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Pregnancy and caregiver discrimination can take many forms, such as firing someone upon learning of their pregnancy, denying a pregnant employee a reasonable accommodation to allow them to keep working, or denying opportunities to employees with childcare responsibilities. As New York City discrimination lawyers, we have seen near-countless examples of adverse employment actions based on pregnancy, childbirth, and caregiver duties. The New York City Human Rights Law (NYCHRL) goes further than federal law and most city and state laws in protecting workers. The city’s Commission on Human Rights (CHR) held a public hearing in January 2019 to see how it can do even better.

At the federal level, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a). It defines that term to include “pregnancy, childbirth, or related medical conditions.” Id. at § 2000e(k). The NYCHRL prohibits employment discrimination on the basis of multiple factors, including gender. N.Y.C. Admin. Code § 8-107(1)(a). It does not expressly include pregnancy or childbirth in its definition of “gender,” but it does include “gender-related characteristic[s],” which could be construed to include pregnancy and childbirth. Id. at § 8-102.

The NYCHRL goes further than Title VII in its number of protected categories, as well as the types of protection offered to pregnant workers and those who have recently given birth. Employers are required to provide reasonable accommodations to an employee based on “pregnancy, childbirth, or a related medical condition” to “allow [them] to perform the essential requisites of the job.” Id. at § 8-107(22)(a). To be considered “reasonable,” the accommodation must not “cause undue hardship” to the employer’s business. Id. at § 8-102. Amendments to the NYCHRL enacted in 2018 expand employer’s responsibilities to include accommodating breastfeeding workers’ need to express milk during work shifts.
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New York City has one of the country’s most expansive and comprehensive antidiscrimination statutes. The city government frequently looks for ways to improve employee protections against discrimination and harassment. A new campaign by the city’s Commission on Human Rights (CHR) seeks to raise awareness of issues faced by Black residents in housing, employment, and other areas. The campaign’s title, “While Black,” evokes a common saying that involves Black people receiving negative attention, or worse, for otherwise ordinary activities. “Driving while Black,” reflecting the disproportionate number of traffic stops of Black drivers, is perhaps the most famous example. As New York City discrimination attorneys, we have seen far too many examples of race-based discrimination and harassment in the workplace and elsewhere.

The New York City Human Rights Law (NYCHRL) prohibits discrimination on the basis of numerous factors, including race, in employment, housing, banking, and other areas. N.Y.C. Admin. Code § 8-107. Race is one of the core protected categories under most employment discrimination statutes. The New York State Human Rights Law and Title VII of the federal Civil Rights Act of 1964 also prohibit employment discrimination based on race. N.Y Exec. L. § 296(1)(a), 42 U.S.C. § 2000e-2(a).

While these statutes all prohibit race discrimination, they do not provide much detail on the sorts of acts that may constitute such discrimination. The regulations implementing the antidiscrimination provisions of Title VII, for example, contain an entire subchapter on national origin discrimination, 29 C.F.R. Part 1606, but nothing specifically addressing or defining race discrimination. The CHR’s campaign is intended, in part, to raise public awareness of the ways that discrimination and harassment based on race occur in New York City workplaces, public spaces, and elsewhere.
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Many sexual harassment claims involve patterns of inappropriate comments. When assessing whether comments are inappropriate and of a sexual nature, New York City sexual harassment lawyers must consider verbal cues, body language, and facial expressions. Most or all of those cues are missing, however, in written communications. This is particularly true when emoji symbols are involved. “Emoji sexual harassment” is a relatively new, but quickly growing, area of law. Some lawsuits include emoji among the alleged inappropriate comments, often based on secondary meanings ascribed to particular symbols. At the same time, some courts have cited plaintiffs’ use of emoji when ruling for defendants.

Sexual harassment is a form of sex discrimination in violation of the New York City Human Rights Law (NYCHRL), the New York State Human Rights Law (NYCHRL), and Title VII of the Civil Rights Act of 1964. Unlawful sexual harassment generally takes two forms. “Hostile work environment” occurs when pervasive and unwelcome sexual behavior interferes with a person’s ability to do their job. “Quid pro quo sexual harassment” occurs when submission to some form of sexual activity is made a condition of obtaining or keeping employment. Unwanted sexual remarks or overtures are a common feature of both types of sexual harassment claim.

Emoji are a set of small images that can be inserted into text messages on smartphones, as well as in emails and social media services like Facebook. Certain symbols have taken on specific meanings. An article in Wired describes the symbols as “a primitive language.” As a result of this, the inclusion of emoji in a text message can convey unintended meanings, or plausibly-deniable meanings. Emoji symbols that depict objects that might be considered phallic, such as the corn and eggplant symbols, have taken on that secondary meaning. Even symbols that seem to have obvious meanings, like the “smiley face” emoji, can be subject to multiple interpretations.
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Workers are protected from a wide range of employment practices under the laws of New York City. Employment discrimination attorneys can assert claims on their clients’ behalf under city law for unlawful actions by employers based on gender, caregiver status, and other factors. Federal and state law prohibit discrimination on the basis of pregnancy and recent childbirth. New York City’s prohibition on caregiver discrimination offers further employment protections for young parents. These provisions do not specifically mention gender, but caregiver discrimination is often intertwined with gender discrimination simply because of gendered assumptions about caregiving. A lawsuit filed last year, Avery v. Le Bernardin, Inc. et al, No. 1:18-cv-000626, complaint (S.D.N.Y., Jan. 24, 2018), illustrates this close relationship, as well as the proximity between sexual harassment and other forms of gender discrimination. The plaintiff dismissed her suit without prejudice several months after filing it, but the complaint still offers a useful example of the kinds of allegations often found in the restaurant industry.

Sexual harassment is considered a form of unlawful sex discrimination under most employment antidiscrimination statutes. The New York City Human Rights Law (NYCHRL) is one of the few statutes in the U.S. to address caregiver discrimination. It defines a “caregiver” as an individual “who provides direct and ongoing care for a minor child or a care recipient.” N.Y.C. Admin. Code § 8-102. The term “care recipient” applies to a person who is a family member or resides with the caregiver, who suffers from a disability, and who depends on the caregiver for daily support. This person could be an adult or a child. The definition of “caregiver” also includes responsibility for a “minor child,” simply defined as someone under the age of eighteen. This effectively includes all parents.

The plaintiff in Avery worked for about three years as a server at “one of the finest restaurants in the United States.” Avery, complaint at 1. She alleged that women who worked at the restaurant regularly faced sexual harassment, and that management either ignored complaints or “shamed” the people who complained. Id. at 2. She further alleged that one of the restaurant’s owners, whom she named individually as a defendant, engaged in “body shaming of Plaintiff shortly after giving birth for her weight gain,” among other claims. Id. The restaurant, she claims, refused to assign her to lunch shifts to accommodate her childcare schedule, resulting in her constructive discharge.
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Race discrimination in employment is not limited to overt expressions of bias. It can be more subtle, particularly when an individual’s expression of their racial, ethnic, or cultural identity is involved. This often occurs with regard to hairstyles. Antidiscrimination statutes like the New York City Human Rights Law (NYCHRL) prohibit discrimination on the basis of race and other factors. The city’s Commission on Human Rights (CHR) recently issued new guidelines that address how anti-Black racism in employment can manifest as complaints about employee hairstyles. A review of court decisions around the country show some recognition of hairstyle discrimination, but New York City race discrimination attorneys should look first to the NYCHRL and the CHR’s guidelines.

In the context of the new guidelines, the CHR defines “Black” to include individuals “who identify as African, African American, Afro-Caribbean, [or] Afro-Latin-x/a/o.” It identifies hairstyles commonly associated with Black people’s “racial, ethnic, or cultural identities” as including “locs, cornrows, twists, braids, Bantu knots, fades, [and] Afros.” The guidelines state that “Black hairstyles are…an inherent part of Black identity,” and are therefore protected by the NYCHRL.

Some courts around the country have recognized race discrimination claims based on employers’ alleged treatment of employees’ hairstyles. A plaintiff alleged that her employer began discriminating against her after she began wearing her hair in an “Afro” style in Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F. 2d 164 (7th Cir. 1976). The court, in recounting how the defendant allegedly expressed its objection to the plaintiff’s hairstyle, noted that “[a] lay person’s description of racial discrimination could hardly be more explicit.” Id. at 168. It went on to find that “[t]he reference to the Afro hairstyle” was an expression of “the employer’s racial discrimination.” Id.
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Workers in New York City are protected from discriminatory actions by their employers based on a wide range of factors. New York City discrimination attorneys can bring claims on behalf of clients in state or federal court, or with an administrative agency like the city’s Commission on Human Rights (NYCHR). A complaint filed with the NYCHR last year alleges that a museum in Queens rescinded a job offer when it learned that the complainant had recently given birth. The complainant in Columbus v. MoMA PS1, et al asserts claims under city law for gender, pregnancy, and caregiver discrimination.

The New York City Human Rights Law (NYCHRL) prohibits discrimination on the basis of gender and caregiver status, among other categories. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102. The term “care recipient” has an extensive definition, but the relevant provision for the Columbus case involves caregiving responsibilities for a “minor child,” defined as a child under the age of eighteen.

Pregnancy is not expressly included in the NYCHRL’s list of protected categories. Neither is it included in the definition of sex discrimination, like in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e(k). The NYCHRL does, however, require employers to provide “reasonable accommodations” to employees who are pregnant or have recently given birth, which 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 extends protections against employment discrimination to individuals with criminal records, who often find themselves excluded from job opportunities. New York City employment discrimination attorneys may draw upon city and state law in support of these claims. A lawsuit that worked its way through multiple New York courts alleged aider and abettor liability under state law against a company that hired the plaintiffs’ employer as an independent contractor. The case began in a Brooklyn federal district court in 2011, and returned there in 2018 after rulings from both the Second Circuit Court of Appeals and the New York Court of Appeals. The district judge ultimately ruled against the plaintiffs in their aider and abettor claims in Griffin v. Sirva, Inc., 291 F.Supp.3d 245 (E.D.N.Y. 2018), but the ruling offers a useful overview of how such a claim might work.

Both the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) generally prohibit discriminating against a job applicant on the basis of criminal history unless they follow specific provisions found elsewhere in state law. N.Y.C. Admin. Code § 8-107(10)(a), N.Y. Exec. L. § 296(15). Article 23-A of the New York Corrections Law requires employers to consider factors like the severity of the offense, the amount of time that has elapsed since the offense and conviction, and the extent to which the offense has any bearing on the position sought by the applicant. N.Y. Corr. L. § 753(1). Aiding and abetting a violation of either statute is considered a distinct unlawful discriminatory practice. N.Y.C. Admin. Code § 8-107(6), N.Y. Exec. L. § 296(6).

The plaintiffs in Griffin were employed by a company that “provides local warehouse services and transportation services.” Griffin, 291 F.Supp.3d at 248. The defendant hired the company as an independent contractor. The contract required the plaintiffs’ employer to comply with a “Certified Labor Program,” which reportedly involved criminal background checks that automatically excluded people with certain convictions. Id. The plaintiffs alleged that they were terminated by their employer after they did not pass this background check. They sued their employer and the defendant. They alleged that the defendant was a joint employer liable for aiding and abetting under the NYSHRL.
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Local, state, and federal employment statutes protect New York City workers from discrimination and harassment. Laws like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) view sexual harassment as a form of sex discrimination, and allow aggrieved individuals to file suit for damages. A lawsuit filed last year in federal court alleges a sequence of events that is familiar to New York City sexual harassment attorneys. The plaintiff claims that a supervisor subjected her to unwanted sexual remarks and advances, and that school administrators retaliated against her for reporting the harassment. Thomas v. N.Y.C. Dept. of Educ., et al, No. 1:18-cv-04459, complaint (E.D.N.Y., Aug. 7, 2018).

Title VII, the NYCHRL, and the New York State Human Rights Law (NYSHRL) prohibit discrimination in employment on the basis of sex, among other factors. See 42 U.S.C. § 2000e-2(a), N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(a). Various court decisions have identified sexual harassment as a form of sex discrimination under these statutes. One situation involves a hostile work environment in which “a man or woman [must] run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986), quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982).

The plaintiff in Thomas states in her complaint that she began working for the New York City public school system as a teacher in 1988, and received tenure in 1996. She began working at a magnet school in Queens in 1998, where she “transitioned into a role as a Guidance Counselor.” Thomas, complaint at 4. The plaintiff identifies several individuals who served as principal of the school during her time there. She alleges that, until recently, she regularly received “positive and satisfactory formal and informal observations” from her supervisors. Id.

The legal landscape for caregivers in the U.S. is still largely uncertain when it comes to employment. The U.S. is one of the only countries in the world with no provisions at the national level for paid parental leave. Protections for caregivers against employment discrimination are patchy. New York City caregiver discrimination attorneys have more options than their colleagues in other cities, thanks to provisions in the New York City Human Rights Law (NYCHRL) that expressly address caregivers. Other statutes may offer protection to caregivers in certain situations. Last year, the Equal Employment Opportunity Commission (EEOC) settled a gender discrimination lawsuit against a major cosmetics company. The agency had alleged that the company discriminated against male employees by allowing female employees to take more paid parental leave. EEOC v. Estee Lauder Companies, Inc., No. 2:17-cv-03897, complaint (E.D. Pa., Aug. 30, 2017).

Two federal statutes directly address employment discrimination on the basis of sex. Title VII of the Civil Rights Act of 1964 prohibits a wide range of discriminatory acts based on sex and other factors. 42 U.S.C. § 2000e-2(a). The Equal Pay Act (EPA) of 1963 prohibits discrimination in wages based on sex, provided that the alleged disparity in pay involves jobs “requir[ing] equal skill, effort, and responsibility…under similar working conditions.” 29 U.S.C. § 206(d)(1). No federal statute directly addresses discrimination on the basis of caregiver responsibilities. The NYCHRL is one of the first employment laws in the country to provide express protections on this basis. See N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

The defendant in the Estee Lauder case offered paid parental leave to qualifying employees under four programs: “maternity leave, adoption leave, primary caregiver leave, and secondary caregiver leave.” Estee Lauder, complaint at 5. Three of these programs included at least four weeks of paid leave, with maternity leave lasting as long as six weeks. The secondary caregiver leave program, however, only allowed two weeks of paid leave. Employees using maternity, adoption, or primary caregiver leave were also entitled to a “transition back-to-work benefit,” which allowed them to gradually return to a full-time schedule over an additional four-week period. Id. at 5-6. The primary caregiver benefit was only available “in surrogacy situations.” Id. at 7. According to the EEOC’s complaint, the defendant only allowed biological fathers to utilize the secondary caregiver benefit.
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Employees who are pregnant or have recently given birth are protected from discrimination under multiple statutes. New York City pregnancy attorneys may draw on two federal statutes: Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978; and the Family and Medical Leave Act (FMLA) of 1993. A plaintiff recently obtained a $500,000 judgment against her former employer in a lawsuit that asserted claims for pregnancy discrimination under both statutes. Ota v. Trustees of the Univ. of Pa., et al, No. 2:18-cv-01651, complaint (E.D. Pa., Apr. 19, 2018).

Title VII prohibits employment discrimination on the basis of five factors: “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The PDA amended Title VII’s definition of discrimination “on the basis of sex” to include discrimination based on “pregnancy, childbirth, or related medical conditions.” Id. at § 2000e(k). The FMLA, meanwhile, requires covered employers to provide qualifying employees with a certain amount of unpaid leave for medical purposes, either for themselves or for a family member. Employers may not “interfere with, restrain, or deny the exercise of” a right provided by this statute, nor may they discriminate or retaliate against an employee who complains about an alleged violation. 29 U.S.C. § 2615(a).

The plaintiff in Ota is a “pathologist and clinical microbiologist.” Ota, complaint at 1. She held two positions prior to giving birth to a child in 2015: Director of the Clinical Microbiology Lab at the Children’s Hospital of Philadelphia (CHOP), and Assistant Professor in the Pathology and Laboratory Medicine Department at the University of Pennsylvania. Id. She states in her complaint that she was hired by both employers at about the same time in 2011, although she was not promoted to the position of laboratory director at CHOP until 2012.

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