New York State Amends Its Human Rights Law to Include Improper Disclosure of a Worker’s Personnel File as a Valid Basis for a Retaliation Claim

A recent commercial for Apple’s iPhone touts the device’s ability to keep your private information private. The commercial points to an ever-increasing concern in today’s world. We all know that we have personal information stored in a variety of places and, in some of those, we’re not the one in control of the flow of that content. Sometimes, the concern is the exposure of information that could be personally or professionally damaging to you. When the one doing that disclosing is your employer and the reason they’re doing it is a retaliatory one, then you may be entitled to sue and obtain compensation under the newly amended New York State Human Rights Law. A knowledgeable New York City workplace retaliation attorney can help show you how to accomplish this.

Earlier this year, the New York legislature passed S.5870/A.7101, and Gov. Kathy Hochul signed it into law. The bill amended Section 296 of the New York State Human Rights Law to expand the definition of what can constitute actionable retaliation. The new definition says that retaliation “may include… disclosing an employee’s personnel files because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article…”

In other words, if you were engaged in a protected activity and your employer, in an attempt to harm you, disclosed some or all of your personnel file, then that’s against the law now. The range of protected activities can be anything from, say, testifying in a coworker’s age discrimination case to filing your own formal sexual harassment claim to complaining to your supervisor about race discrimination in your work area to assisting a colleague in their sexual orientation discrimination case. These are just a few examples.

Keeping Your Personal Health Information Private

At first blush, you might ask.. is this really such a big deal? Short answer: Yes. The importance arises from the content that employment files contain, especially personal health information. For example, your file might reveal that you are HIV+, a fact known only by you, your closest confidantes, your doctor, and your employer’s HR team. While the stigma surrounding HIV and AIDS arguably has lessened over the last four decades, there are still many people who justifiably might prefer to keep that information secret. Similar concerns and preferences might surround other health conditions documented in your employment file, such as your past hospitalization in a psychiatric facility due to a mental health breakdown or your past completion of a drug addiction rehab.

Additionally, the health information you might prefer to keep private could go beyond just those conditions with societal stigma (like addictions, mental health issues, or HIV.) Say, for example, you sought Family and Medical Leave Act (FMLA) leave to care for your child who had a temporary but acute medical problem. After some pushback from your employer, you were approved, and eventually took a substantial amount of FMLA leave. While this is not generally stigmatizing in society, it is something you reasonably might not want to be disclosed to all your potential future employers for fear that they (however inappropriately) might discount your application.

Of course, the sort of information you might prefer to keep private isn’t relegated solely to health-related content. Your employment file likely has every formal reprimand, every “write-up,” every performance improvement plan, and every other formal punishment you’ve encountered at that job.

Stanford Study: the Fear of Retaliation Isn’t Without Cause

Furthermore, your file will have every documented instance where you complained about harassment. The notion that complaining about harassment might hurt you in the eyes of those judging you professionally is not some hypothetical thing. In 2019, a Stanford Ph.D. student conducted an experiment where subjects were asked to review five variations of a hypothetical promotion candidate named “Sarah.” The results showed that the subjects were 6% less likely to recommend promotion if Sarah self-reported sexual as compared to a coworker reporting Sarah’s sexual harassment. The file with no mention of harassment made the panel the most likely to support Sarah’s promotion.

Illegal employment retaliation can occur in a wide variety of forms and fashions, up to and including how the personal information in your personnel file is used. If you think that your employer has taken potentially damaging action against you for retaliatory reasons, get in touch with the skillful New York workplace retaliation attorneys at Phillips & Associates. No one should have to fear harmful consequences when they engage in protected activities and, when they do, we’re here to help them take the right legal action. To find out more, contact us online or at (866) 578-0614 to set up a free and confidential consultation today.

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