Library of CongressThe terms “gender identity” and “gender expression,” in the context of New York City gender identity discrimination law, encompass a spectrum of factors related to gender and self-image. New York City has included these factors in its employment discrimination law since 2002. A federal court did not find in favor of a gender identity discrimination claim until 2008. The landmark decision in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), is worth revisiting.

“Gender identity” refers to a person’s sense of their own gender, whether or not it matches their biological sex. “Gender expression” consists of how a person presents their gender, such as through their name, clothing, and behavior. A transgender person is someone who identifies as a different gender than the biological sex assigned to them at birth, and who might express themselves in accordance with that gender identity. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a)(1). A U.S. Supreme Court ruling recognizing “sex stereotyping” as a form of sex discrimination under Title VII, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), has led some courts and administrative agencies to extend Title VII protections to gender identity and gender expression claims.

The plaintiff in Schroer was a transgender woman who transitioned to a female gender identity and expression as an adult. Prior to her transition, she served in the U.S. Armed Forces for 25 years, retiring in January 2004 with the rank of colonel. She held a very high-level security clearance at the time of her retirement, due to her anti-terrorism work with the U.S. Special Operations Command.

Department of JusticeThe past year has brought considerable uncertainty in many aspects of employment discrimination law, as the new administration in the White House rolls back measures enacted by the previous administration. Protections against gender identity discrimination under federal statutes like Title VII of the Civil Rights Act of 1964 have received particular attention. The statute prohibits employment discrimination on the basis of sex and other factors. New York City employment discrimination law expressly includes gender identity and expression. At the federal level, however, the protection is based largely on inferences from the statutory text. The Equal Employment Opportunity Commission (EEOC) has ruled that Title VII’s prohibition on sex discrimination encompasses discrimination based on gender identity and gender expression, but the Department of Justice (DOJ) now takes the opposite position. A memorandum issued by the Attorney General (AG) in October 2017 overrules a 2014 memorandum from the previous occupant of that office.

Title VII prohibits a range of discriminatory acts by employers against an employee “because of such individual’s…sex.” 42 U.S.C. § 2000e-2(a)(1). The EEOC has concluded that this includes “gender discrimination, and not just discrimination on the basis of biological sex.” Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The agency found that Title VII allows claims for “discrimination based on gender identity, change of sex, and/or transgender status.” Id. Laws at the state and municipal levels around the country include express provisions addressing these factors, often encompassed by the terms “gender,” “gender identity,” and “gender expression.” See, e.g., N.Y.C. Admin. Code § 8-102(23).

In December 2014, the DOJ issued a memorandum addressing gender identity claims under Title VII. The memorandum does not quite endorse the view that Title VII sex discrimination includes gender identity and expression. Instead, it states that the DOJ will not argue against allowing such claims under Title VII. The overall effect was probably about the same, if not as satisfying as a full endorsement. The memorandum discusses how past court rulings support the inclusion of gender identity and expression, noting the U.S. Supreme Court’s ruling on a claim of discrimination by “sex stereotyping” in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). After a federal court in Washington, D.C. ruled in favor of a worker’s gender identity discrimination claim, Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), several federal agencies began recognizing gender identity discrimination as sex discrimination.

Earlier this month, a federal appellate judge on the United States Court of Appeals for the Ninth Circuit retired amid allegations that he engaged in sexual harassment and unwelcome touching over the course of his 32 years on the bench. According to a recent report by the New York Times, at least 15 women have come forward to report that the judge sexually harassed them through unwanted sexual comments or physical contact, including kissing, hugging, and groping. These allegations are not unlike those in many New York sexual harassment cases.

Judge's GavelThe judge apologized to those whom his conduct affected. However, his comments following his sudden retirement fell short of acknowledging any inappropriate conduct, citing the fact that he has a “broad sense of humor and candid way of speaking.”

One woman who had served as a clerk for another judge on the Ninth Circuit came forward, telling reporters that the judge suggested she exercise naked. She explained that the power dynamics in the legal profession made it difficult for her to come forward with allegations against a sitting judge. Now a professor at a California law school, the former clerk told reporters that she owes it to the next generation of lawyers to create a better version of the legal profession.

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The New York State Human Rights Law protects many classes of people from various types of discrimination. One of the more unique aspects of New York’s anti-discrimination policy is the fact that it protects job applicants from being subject to discrimination based on their criminal history.

HandcuffsNew York has a general policy to “encourage the licensure and employment of persons previously convicted of one or more criminal offenses.” Thus, certain kinds of discrimination are prohibited by law. For example, someone cannot be subjected to discrimination based on an arrest record if that arrest did not result in a conviction. However, even in situations in which an applicant was convicted of a crime, the law may protect that applicant from discrimination as well.

New York discrimination law does not outright prohibit an employer from making a hiring decision based on an applicant’s criminal record. However, the employer must consult a list of considerations prior to doing so. For example, an employer should consider the following:

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help wanted signBoth the New York State and New York City anti-discrimination laws prohibit discrimination in employment on the basis of criminal history, offering protections not found in federal law. Last year, a federal appellate court sent several certified questions to the New York Court of Appeals in a New York criminal conviction discrimination case, asking it to clarify several points about the New York State Human Rights Law (NYSHRL). The answers provided by the New York court resulted in the federal court vacating a lower court order dismissing the plaintiffs’ claims.

The NYSHRL states that an employer commits an “unlawful employment practice” if they deny employment to a person because of a conviction for “one or more criminal offenses,” or because of “a finding of a lack of ‘good moral character’” based on a criminal conviction history, if doing so violates Article 23-A of the New York Corrections Law. N.Y. Exec. L. § 296(15). Article 23-A prohibits criminal history discrimination in employment unless an employer can show a “direct relationship” between a specific prior offense and the job in question, or “an unreasonable risk” to public safety or the safety of specific people or property. N.Y. Corr. L. § 752. The law identifies specific factors employers must consider when evaluating a person’s criminal history.

The plaintiffs in the case mentioned above were directly employed by a moving company, which had a contract to provide services to a shipping company. The shipping company maintained a policy that excluded individuals with certain felony convictions. The plaintiffs allege that this resulted in their termination by the moving company. They filed suit in federal court against the moving company, the shipping company, and the company that performed their criminal background checks, alleging that they violated the NYSHRL by failing to follow the procedures required by Article 23-A.

people-coffee-meeting-team-7096The past few months have seen proverbial dams burst with regard to sexual harassment allegations in places like Washington, D.C. and Hollywood. People—perhaps mostly, but not exclusively, women—who have long felt that coming forward would endanger their careers, or even their safety, finally feel that they can tell their stories. Months before the first allegations against Hollywood producers and Washington politicians began to dominate the news cycle, female entrepreneurs and tech workers in Silicon Valley, New York City, and elsewhere around the country were exposing cultures of sexual harassment in the startup world. The nature of the startup scene, however, presents certain legal challenges. Employment statutes prohibiting New York City sex discrimination and sexual harassment allow employees to file suit against their employers, but the relationship between startup founders and investors is not always that of employee and employer. In the absence of direct legal relief through anti-discrimination laws, entrepreneurs and investors are trying other methods to combat sexual harassment.

Laws like Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL) prohibit employment discrimination based on a person’s sex. Sexual harassment, which includes a range of unwelcome, sexually oriented behaviors, from bad jokes to outright assault, constitutes unlawful sex discrimination when it is severe enough to create a hostile work environment impeding an individual’s ability to do their job, or when an employer makes sexual activity a condition of employment.

In order to successfully assert a claim for sexual harassment under Title VII, the NYSHRL, or another statute, a plaintiff must demonstrate an employment relationship. This is not present in many encounters between entrepreneurs and investors. A common, and often defining, feature of a “startup” company is an inability to meet operating costs through business revenue. Many startups spend years developing a product or service before even expecting such revenue. Instead, they rely on funding from investors. Venture capitalists (VCs) provide funding to startup businesses in exchange for stock in the company, and they often place one or more people on the company’s board of directors. If a VC sexually harasses an entrepreneur prior to this part of the funding process, the entrepreneur may have no recourse under existing anti-discrimination laws.
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Over the past few months, the news headlines have been laden with allegations of sexual misconduct and abuse. It seems that no industry is immune to inappropriate sexual conduct in the workplace. And with the holiday season approaching, many employees and employers are going to be on their toes more than ever.

Christmas TreeTo many, the idea of a workplace holiday party brings to mind images of over-consuming professionals in a casual environment acting without due regard for the normal workplace mores. However, too often what is claimed to be “innocent fun” by one party to the conversation is neither innocent nor fun to the other. And it isn’t just employees who are concerned about unwanted sexual advances or misconduct; employers fear the legal liability and negative press that accompany New York sexual harassment at a holiday party.

According to a recent news article, due to the current climate of rampant sexual misconduct, many employers are rethinking the way they plan their holiday parties in hopes of curbing any sexual misconduct that may occur. The biggest difference seems to be whether the company will provide alcohol and, if so, how much is provided.

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Workplace bullying is a pervasive problem, with one study finding that nearly three-fourths of surveyed employees had experienced bullying in their jobs. Legal protections are often only available to the extent that workplace bullying also constitutes discrimination or harassment on the basis of a protected category, which includes sexual harassment. New York City sexual harassment laws might then allow a cause of action. A story that appeared in news media earlier this year offers an example of alleged bullying—specifically, efforts to shame a coworker after she reported alleged sexual harassment by a supervisor—that might have supported a claim for sexual harassment. This particular case, however, appears to have been resolved without litigation.

person-homeless-bullied-hiding-1821412The Workplace Bullying Institute (WBI) defines the term to include verbal abuse, interference with a person’s work, and other acts aimed at “threatening, humiliating, or intimidating” someone. “Bullying” is not a legal term, but it might meet the legal definition of sexual harassment if it is primarily based on a person’s sex, and it creates a hostile work environment that interferes with that person’s ability to perform their work responsibilities.

While not using the actual word “bullying,” several landmark decisions from the U.S. Supreme Court demonstrate the close connection between bullying and sexual harassment. The court first recognized sexual harassment as an actionable form of sex discrimination in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The court held that unlawful sexual harassment occurs when the harassing behavior is “severe or pervasive” enough “to alter the conditions of…employment and create an abusive working environment.” Id. at 67. Several years later, the court clarified that a plaintiff does not have to show that the hostile work environment was severe enough “to cause a tangible psychological injury.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). A plaintiff must show both that they “subjectively perceive the environment to be abusive” and that “a reasonable person would find [it] hostile or abusive.” Id.

blue rosesSexual harassment in the workplace can take many forms, from inappropriate comments to sexual assault. When alleged sexual harassment involves alleged assault, a claimant might be able to assert both statutory and common-law causes of action. This potentially raises questions about preemption. Disputes between employees and employers tend to fall under the purview of employment statutes like the New York State Human Rights Law (NYSHRL), while tort claims like assault are based on common law. The Texas Supreme Court ruled earlier this year that the state’s employment statute does not preempt an employee’s tort claim alleging sexual assault by a supervisor when “the gravamen of a plaintiff’s claim is not harassment, but rather assault.” BC v. Steak N Shake Operations, Inc., No. 15-0404, slip op. at 1 (Tex. Sup. Ct., Feb. 24, 2017).

Multiple New York employment discrimination statutes prohibit discrimination by employers on the basis of sex. Sexual harassment is considered a type of sex discrimination when it involves a “quid pro quo” demand for sexual activity as a condition of employment, or when it creates a hostile work environment that prevents an employee from doing their job. Employers can be held strictly liable for sexual harassment by supervisors, managers, or executives. They may be liable for sexual harassment by coworkers when they knew or should have known about the harassment but failed to take reasonable steps to stop or prevent it. A single incident, if severe enough, could support a claim for quid pro quo sexual harassment or hostile work environment.

The plaintiff in BC worked at a restaurant owned and operated by the defendant in the Dallas, Texas area. She alleged in her lawsuit that a supervisor, who “had neither spoken nor acted in a sexually suggestive manner” before, sexually assaulted her during an overnight shift at the restaurant in October 2011. BC, slip op. at 2. She sued the defendant and the supervisor, asserting multiple tort claims, including assault, sexual assault, and battery.

applicationHere in New York State and New York City, the governments have a clear public policy that powerfully opposes discrimination in employment on a number of bases. These bases include, among other things, race, national origin, gender, religion, disability, age, sexual orientation, and gender identity. As of 2015, with the passage of the Fair Chance Act (FCA), another area of potential illegal discrimination is criminal history. Specifically, the act forbids many employers from inquiring about an applicant’s criminal background prior to making an offer of employment. If you think you’ve suffered from illegal discrimination based upon your criminal history, it is important that you act quickly and decisively, including retaining skilled New York criminal conviction discrimination counsel, since you may be entitled to payment as a result of your potential employer’s misconduct.

Displaying the city’s commitment to enforcing this new area of anti-discrimination protection, the city’s Human Rights Commission recently announced charges against roughly a dozen businesses that allegedly engaged in hiring practices that violated the FCA, according to a New York Daily News report. Under the rules established by the FCA, employers are not forbidden to make inquiries into the criminal backgrounds of job applicants. The act simply bars employers from engaging in such background checks unless the applicant is someone to whom the employer has made an offer of employment. This is designed to give all applicants an enhanced opportunity to compete on an equal footing. The act, then, banned the practice of asking about criminal history on an initial employment application, also known as “banning the box.” The FCA also bans employers from asking about criminal history in the course of a job interview.

Once the employer has made an offer of employment, the employer is legally permitted to investigate an applicant’s criminal past. Even then, the FCA imposes rules regarding the process of making an inquiry. The act says that, if the employer discovers criminal charges in an applicant’s history and decides to withdraw the job offer based upon that record, the employer must communicate this in writing to the applicant and give the applicant three days to respond.

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