Tesla auto botsSexual harassment in specific industries can become the subject of particular public attention when employees speak out about their experiences. This has certainly been true of the financial sector, with many accounts of firm cultures that condone or even encourage harassment of employees in New York City. Sexual harassment, however, is hardly limited to any one industry or region. The technology industry in California has been the most recent recipient of public scrutiny, after allegations of rampant sexual harassment in one major tech company gained wide attention. A lawsuit filed against another prominent Silicon Valley company has kept focus on the region. The lawsuit alleges “pervasive harassment” of female employees, as well as wage disparities and lack of opportunities for promotions. The defendant eventually fired the plaintiff, stating that an internal investigation found her claims to be baseless. Despite this, the lawsuit continues, and it has reportedly inspired others to speak up.

Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sex and other factors. The protections against sex discrimination go beyond prohibitions against blatantly discriminatory practices like refusing to hire someone because of their gender. Courts have found that sexual harassment constitutes unlawful sex discrimination when it involves a demand for some sort of sexual activity or favor in exchange for some employment benefit, or when the harassment is pervasive or severe enough to create a hostile work environment. An employer may be liable for harassment perpetrated by a supervisor or manager. If the alleged harasser is not in a supervisory or managerial position over the recipient, the employer may still be liable if it learns of the harassment and fails to take remedial action.

In 2013, the plaintiff in the lawsuit mentioned above began working for the defendant, which designs, manufactures, and sells electric cars. She eventually received a promotion to a position in the general assembly department as an engineer at the company’s factory in Fremont, California. She was reportedly one of the only women in the department, and she alleges that she received less pay than the male engineers she replaced. She further alleges that less qualified male engineers were promoted over her, that management ignored her reports about problems with quality testing of new vehicles, and that she faced retaliation for those reports.

UnemploymentA substantial number of people in the U.S. have been out of work for months or even years, despite ongoing efforts to find work. Those people may find themselves in a paradoxical situation, in which lengthy unemployment makes it even harder to find a job. Some jurisdictions have enacted laws to protect people from discrimination on the basis of unemployment. New York City’s unemployment discrimination law took effect in 2013. At least two federal judges in Manhattan have considered claims under the New York City law in the past year. One judge focused primarily on jurisdictional questions, while the other undertook some analysis of the claim.

The New York City Human Rights Law (NYCHRL) defines “unemployment” as the state of “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102(27). Employers may not discriminate based on an applicant’s unemployment. Id. at § 8-107(21)(a)(1). An employer may not, for example, refuse to consider applicants who are currently unemployed, nor may they make disparate salary offers to unemployed job candidates. Employers are also prohibited from advertising that positions are only open to people who are currently employed. Id. at § 8-107(21)(a)(2).

A 2015 lawsuit in a Manhattan federal court claimed unemployment discrimination under the NYCHRL, which the court considered in an order on the defendant’s motion to dismiss. Szewczyk v. City of New York, et al., No. 1:15-cv-02468, order (S.D.N.Y., Sep. 9, 2016). The plaintiff had been unemployed for about four years when she applied for an Assistant Civil Engineer position with the defendant. She had worked in engineering jobs before, but the defendant’s job listing allegedly stated that “only candidates who are permanent in the title of Assistant Civil Engineer should apply.” Id. at 2.

Norwegian flight attendantBusinesses have a duty to protect their customers from dangerous conditions, and they may be liable for damages under a theory of negligence or premises liability. Employers have a duty to protect their employees from certain dangers. These duties sometimes overlap. They could complement one another, as when a business must protect both its customers and its employees from a shared risk. At other times, an employer may have a duty to protect its employees from sexual harassment and other acts by certain customers. This type of situation may arise in any business where employees interact with the general public, but airlines present a particular risk, considering the confined space of an airplane and the duration of many flights. Recent reports on the issue of both sexual harassment and sexual assault on airplanes demonstrate the complicated legal issues that can be involved.

For airline employees, such as flight attendants, an airplane is a workplace, subject to the same laws and regulations as an office, restaurant, store, or other place of business. The fact that an airplane is mobile, meaning that the exact location where an alleged unlawful act occurred might be difficult to determine, does not prevent aggrieved employees from asserting their legal rights. Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and other discriminatory acts in the workplace, applies throughout the nation. It may also apply on airplanes owned and operated by American companies, even if they are traveling internationally. Under Title VII, an employer may be liable for sexual harassment of an employee by a supervisor or manager. It can also be liable for sexual harassment by a coworker or customer, if it knows or should know about the harassment and fails to take remedial action.

Media reports illustrate incidents of sexual harassment and assault on airplanes on a fairly regular basis. These stories are often presented as further examples of uncomfortable and difficult conditions on airplanes, but they have their own distinct importance, in a legal sense, for airline employees. In one example from late 2016, an airline ejected a passenger from a flight, before takeoff, for allegedly catcalling a flight attendant during the safety demonstration. For every story like this one, it is unfortunately likely that many more go unreported.
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gender equalityThe rights of transgender people have been the subject of multiple victories and setbacks in the past few years. With regard to protections against employment discrimination, New York City law expressly includes gender identity and gender expression as protected categories, as do laws in many other cities and states. At the federal level, however, Title VII of the Civil Rights Act of 1964 does not specifically mention gender identity or gender expression. Many advocates for transgender rights argue that certain judicial interpretations of Title VII’s prohibition on sex discrimination apply its protections to both sexual orientation and gender identity and expression. This argument has had some success at the federal appellate level with regard to sexual orientation. The Equal Employment Opportunity Commission (EEOC) has adopted this view for both types of discrimination. At least one case currently pending in a Circuit Court of Appeals is making a similar argument about the applicability of Title VII to gender identity and gender expression.

Justice William Brennan interpreted Title VII as a clear statement by Congress “that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The plaintiff in that case claimed that she was denied partnership because she failed to conform to common stereotypes about how women should behave. The evidence included a statement by a partner advising her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The court held that this sort of “sex stereotyping” was an unlawful form of sex discrimination under Title VII.

Many advocates and judicial opinions have noted the resemblance of sexual orientation discrimination to the type of “sex stereotyping” addressed in Price Waterhouse. Gay and lesbian employees, the argument goes, do not fit the stereotype of whom individuals should love. Some courts have expressed sympathy for this argument, while also stating that their hands are tied without further action by Congress. See, e.g. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001). Although it has yet to receive much judicial scrutiny, the applicability of the “sex stereotyping” argument to gender identity and expression is not hard to see.

pregnancyDiscrimination in employment on the basis of pregnancy, childbirth, and medical conditions related to either is unlawful under federal law and most state anti-discrimination laws. Unfortunately, many of these laws do not protect pregnant employees and employees who have recently given birth from other issues that may arise in the workplace. Fewer than half of the states in the U.S. require employers to make reasonable accommodations for pregnancy and related conditions, such as extra bathroom breaks, adequate seating, or a private area to allow employees to pump breast milk. New York is one of those states, but the failure of a proposed bill in another state, which would have enacted similar protections, shows that there is still much work to do nationwide.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits pregnancy discrimination across the country. This means that an employer cannot fire or refuse to hire an individual solely on the basis of the above factors, nor may they require a pregnant employee to take unpaid leave or reduce their work hours without a valid reason directly related to a particular employee’s job duties. At the state level, the New York State Human Rights Law (NYSHRL) also prohibits pregnancy discrimination, as does the New York City Human Rights Law (NYCHRL).

Federal law contains no express provisions requiring reasonable accommodations for pregnant workers or those who have recently given birth. Some, but far from all, conditions related to pregnancy and childbirth may fall under the Americans with Disabilities Act. Many state laws regarding disability discrimination may also cover some pregnancy-related conditions. At least 18 states and the District of Columbia have enacted laws specifically requiring reasonable accommodations in the context of pregnancy and childbirth.

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franchiseEmployment anti-discrimination statutes, such as the New York City Human Rights Law or Title VII of the Civil Rights Act of 1964, allow workers to assert claims against their employers for certain unlawful actions. Determining an employee-employer relationship, however, is not always easy. In situations in which more than one business might play a role in a worker’s employment, courts have developed the concept of a “joint employer.” A recent series of sexual harassment complaints against a major restaurant chain could require a joint employer analysis.

Discrimination in employment on the basis of sex is prohibited under city, state, and federal laws. The definition of “sex discrimination” has expanded over the years, through both court decisions and legislation, to include practices like sexual harassment and pregnancy discrimination. In a typical sexual harassment claim, a plaintiff must demonstrate that an employer is either directly liable due to actions against the plaintiff by a manager or supervisor, or liable for failing to address harassment by a co-worker of the plaintiff, about which it knew or should have known. Before that analysis even begins, however, a plaintiff must establish that an employment relationship exists.

A worker may receive a paycheck from one company but work at a different company’s site because of a contract between the two companies. When one company handles payroll, but another company directs the employee’s daily work, which one is the “employer?” Another common example of this problem involves franchised businesses. An individual might appear to be employed by a company that operates a national chain of stores or restaurants, but their employer is actually a local company operating under a franchise agreement with a larger company. The local business, or franchisee, would be the employer on paper, but the larger company, or franchisor, might still exercise considerable control over the conditions of employment.

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jewelerSexual harassment continues to be a significant problem in workplaces all over the country. Laws at nearly every level protect employees against sexual harassment and related practices, and the need for these protections is evident every day. A class action first filed over a decade ago demonstrates just how widespread and pervasive the problem is and how complicated its legal remedies can be. The case began in 2006, when over a dozen current and former employees of a major jewelry retailer complained of sex discrimination, including sexual harassment. This led to an ongoing proceeding before the American Arbitration Association (AAA) and a federal lawsuit. Jock, et al. v. Sterling Jewelers, Inc., No. 11-160-00655-08, 1st am. complaint (AAA, Jun. 26, 2008); No. 2:08-cv-02875, am. complaint (S.D.N.Y., Dec. 30, 2009). The arbitrator granted class certification in 2015, and as of early 2017, the class had about 69,000 members. The case was back in the news recently, when lawyers for the plaintiffs obtained permission to release sworn statements by their clients to the media.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of several factors, including sex. The U.S. Supreme Court has held that sexual harassment constitutes sex discrimination in violation of Title VII. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Sexual harassment may be the subject of a class action complaint if the plaintiffs and their claims meet the criteria, including numerosity of complainants and commonality of claims and defenses. See Jenson v. Eveleth Taconite Co., 824 F.Supp. 847 (D. Minn. 1993).

Federal, state, and local employment statutes authorize civil lawsuits against employers for discriminatory practices, including sexual harassment. Many employers require their employees to sign contracts with arbitration clauses, however, which potentially keep them from seeking relief in a court of law. Arbitration is a method of alternative dispute resolution that resembles a civil lawsuit. A neutral arbitrator, who often has experience as a judge, reviews the allegations and evidence from both sides and may conduct hearings. Whether the parties are bound by an arbitrator’s decisions, and the extent to which a court may intervene in or overrule the arbitration, depends in large part on the terms of the employment contract.

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CaregiverIn 2016, New York City amended its anti-discrimination statute to prohibit discrimination in employment based on caregiver duties. Several state and federal employment laws address discrimination on the basis of certain caregiving responsibilities, but New York City’s law covers a much wider range of people. Few, if any, cases interpreting this law have made their way through the courts in the last year. A look at a few New York court decisions that pre-date the new law, however, can provide an idea of where legal protection for caregivers was needed.

The New York City Human Rights Law (NYCHRL) protects employees from discrimination on the basis of “caregiver status.” N.Y.C. Admin. Code § 8-107(1)(a). It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102(30)(a). A “care recipient” is either a “covered relative” or someone living with the caregiver, who has a disability and “relies on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). Finally, a “covered relative” could be a child, spouse or partner, sibling, parent, grandparent, grandchild, or mother- or father-in-law. Id. at § 8-102(30)(c).

A “caregiver,” under the NYCHRL, may therefore include not only parents but also people caring for a sick or disabled parent or other relative, regardless of sex or gender. This is an important feature of the statute, since caregiver discrimination has often had a close relation to discrimination on the basis of sex. A New York City federal court ruled on a class action alleging caregiver discrimination under anti-discrimination and equal pay statutes in Kassman v. KPMG, LLP, 925 F.Supp.2d 453 (S.D.N.Y. 2013). The plaintiffs alleged multiple discriminatory practices, including “treating pregnant employees and mothers differently from non-pregnant employees, male employees, and non-caregivers.” Id. at 460. Unfortunately, the court dismissed several of the claims, finding that “caregiver…discrimination [is] not actionable under” state and federal equal pay laws. Id. at 473.

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restaurantSexual harassment in the workplace is a widespread problem throughout the country. Certain types of workplaces seem more prone to sexual harassment than others, but it can be a problem anywhere. A 2016 report by the Equal Employment Opportunity Commission (EEOC) addressed risk factors for workplace harassment and found that restaurants presented a particularly high risk. A lawsuit filed earlier this year contains allegations that demonstrate many of these risk factors. Baker v. Olive Garden, et al., No. 2:17-cv-00392, complaint (E.D.N.Y., Jan. 25, 2017). It also demonstrates another increasingly common feature of employment disputes—the use of alternative dispute resolution (ADR) procedures. The plaintiff voluntarily dismissed the case several weeks after filing it in order to pursue arbitration of the matter.

Most anti-discrimination laws view sexual harassment as a form of unlawful discrimination on the basis of sex. Quid pro quo sexual harassment involves requests or demands for sexual activity or contact in some form as a condition of employment—including getting a job, keeping a job, and various features of employment. The conduct does not need to be this blatant, however. A violation of law also occurs when sexual remarks or overtures—ranging from inappropriate comments or jokes to direct sexual overtures to outright assault—create a hostile work environment.

The EEOC report mentioned earlier identifies risk factors for workplace harassment. These include reliance on customer service, disparities in power among employees, a prevalence of younger employees, and the presence of alcohol. In a restaurant, servers and other employees depend on customers for tips. They may not be able to object to harassment by a customer, or by a supervisor with the power to assign work shifts. Supervisors have considerable power over servers’ schedules and assignments, and many restaurant employees are on the younger side. Many restaurants serve alcohol and might even encourage drinking on the job by some employees. Left unchecked, individual acts of harassment can create a hostile work environment.

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fingerprintNew York City is leading much of the nation in providing protection for workers against discrimination on the basis of criminal history, but federal law offers some protection as well. These protections are important for helping people reintegrate into society—particularly by finding jobs—once they have paid their debt to society. The federal Fair Credit Reporting Act (FCRA) protects job applicants’ privacy with regard to background checks by employers. While the FCRA does not limit employers’ ability to consider information obtained in a background check, it requires them to notify an applicant of an adverse decision based on a consumer report and to allow the applicant an opportunity to correct any inaccurate or incomplete information. The Federal Trade Commission (FTC) recently offered guidance to employers about their obligations under the FCRA, which prospective employees might also find useful.

The New York City Human Rights Law (NYCHRL) requires employers to follow specific procedures during the hiring process with regard to an applicant’s prior convictions. An employer may not inquire about criminal history until it has made a conditional offer of employment, and then it must follow various disclosure requirements if it makes an adverse decision because of an applicant’s criminal history. See N.Y.C. Admin. Code § 8-107(10), N.Y. Corr. L. § 750 et seq.

Under the FCRA, a “consumer report” is a collection of information about an individual that relates not only to factors like their credit history but also to their “character, general reputation, [or], personal characteristics.” 15 U.S.C. § 1681a(d). This can include criminal convictions, charges that did not lead to convictions, and arrests that did not lead to charges. The FCRA requires consumer reporting agencies, which compile and distribute consumer reports, to correct inaccurate information. It also imposes restrictions and obligations on people and businesses that request consumer reports, including employers.

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