Race Discrimination Category Archives — New York Employment Attorney Blog Published by New York Employment Lawyers

August 28, 2019

New York Amends State Human Rights Law to Prohibit Employment Discrimination Based on Hairstyle

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.

July 25, 2019

New York Legislature Expands State Human Rights Law to Cover All Employers

by Phillips & Associates

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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June 27, 2019

Phillips & Associates Lawyers Recognized for $2.3 Million Jury Verdict in Discrimination Case

by Phillips & Associates

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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May 8, 2019

New York City Street Art Projects Take on Anti-Black Racism and Gender-Based Harassment

by Phillips & Associates

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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March 25, 2019

New York City Launches Campaign Against Race Discrimination and Harassment

by Phillips & Associates

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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March 7, 2019

New York City Takes on Hairstyle Discrimination, Noting Its Close Relationship to Race Discrimination in Employment

by Phillips & Associates

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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