vintage filmThe film industry might call Los Angeles home, but New York City is home to countless television and film productions, actors and actresses, producers, directors, and production workers. In late 2017, allegations of sexual harassment against a prominent Hollywood producer helped launch the #MeToo and Time’s Up movements, which aim to highlight the problem of sexual harassment in entertainment. Both actresses and actors, as well as others employed in film and television, have come forward with allegations of sexual harassment by famous actors, directors, and producers. Some of these allegations may fall under New York City sexual harassment law, provided that they involve an employer-employee relationship. Not all incidents of alleged sexual harassment in entertainment meet this requirement, however, and the same could be said for many workplace settings. Lawsuits and other claims involving alleged sexual harassment in entertainment demonstrate alternative ways of pursuing justice through the courts.

Laws like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law prohibit sex discrimination in hiring, firing, and the terms and conditions of employment. Courts have held that sexual harassment is a form of unlawful sex discrimination when employment is conditional on sexual activity of some sort, or when inappropriate sexual conduct is pervasive enough to create a hostile work environment.

The “casting couch,” which signifies some directors’ and producers’ demands for sexual activity with actresses and actors in exchange for roles, is a Hollywood cliché that remains a pervasive problem. Beyond alleged demands for sexual favors behind closed doors, a recent Washington Post article discusses how young actresses trying to start their careers are pressured into doing nude scenes. It cites research showing that, in the 100 top-grossing films released in 2016, just over one quarter of “speaking or named female characters” appeared either nude or “heavily exposed,” compared to less than 10 percent of male characters.

businessmanLooking for a job is rarely an easy or enjoyable process, but it can grow more difficult the longer a person is without work. When a job applicant’s resume indicates that they are out of work, some employers are inclined to reject them on that basis. New York City and other jurisdictions have enacted laws to limit or prohibit this practice. The New York City Human Rights Law (NYCHRL) has included provisions addressing this issue since 2013, including the right to file a private cause of action. Few courts have directly addressed claims under this statute so far, and most recent court decisions deal with jurisdictional questions, without getting to the alleged discrimination itself. Since the New York City employment statute dealing with unemployment discrimination is only effective at the city level, state court has the clearest jurisdiction. Filing a New York unemployment discrimination claim in federal court is not impossible, but it can be more difficult.

The NYCHRL defines “unemployed” as “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102(27). Employers may not discriminate against job applicants because of unemployment, nor may they advertise or otherwise state publicly that a position is only open to someone who is currently employed. Id. at § 8-107(21)(a). This law does not prohibit employers from “inquiring into the circumstances” regarding why an applicant lost an earlier job. Id. at § 8-107(b)(1). The prohibition on discrimination does not apply if an employer has “a substantially job-related reason for” treating an unemployed applicant differently. Id.

A plaintiff filing suit in federal court must establish that the federal court system has “subject matter jurisdiction” over their claims. The two main ways that federal courts can exercise subject jurisdiction are in cases that involve claims arising under federal law, known as “federal question” jurisdiction; and “diversity” cases in which the plaintiff and the defendant are from different states, and the amount-in-controversy is at least $75,000. 28 U.S.C. §§ 1331, 1332.

arrows-feedback-dialogue-about-796133Pregnancy discrimination in employment violates New York City’s antidiscrimination law, New York state law, and federal law. This means that employers commit an unlawful employment practice when they refuse to hire someone, fire them, force them to take unpaid leave, deny them promotions or other opportunities, or subject them to other disparate treatment because they are pregnant, have recently given birth, or are dealing with a medical condition related to either pregnancy or childbirth. These antidiscrimination laws also, to greatly varying degrees, require employers to make “reasonable accommodations” related to pregnancy and childbirth. These might include extra bathroom breaks, lifting restrictions, and opportunities to pump breast milk during breaks. A new law passed by the New York City Council, Int. No. 804-2015-A, will further protect workers’ rights by requiring employers to engage in “cooperative dialogue” with any employee who requests an accommodation because of pregnancy, childbirth, and other conditions or situations. The law is set to take effect in October 2018.

Federal law prohibits employment discrimination because of sex and multiple other factors, and includes “pregnancy, childbirth, or related medical conditions” in its definition of “because of sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). State law includes sex and “familial status” as protected categories, and defines “familial status” to include being pregnant and having one or more children. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). The New York City Human Rights Law (NYCHRL) does not specifically identify pregnancy discrimination as a distinct protected category or as a form of sex discrimination, but it makes reference to “provision[s] of law relating to sex discrimination or pregnancy.” N.Y.C. Admin. Code § 8-107(22)(c).

Prohibitions against pregnancy discrimination, generally meaning disparate treatment of pregnant employees and those who have recently given birth, do not necessarily include a duty to provide reasonable accommodations. The fact that an employer cannot fire an employee for becoming pregnant might not mean that the employer must allow that employee extra restroom breaks. State and city law in New York City specifically include requirements for reasonable accommodations, making it an unlawful employment practice to refuse to provide accommodations that will enable an employee to do their job. N.Y. Exec. L. § 296(3), N.Y.C. Admin. Code § 8-107(22)(a). Federal law does not specifically mention accommodations for pregnancy, childbirth, or related conditions, but the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act of 2008, covers some conditions associated with pregnancy and childbirth.
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pregnant womanAnti-discrimination laws in New York and around the country prohibit discrimination because of pregnancy, childbirth, and conditions directly related to either. The laws that address discrimination, such as Title VII of the Civil Rights Act of 1964, do not necessarily require employers to provide that person with reasonable accommodations, such as light duty, more frequent restroom breaks, or the opportunity to pump breast milk. Both the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) address reasonable accommodations, but many state and local statutes do not. The Americans with Disabilities Act (ADA) of 1990, as amended about 10 years ago, requires accommodations for some conditions related to pregnancy and childbirth. The plaintiffs in a Kentucky pregnancy discrimination lawsuit, which resulted in a settlement several years ago, are now advocating for changes in their state’s law regarding accommodations for pregnant employees, which would then more closely resemble New York pregnancy discrimination laws.

Title VII, as amended by the Pregnancy Discrimination Act of 1978, prohibits employment discrimination on the basis of sex, and it includes “pregnancy, childbirth, or related medical conditions” in its definition of “on the basis of sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). It makes no mention of reasonable accommodations. Both the NYSHRL and NYCHRL state that an employer commits an “unlawful employment practice” by failing to provide a reasonable accommodation. N.Y. Exec. L. § 296(3), N.Y.C. Admin. Code § 8-107(22). The NYSHRL defines a “reasonable accommodation” as something that allows an employee “to perform in a reasonable manner the activities involved in the job.” N.Y. Exec. L. § 292.

Title I of the ADA does not specifically identify pregnancy as a “disability.” Changes to the law in the ADA Amendments Act (ADAAA) of 2008 have led the Equal Employment Opportunity Commission (EEOC) to determine that pregnant workers may be entitled to reasonable accommodations under the ADA. The agency has also found that the ADAAA requires it to construe “the definition of ‘disability’…broadly in favor of expansive coverage.” 29 C.F.R. § 1630.1(c)(4).

Appetizer at Applebee'sServers in restaurants are in a particular position of vulnerability to unlawful employment practices like sexual harassment. New York City, with its abundance of restaurants, offers countless examples, but it is a nationwide problem. Job positions for servers can be very competitive, and supervisors have considerable discretion regarding shift assignments. Furthermore, most servers are dependent on tips for their income. This places many servers in a position in which they could face harassment not only from supervisors and managers, but also from customers. A server may hesitate to speak out about harassment by a customer for fear of losing tips, and they may fear speaking out against their employer for fear of losing shift assignments or their job. A lawsuit filed last year by the Equal Employment Opportunity Commission (EEOC) offers an example of the sort of environment that servers face throughout the country. EEOC v. New Apple, Inc., No. 4:17-cv-01150, 2nd am. complaint (D.S.C., Dec. 14, 2017).

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of multiple factors, including sex. Through amendments to the statute and Supreme Court decisions, the definition of sex discrimination has expanded since 1964 to include pregnancy discrimination and sexual harassment. The courts have identified two broad categories of sexual harassment. Quid pro quo sexual harassment occurs when a supervisor or manager demands sexual activity in some form as a condition of employment, such as when a restaurant manager demands sexual favors from a server in exchange for the most lucrative shift assignments. A hostile work environment occurs when a general environment of unwelcome and inappropriate conduct of a sexual nature interferes with the server’s ability to do their job.

The EEOC is charged with investigating alleged Title VII violations. Claims of sexual harassment and other forms of discrimination under Title VII usually begin with a complaint filed with the EEOC. If, once the EEOC completes its investigation, it finds a reasonable basis to conclude that unlawful employment practices occurred, it may try to resolve the matter with the employer without litigation. It files suit directly against employers in some cases, or else it provides the complainant with a “right to sue” letter that authorizes them to file suit themselves in federal court.
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road signsThe New York City criminal conviction discrimination law strictly limits employers’ ability to consider criminal history in employment decisions. The Fair Chance Act (FCA), which amended the New York City Human Rights Law (NYCHRL), is known as a “Ban the Box” law. States and cities all over the country have enacted BTB laws, so named because of their prohibition on inquiries about criminal history on job applications, often in the form of a check box. At the federal level, the Fair Credit Reporting Act (FCRA) regulates the use of consumer credit information, which can include criminal history. A pair of putative class actions are alleging criminal history discrimination against two New York City event centers under city and federal laws. Millien, et al. v. The Madison Square Garden Co., et al., No. 1:17-cv-04000, 1st am. complaint (S.D.N.Y., Jul. 14, 2017); Kelly v. Brooklyn Events Ctr., LLC, et al., No. 1:17-cv-04600, complaint (E.D.N.Y., Aug. 4, 2017).

The NYCHRL, as amended by the FCA, prohibits New York City employers from discriminating against job applicants based solely on “an arrest or criminal accusation.” N.Y.C. Admin. Code § 8-107(11), N.Y. Exec. L. § 296(16). Employers may not ask about criminal history at all until they have “extended a conditional offer of employment to the applicant.” N.Y.C. Admin. Code § 8-107(11-a)(a)(3). They must follow guidelines established by state law when assessing an applicant’s criminal history, such as the length of time since the offense, the applicant’s age at the time, and the extent to which the offense might affect their “fitness or ability to perform one or more…duties or responsibilities.” N.Y. Corr. L. § 753(1)(c), N.Y.C. Admin. Code § 8-107(11-a)(b)(ii). If an employer makes an adverse decision based on criminal history, it must notify the applicant and give them an opportunity to respond.

The FCRA regulates the collection, dissemination, and use of “consumer reports,” defined to include information compiled by a consumer reporting agency in exchange for compensation, which may include information on an individual’s “character, general reputation, personal characteristics, or mode of living,” and which is intended for use in employment decisions. 15 U.S.C. § 1681a(d)(1)(B). This may include criminal records. Employers must obtain a job applicant’s consent to procure a consumer report and provide them with a disclosure of their FCRA rights. Id. at § 1681b(b)(2). Much like the FCA, the FCRA requires employers to notify applicants of adverse decisions based on criminal history and to allow time for a response. Id. at § 1681b(b)(3).

cityscapeThe New York City Human Rights Law (NYCHRL) is among the most comprehensive anti-discrimination statutes in the country, protecting employees and job applicants against discrimination, harassment, and retaliation on the basis of a wide range of factors. Much like state and federal employment statutes, New York City’s employment law treats sexual harassment as a form of unlawful sex discrimination. City law differs, however, in its requirements for establishing a hostile work environment. Some lawmakers worry that the statutes in their jurisdictions impose too great a burden on employees alleging sexual harassment in the form of a hostile work environment, and they are looking to the NYCHRL for new ideas. In January 2018, a California state senator held a public hearing on the “severe or pervasive” standard in hostile work environment claims. The hearing included testimony by the New York City Human Rights Commissioner.

Under California law, a plaintiff alleging a hostile work environment must establish that the alleged harassment was “pervasive or severe.” Cal. Civ. Code § 51.9(a)(2). The U.S. Supreme Court has held that a hostile work environment constitutes unlawful sex discrimination under federal law when the harassing behavior is “severe or pervasive enough to create…an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). California courts have adopted this standard for sexual harassment claims under state law. Lyle v. Warner Bros. Television Productions, 42 Cal.Rptr.3d 2, 12 (2006). The California Supreme Court has identified “[c]ommon sense, and an appropriate sensibility to social context” as a guide in determining whether conduct is sufficiently “severe.” Id. at 16. To meet the “pervasive” requirement, a plaintiff “must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” Id.

The “severe or pervasive” standard has been criticized for overlooking all but the worst instances of workplace harassment. According to one New York appellate court, it has “routinely barred the courthouse door to women who have, in fact, been treated less well than men because of gender.” Williams v New York City Hous. Auth., 61 A.D.3d 62, 73 (N.Y. App., 1st Div. 2009). Judicial interpretations of the NYCHRL therefore do not “simply mimic[] its federal and state counterparts.” Id. at 74. Based on findings that the “severe or pervasive” standard “unduly narrows the reach of the law,” the NYCHRL requires a plaintiff claiming a hostile work environment to prove “that she has been treated less well than other employees because of her gender.” Id. at 78.

birdPhillips & Associates is expanding into Long Island with the opening of a new office location in Manhasset. This location on Long Island’s North Shore will enable us to help workers in Nassau and Suffolk Counties assert their rights under federal and state laws against discrimination, harassment, and other unlawful practices. New York anti-discrimination law provides powerful protections for workers. Our Manhasset office will work alongside our locations in Manhattan and Princeton, New Jersey in helping aggrieved employees and job applicants seek justice.

Workers on Long Island are protected from workplace discrimination and harassment by Title VII of the federal Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL). Title VII identifies five protected categories:  sex, race, color, religion, and national origin. The statute considers both sexual harassment and pregnancy discrimination to be discrimination on the basis of sex. The NYSHRL includes additional protected categories, such as sexual orientation, family or marital status, and domestic violence victim status. These laws prohibit employers from refusing to hire, firing, demoting, or otherwise making adverse employment decisions about an employee or job applicant solely because of their membership in a protected category.

Leading the new office will be Phillips & Associates partner Marjorie Mesidor, a tireless advocate for people who have experienced sexual harassment or discrimination on the basis of factors like sex, race, and disability. She obtained a unanimous jury verdict in a landmark 2013 case, Johnson v. Strive, which established that people of the same race can discriminate against one another in violation of state and federal laws. Joining Ms. Mesidor will be Joshua P. Frank, an employment attorney with a commitment to protecting people’s right to equal opportunities in the workplace.

protestNew York City gender discrimination laws prohibit discrimination on the basis of gender identity and gender expression, but protections at the federal level for transgender and gender-nonconforming workers are far less certain. The United States Armed Forces, which are subject to their own separate set of laws, allowed overt discrimination on the basis of both sexual orientation and gender identity until quite recently. A memorandum issued by the White House in August 2017, however, bluntly directed the Department of Defense (DOD) and the Department of Homeland Security (DHS) to reinstitute the prior policy of excluding transgender individuals from military service. Lawsuits soon followed, and after two judges ruled in the plaintiffs’ favor against the ban on transgender soldiers, the Department of Justice (DOJ) stated that it would not appeal the decisions. The DOD later announced that transgender individuals could begin enlisting again on January 1, 2018.

In 1993, Congress enacted the “Don’t Ask Don’t Tell” (DADT) policy, previously found at 10 U.S.C. § 654. A servicemember could be removed from service under this policy if they engaged in or solicited “a homosexual act or acts”; if they stated that they were “a homosexual or bisexual, or words to that effect”; or if they “married or attempted to marry” someone of their “same biological sex.” 10 U.S.C. § 654(b). Congress repealed DADT in 2010. The DOD began the process of lifting restrictions on transgender servicemembers in July 2015, and it officially lifted the ban in June 2016.

A new administration moved into the White House in January 2017 and quickly began reversing policies enacted by the prior administration relating to gender identity and gender expression. The memorandum reversing the policy on transgender servicemembers, issued on August 25, 2017, asserted that the DOD had failed to conduct a sufficient review of potential negative effects. It directed the DOD and DHS to cease all activities relating to compliance with the revised policy—with specific mention of “sex-reassignment surgical procedures for military personnel”—and to return to the policy in effect prior to June 2016. The memorandum would have been controversial on its own terms, but the president’s use of Twitter to announce the ban added to the controversy.

New York City boasts one of the broadest employment discrimination laws in the nation. Indeed, over the past few years, New York City has offered protection to many classes of employees and job applicants who have not enjoyed protection in the past. One of the lesser known groups of people who are protected under New York anti-discrimination law are caregivers.

WheelchairOver the past few decades, lawmakers have heard from countless employees and job applicants who have suffered various forms of adverse employment actions based on the fact that they care for a child or sick loved one at home. Historically, employers have been able to discriminate against caregivers by refusing to hire those who have these responsibilities and even fire employees once the need to provide care arises. However, with the passage of a 2015 rule, employees and applicants can no longer be subjected to New York caregiver discrimination.

What Constitutes a Caregiver?

The New York Commission on Human Rights defines a caregiver as anyone who has a biological or adopted child under the age of 18, or someone who provides ongoing care to a parent, sibling, spouse, child, grandparent, or grandchild with a disability. The law applies to all employment agencies as well as employers that have four or more employees. The law also applies to full-time, part-time, and intern positions. Even someone who is characterized as an “independent contractor” may be covered.

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