue on directly in July 2019, when it passed a law amending the New York State Human Rights Law (NYSHRL) to include “hair texture and protective hairstyles” in its definition of “race.” New York is the second state, after California, to include this in its antidiscrimination statute. A bill pending in New Jersey may make that state the third.

In its February 2019 guidance document, the CHR offers background information on hairstyle discrimination and its close relationship to race discrimination in employment. It is a significant problem among Black people, defined in the document as individuals with “African, African American, Afro-Caribbean, Afro-Latin-x/a/o or” other “African or Black ancestry.” It is also a major issue among people “who identify as Latin-x/a/o, Indo-Caribbean, or Native American.”

The CHR notes that, for many people, certain hairstyles are “part of a racial or ethnic identity” or “cultural practice.” Many of these hairstyles are prohibited under employer policies that treat them as “not suited for formal settings.” Whether intentional or not, these policies specifically target hairstyles commonly associated with specific racial or ethnic groups. The CHR document also addresses how some people’s “natural hair,” meaning hair that is “untreated by chemicals or heat,” can violate these standards. Adherence to these employment policies can be expensive, and can cause damage to hair over time from the use of chemicals to straighten hair.

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An important limitation on employees’ rights under various antidiscrimination statutes is how each statute defines “employer.” Most laws set a minimum threshold of number of employees. Employers with fewer employees than that number are not considered “employers” within the meaning of that statute. In practice, this means that employees of small employers are not eligible for those laws’ protection against workplace discrimination, sexual harassment, and other unlawful practices. A new law passed by the New York Legislature, which the Governor is expected to sign, will expand the coverage of the New York State Human Rights Law (NYSHRL) to almost all employers in the state. The Legislature previously amended the NYSHRL to eliminate the minimum employee count for claims involving alleged sexual harassment. The new bill, A8421/S6577, as amended by S6594, makes the full range of the NYSHRL’s provisions applicable to employers of all sizes.

Title VII of the Civil Rights Act of 1964 defines an “employer” as a person who employs at least fifteen people for at least twenty weeks in the current, or the most recent, calendar year. 42 U.S.C. § 2000e(b). The federal government, its agencies, and any corporation wholly-owned by the federal government are not considered “employers” under Title VII. Indian tribes and the government of the District of Columbia are also exempt from Title VII’s definition.

The New York City Human Rights Law (NYCHRL) defines an “employer” as any person with four or more employees. N.Y.C. Admin. Code § 8-102. Much like the NYSHRL prior to the new amendments, the statute makes an exception in cases involving alleged sexual harassment. The NYCHRL also provides that individuals who are employed as independent contractors count towards the employer’s employee count, as long as they do not employ anyone themselves.
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