New York City Restaurant Accused of Sexual Harassment, Caregiver Discrimination in Federal Lawsuit

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.

The lawsuit asserted seven causes of action. Six of them related to wage and overtime claims under federal and state law. The seventh cause of action alleged discrimination on the basis of gender and caregiver status in violation of the NYCHRL. The plaintiff dismissed the lawsuit in May 2018 without a settlement or other resolution. The court granted the dismissal without prejudice, meaning that the plaintiff could re-file within the statute of limitations.

Phillips & Associates’ employment discrimination lawyers represent employees, former employees, and job applicants in New York City, advocating for their rights in claims for unlawful workplace practices under federal, state, and city law. To schedule a free and confidential consultation to discuss your case, please contact us today at (212) 248-7431 or online.

More Blog Posts:

Complaint Alleges Discrimination by New York City Museum Based on Pregnancy, Caregiver Status, Other Factors, New York Employment Attorney Blog, March 6, 2019

Lawsuit Alleged Discrimination Based on Gender Stereotypes About Caregiving, New York Employment Attorney Blog, February 11, 2019

New Law Protects New York City Workers with Caregiver Responsibilities, New York Employment Attorney Blog, July 9, 2018

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