Phillips & Associates
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Employment discrimination on the basis of sex, including sexual harassment, violates nearly every employment statute in the country. It persists in workplaces for a vast array of reasons. New York City sexual harassment attorneys often see examples that result from people’s inability — or refusal — to separate someone’s public persona from their inherent dignity as a person. People who work in the entertainment industry regularly experience this. Late last year, an emergency medical technician (EMT) with the New York City Fire Department (FDNY) settled a lawsuit against the city that involved allegations of sexual harassment based, in part, on her prior career in reality television. The city agreed to pay $350,000 to settle the suit.

Sexual harassment is considered unlawful sex discrimination under the New York City Human Rights Law (NYCHRL) and other statutes. An employer violates city law when it allows unwelcome sexual conduct in the workplace to become so severe or pervasive that it creates a hostile work environment. This usually involves ongoing patterns of behavior, but a single incident can support a hostile work environment claim if it is severe enough. In either case, the behavior must create enough of a disruption to the workplace that an objective observer would consider it unreasonably hostile. A situation where the claimant is a specific target is probably more likely to succeed as a hostile work environment claim, but targeting is not necessarily required.

The case against the FDNY involved allegedly targeted behavior. The plaintiff was a cast member on a reality television program, which was known for depicting people in a “party” lifestyle, in 2009 and 2010. She has made additional appearances in various shows since then. According to her complaint, she “decided to pursue her dream” of becoming an EMT in 2014, and began working for the FDNY as an EMT on Staten Island in 2016. She suffered an on-the-job injury in 2016 that kept her from working for almost a year. Another injury on the job in 2017 resulted in a restriction to “light duty” when she returned to work. This is when the alleged harassment began.
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New York City’s employment discrimination laws cover a wider range of protected categories than most similar laws around the country. The New York City Human Rights Law (NYCHRL) cover some gaps left in federal law, which protects against discrimination on the basis of a relatively small list of factors. A decision by a Manhattan federal judge in late 2020, for example, dismissed pregnancy discrimination claims under federal, state, and city law by a father who lost his job after taking paternity leave. It essentially held that he could not bring a claim for pregnancy discrimination because he was never pregnant. The court’s decision does not mention the NYCHRL’s provisions regarding caregiver discrimination, which could cover a father of a newborn.

The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act to include pregnancy discrimination in the definition of sex discrimination. See 42 U.S.C. § 2000e(k). In addition to pregnancy itself, Title VII prohibits discrimination due to childbirth and medical conditions related to either pregnancy or childbirth. The NYCHRL goes a step farther and requires employers to make reasonable accommodations for pregnant and nursing employees.

Federal law acknowledges the role of fathers, or any parent who did not gestate and give birth to a child, in the Family and Medical Leave Act (FMLA). This law requires covered employers to provide unpaid leave to qualifying employees for certain reasons, including caring for a newborn child. The U.S. Supreme Court noted that the statute addresses “mutually reinforcing stereotypes [that] created a self-fulfilling cycle of discrimination” on the basis of sex. Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003). Employers must provide leave regardless of gender, ensuring “that employers could not evade leave obligations simply by hiring men.” Id. at 737. The FMLA does not, however, address discrimination outside of the context of unpaid family leave.

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Employment discrimination on the basis of gender identity and gender expression violates both New York State and New York City laws. City and state laws addressing discrimination in education also prohibit this type of discrimination. As New York City employment discrimination attorneys, we have observed many similarities between discrimination in school programs and discrimination in the workplace. While the new administration in Washington DC is taking a much different approach to issues of gender identity and gender expression than its predecessor, it remains a controversial issue, especially with regard to school sports. Discrimination in school sports can keep students from having access to sports at all, which can have wide-ranging effects. New York City and New York State have taken an inclusive approach, unlike many jurisdictions around the country.

New York State’s employment antidiscrimination law expressly bars discrimination based on “gender identity or expression.” N.Y. Exec. L. § 296(1)(a). Its definition of this term includes a person’s actual “gender-related characteristic[s],” as well as characteristics perceived by others and attributed to a person, and includes both transgender and nonbinary statuses. Id. at § 292(35). New York City law prohibits gender discrimination in employment, which includes gender identity and gender expression “regardless of the sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102.

State law generally prohibits discrimination on the basis of sex in education programs, including allowing people to participate on “state public and high school athletic teams.” N.Y. Educ. L. § 3201-a. The statute does not specifically mention gender identity or gender expression, but it directs the state’s commissioner of education to establish further regulations on the matter. Athletics present a somewhat different issue than many other concerns regarding discrimination since they tend to be separated based on sex or gender.

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The gender gap in employment has received much attention in recent years, and with good reason. Despite advances in opportunities for people of all genders, many disparities still exist in terms of wages and job opportunities. Discrimination on the basis of gender identity and gender expression remains a serious problem. New York City workplace discrimination laws exist, in part, to give workers a way to push back against discriminatory acts by employers. Not all discrimination is intentional, though, and some workplaces seem more prone than others to unconscious biases. Last fall, the scientific journal Nature published accounts by LGBT+ individuals working in STEM fields (Science, Technology, Engineering, and Mathematics) describing their experiences.

Discrimination on the basis of gender identity and gender expression violates multiple employment statutes in New York City. State law specifically identifies gender identity and gender expression as protected categories. N.Y. Exec. L. § 296(1)(a). New York City’s antidiscrimination statute prohibits discrimination on the basis of gender, and its definition of the term includes actual and perceived gender identity or modes of expression. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

Federal law prohibits discrimination in employment and education on the basis of sex. See 42 U.S.C. § 2000e-2(a), 20 U.S.C. § 1681(a). While the definition of “sex” found in Title VII of the Civil Rights Act of 1964 has some nuance, Congress has never expressly included gender identity or sexual orientation in that definition. In 2020, however, the U.S. Supreme Court ruled that discrimination on the basis of either sexual orientation or gender identity is, in fact, discrimination based on a person’s sex in violation of Title VII. The ruling, Bostock v. Clayton County, only dealt with Title VII and employment discrimination, not Title IX’s provisions on sex discrimination in education. It is possible, however, that the court may extend the ruling to Title IX as well.

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New York City pregnancy discrimination laws offer some of the most extensive protections to workers in the whole country. Federal law classifies discrimination on the basis of pregnancy as a form of sex discrimination. State and city law goes further, requiring employers to make reasonable accommodations for pregnant employees and employees with newborn children. The New York City Human Rights Law (NYCHRL) goes further still, requiring employers to provide private, sterile lactation rooms where workers can express breast milk, along with facilities for storing milk while at work. A class action filed in a Brooklyn federal court alleges that the police department failed to provide lactation facilities for employees as required by law. The lawsuit was filed more than a year ago and is in the process of seeking class certification.

Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of pregnancy, childbirth, and related medical conditions in its definition of sex discrimination. The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of familial status, which includes pregnancy, childbirth, and parenthood. It also states that an employer commits an unlawful discriminatory practice when they fail to provide reasonable accommodations for an employee’s pregnancy-related conditions.

A law passed by the New York City Council several years ago added provisions to the NYCHRL regarding accommodations for new parents who are nursing. Employers must provide a “lactation room,” defined as “a sanitary place, other than a restroom,” that is “shielded from view and free from intrusion.” N.Y.C. Admin. Code § 8-102. The room must include a power outlet, a place to sit, and a surface to place a pump and other items. It must be located near a sink or water fountain, and “in reasonable proximity to [an] employee’s work area.” Id. at § 8-107(22)(b)(i).

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Workers in New York City are protected by multiple antidiscrimination statutes. New York City sexual harassment lawyers can choose from federal, state, and local laws when determining how best to advocate for their clients’ rights. This includes employment laws like the New York City Human Rights Law and education laws like Title IX of the Education Amendments of 1972. Individuals who have endured sexual harassment may also be able to assert common-law claims based on negligence. Employers have significant incentive to maintain policies on harassment prevention, along with robust methods of enforcement. A news story reported in late 2020 demonstrates how employers can use employment policies to address complaints of harassment against employees in supervisory positions. The story involves a now-former museum curator accused by a former student of sexual harassment and bullying.

Sexual harassment is considered to be a form of discrimination on the basis of sex in two types of situations. First, a supervisor or manager cannot make sexual requests or demands of an employee when refusal could adversely affect the employee’s job. The threat to the employee’s job could be explicit, such as when a manager openly expects sexual contact with an employee in exchange for favorable shift assignments. It can also be more subtle than this, as long as there is a clear causal connection between the refusal of the demands and adverse consequences.

The second type of unlawful sexual harassment occurs when pervasive or severe sexual conduct in the workplace interferes with an employee’s ability to perform their job duties and creates what an objective observer would consider a hostile work environment. An employer must know about the objectionable conduct, or they must be in a position where they should know about it. If they fail to take reasonable measures to address the problem, they could be liable to the aggrieved employee.

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Employment laws all over the country protect workers from discrimination based on pregnancy, childbirth, and medical conditions that may arise during pregnancy or after giving birth. New York City pregnancy discrimination attorneys can also use state and city law to demand reasonable accommodations for workers who might need extra restroom breaks, more time to sit down, restrictions on lifting large amounts of weight, and other needs. A 2014 law passed by the New York City Council added provisions regarding reasonable accommodations to the New York City Human Rights Law (NYCHRL). Unfortunately, many employers continue to deny such accommodations to their employees, sometimes with tragic consequences. A female employee of the Metropolitan Transportation Authority (MTA) sued her employer in 2020, alleging that the refusal to provide reasonable accommodations resulted in her miscarriage. The lawsuit is still pending, but the MTA has reportedly agreed to several new accommodations for pregnant workers.

At the state level, the New York State Human Rights Law (NYSHRL) prohibits employment discrimination based on “familial status,” which includes pregnancy. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). The NYCHRL addresses discrimination by employers because of employees’ “sexual and reproductive health decisions,” which may include the decision to have children. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

Both city and state law require reasonable accommodations during an employee’s pregnancy and after they give birth. The NYSHRL requires accommodations for “pregnancy-related conditions,” which refers to both conditions “that inhibit[] the exercise of a normal bodily function” and that are generally accepted to be part of pregnancy or childbirth. N.Y. Exec L. §§ 292(21-f), 296(3). The NYCHRL requires an employer to provide reasonable accommodations “that will allow the employee to perform the essential requisites of the job.” N.Y.C. Admin. Code § 8-107(22)(a).

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New York City pregnancy discrimination lawyers often hear from workers who were denied a job opportunity because they were pregnant, or who lost a job or found their hours cut back when they told their employer about their pregnancy. City, state, and federal laws prohibit a wide range of acts by employers that discriminate on the basis of pregnancy, childbirth, or medical conditions related to either. In New York City, employers must also provide reasonable accommodations for pregnant workers and workers who have given birth recently, including a clean and private lactation room on work premises. Many other employment discrimination laws do not require this of employers. In late 2020, the New York City Commission on Human Rights (CHR) published a new proposed rule interpreting and clarifying the city’s pregnancy discrimination laws.

Three antidiscrimination statutes cover New York City, and each one addresses pregnancy discrimination in a different way. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex, and defines “on the basis of sex” to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of “familial status,” using a definition that includes pregnancy. N.Y. Exec. L. §§ 292(26), 296(1)(a). State law also specifically bars employers from forcing a pregnant employee “to take a leave of absence” in many situations. Id. at § 296(1)(g).

The New York City Human Rights Law (NYCHRL) does not identify pregnancy as a distinct protected category, although a recent amendment to the law bars discrimination on the basis of “sexual and reproductive health decisions,” which could include pregnancy. See N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). Both the NYCHRL and the NYSHRL contain provisions for reasonable accommodations. State law requires accommodations for “pregnancy-related conditions,” similar to the way it requires accommodations for employees with disabilities. See N.Y. Exec. L. at §§ 292(21-f), 296(3). City law requires reasonable accommodations for “pregnancy, childbirth, or a related medical condition,” as well as “lactation accommodations.” N.Y.C. Admin. Code § 8-107(22).

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The COVID-19 pandemic has caused economic turmoil all over the country and the world. It has hurt restaurants more than many other kinds of businesses. The impact goes beyond the revenues of the restaurants themselves. Even without a pandemic, New York City sexual harassment lawyers see a substantial number of claims from workers in restaurants who rely on tips for much of their income. The problem seems only to have gotten worse when restaurants have been open this year. A report issued in early December by One Fair Wage (OFW), an organization that advocates for reform of wage laws affecting tipped employees, found substantial decreases in tips received by servers during the pandemic, along with an increase in incidents of sexual harassment. These two issues are closely related. Tipped workers’ reliance on tip income makes them particularly vulnerable to sexual harassment by supervisors, co-workers, and customers.

Laws like the New York City Human Rights Law, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964 view sexual harassment as a type of unlawful discrimination on the basis of sex. Sexual harassment can occur in two general forms, both of which are unfortunately common in the restaurant industry. Quid pro quo sexual harassment takes place when a supervisor, manager, or another person with authority over an employee makes submission to sexual demands of some sort a condition of their employment. The other type involves pervasive or severe conduct of a sexual nature that is unwelcome and which a reasonable person would find to create a hostile work environment.

Under federal law and many state laws, including New York, employers are not obligated to pay tipped workers as much in cash wages as other employees. Instead, they must pay a lower minimum cash wage, with a “tip credit” for the difference between that amount and the regular minimum wage. Servers in New York City have a higher minimum wage than servers in the rest of the state, and state law sets a higher minimum wage than federal law.

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A criminal record is one of the biggest impediments to employment opportunities. The mere fact that someone was once arrested makes some employers wary of hiring them, even if they were never convicted of any offense, and even if the circumstances of the arrest or charge have no bearing on the job they are seeking. New York City employment discrimination lawyers have more tools at their disposal than lawyers elsewhere, thanks to city laws that offer extensive protections for job seekers who are trying to move forward with their lives. The New York City Human Rights Law (NYCHRL) limits employers’ ability to obtain and act on criminal history information. This includes information about convictions and arrests that never resulted in a conviction. A lawsuit filed in early December 2020 alleges that an employer violated the NYCHRL with a policy that denied all applicants with arrest records.

The NYCHRL prohibits employment discrimination on the basis of criminal history, including both convictions and arrests or charges that never led to convictions. The statute draws on state law to protect job applicants with both prior arrests and prior convictions. In either case, an employer may not inquire about criminal history when a person is first applying for a job. The first opportunity an employer has to ask about criminal history occurs when they make a conditional offer of employment. If something in the individual’s criminal history leads the employer to make an adverse decision — such as not hiring them — the employer must follow procedures set forth in the New York State Corrections Law. See N.Y.C. Admin. Code §§ 8-107(10), (11-a); N.Y. Corr. L. § 750 et seq. These procedures include an evaluation of whether the applicant’s criminal history will affect the job they are seeking.

The New York State Human Rights Law (NYSHRL) states that an employer commits an unlawful practice when it discriminates against someone based on one or more arrests that did not result in convictions. N.Y. Exec. L. § 296(16). Under the NYCHRL, an employer may neither inquire about nor make an adverse employment decision based on arrest history if it would violate this provision of the NYSHRL. N.Y.C. Admin. Code § 8-107(11).

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