Articles Posted in Race Discrimination

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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Phillips & Associates has established itself as one of New York City’s top employment discrimination law firms, with an exclusive focus on employee representation. Our attorneys have obtained more than $110 million in verdicts and settlements. Many of them have received recognition from their peers as leaders in the field of employment law. The legal publication TopVerdict recently recognized three of our attorneys for a jury verdict of $2.31 million in an employment discrimination lawsuit. Marjorie Mesidor, Brittany A. Stevens, and Nicole A. Welch represented a former employee of the Port Authority of New York and New Jersey (PANYNJ) in a case that alleged hostile work environment based on race and national origin. TopVerdict included the case in its “Top 100 Verdicts in New York” list for 2018.

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees and job applicants on the basis of race and national origin, among other factors. See 42 U.S.C. § 2000e-2(a). Multiple court rulings have established that an employer commits an unlawful employment practice when they create a hostile work environment based on a protected category. While a hostile work environment is probably most familiar in the context of sexual harassment, it can also occur when an unwelcome and pervasive pattern of harassment is directed at a person’s race, color, religion, or national origin.

The Civil Rights Act of 1991 offers further protection against discrimination on the basis of race. It guarantees the right of all persons in the U.S., regardless of race, “to the full and equal benefit of all laws and proceedings for the security of persons and property.” Id. at § 1981. Unlike Title VII, this statute allows plaintiffs to recover punitive damages if they can establish that a defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. at § 1981a(b)(1).
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New York City has taken many actions to combat discrimination and harassment in the workplace. These actions are not limited to legislation, such as the New York City Human Rights Law (NYCHRL), or investigations by the city’s Commissioner on Human Rights (CHR). In 2018, the CHR named Brooklyn-based street artist Tatyana Fazlalizadeh as its first Public Artist in Residence (PAIR). The program partners city agencies with artists “to address pressing civic issues through creative practice.” Fazlalizadeh unveiled a mural, entitled Respecting Black Women and Girls in St. Albans, in Daniel M. O’Connell Playground in Queens on April 12, 2019. The mural addresses experiences of “the daily indignities of anti-Black racism and sexism.”

New York City has officially declared, through the NYCHRL, that “bias-related violence or harassment…threaten the rights and proper privileges of [the city’s] inhabitants.” N.Y.C. Admin. Code § 8-101. The NYCHRL further states “that gender-based harassment threatens the terms, conditions and privileges of employment.” Id. In most situations, the NYCHRL only applies to employers with four or more employers, but any employer, regardless of size, could be liable for gender-based harassment. See id. at § 8-102.

The NYCHRL prohibits employment discrimination on the basis of race, gender, and multiple other factors. Id. at § 8-107(1)(a). “Discrimination” in this context can include workplace harassment. The statute also prohibits any “person,” which may include both individuals and businesses, from engaging in “discriminatory harassment” based on any protected category. This is broadly defined as knowingly using or threatening force to intimidate a person or interfere with their exercise of any legal right or privilege. Id. at § 8-603.
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New York City has one of the country’s most expansive and comprehensive antidiscrimination statutes. The city government frequently looks for ways to improve employee protections against discrimination and harassment. A new campaign by the city’s Commission on Human Rights (CHR) seeks to raise awareness of issues faced by Black residents in housing, employment, and other areas. The campaign’s title, “While Black,” evokes a common saying that involves Black people receiving negative attention, or worse, for otherwise ordinary activities. “Driving while Black,” reflecting the disproportionate number of traffic stops of Black drivers, is perhaps the most famous example. As New York City discrimination attorneys, we have seen far too many examples of race-based discrimination and harassment in the workplace and elsewhere.

The New York City Human Rights Law (NYCHRL) prohibits discrimination on the basis of numerous factors, including race, in employment, housing, banking, and other areas. N.Y.C. Admin. Code § 8-107. Race is one of the core protected categories under most employment discrimination statutes. The New York State Human Rights Law and Title VII of the federal Civil Rights Act of 1964 also prohibit employment discrimination based on race. N.Y Exec. L. § 296(1)(a), 42 U.S.C. § 2000e-2(a).

While these statutes all prohibit race discrimination, they do not provide much detail on the sorts of acts that may constitute such discrimination. The regulations implementing the antidiscrimination provisions of Title VII, for example, contain an entire subchapter on national origin discrimination, 29 C.F.R. Part 1606, but nothing specifically addressing or defining race discrimination. The CHR’s campaign is intended, in part, to raise public awareness of the ways that discrimination and harassment based on race occur in New York City workplaces, public spaces, and elsewhere.
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Race discrimination in employment is not limited to overt expressions of bias. It can be more subtle, particularly when an individual’s expression of their racial, ethnic, or cultural identity is involved. This often occurs with regard to hairstyles. Antidiscrimination statutes like the New York City Human Rights Law (NYCHRL) prohibit discrimination on the basis of race and other factors. The city’s Commission on Human Rights (CHR) recently issued new guidelines that address how anti-Black racism in employment can manifest as complaints about employee hairstyles. A review of court decisions around the country show some recognition of hairstyle discrimination, but New York City race discrimination attorneys should look first to the NYCHRL and the CHR’s guidelines.

In the context of the new guidelines, the CHR defines “Black” to include individuals “who identify as African, African American, Afro-Caribbean, [or] Afro-Latin-x/a/o.” It identifies hairstyles commonly associated with Black people’s “racial, ethnic, or cultural identities” as including “locs, cornrows, twists, braids, Bantu knots, fades, [and] Afros.” The guidelines state that “Black hairstyles are…an inherent part of Black identity,” and are therefore protected by the NYCHRL.

Some courts around the country have recognized race discrimination claims based on employers’ alleged treatment of employees’ hairstyles. A plaintiff alleged that her employer began discriminating against her after she began wearing her hair in an “Afro” style in Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F. 2d 164 (7th Cir. 1976). The court, in recounting how the defendant allegedly expressed its objection to the plaintiff’s hairstyle, noted that “[a] lay person’s description of racial discrimination could hardly be more explicit.” Id. at 168. It went on to find that “[t]he reference to the Afro hairstyle” was an expression of “the employer’s racial discrimination.” Id.
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