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An important limitation on employees’ rights under various antidiscrimination statutes is how each statute defines “employer.” Most laws set a minimum threshold of number of employees. Employers with fewer employees than that number are not considered “employers” within the meaning of that statute. In practice, this means that employees of small employers are not eligible for those laws’ protection against workplace discrimination, sexual harassment, and other unlawful practices. A new law passed by the New York Legislature, which the Governor is expected to sign, will expand the coverage of the New York State Human Rights Law (NYSHRL) to almost all employers in the state. The Legislature previously amended the NYSHRL to eliminate the minimum employee count for claims involving alleged sexual harassment. The new bill, A8421/S6577, as amended by S6594, makes the full range of the NYSHRL’s provisions applicable to employers of all sizes.

Title VII of the Civil Rights Act of 1964 defines an “employer” as a person who employs at least fifteen people for at least twenty weeks in the current, or the most recent, calendar year. 42 U.S.C. § 2000e(b). The federal government, its agencies, and any corporation wholly-owned by the federal government are not considered “employers” under Title VII. Indian tribes and the government of the District of Columbia are also exempt from Title VII’s definition.

The New York City Human Rights Law (NYCHRL) defines an “employer” as any person with four or more employees. N.Y.C. Admin. Code § 8-102. Much like the NYSHRL prior to the new amendments, the statute makes an exception in cases involving alleged sexual harassment. The NYCHRL also provides that individuals who are employed as independent contractors count towards the employer’s employee count, as long as they do not employ anyone themselves.
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Marjorie Mesidor is a partner at Phillips & Associates who focuses her practice on the representation of individuals in employment discrimination lawsuits. Ms. Mesidor has been deemed a Rising Star and a Top Woman Attorney by Super Lawyers, a rating service that recognizes outstanding attorneys, on numerous occasions. Ms. Mesidor recently advised Super Lawyers as to the rights the law affords a pregnant woman working in New York.

Pregnancy Discrimination Act

It is an unfortunate fact that many women face discrimination in the workplace due to pregnancy. As Ms. Mesidor indicated, however, the federal Pregnancy Discrimination Act (PDA) protects pregnant women from discriminatory acts in the workplace. Thus, if you are pregnant, your employer is not permitted to deal with you differently than other employees simply because you are pregnant. Notably, the PDA is only applicable in cases where the employer has at least fifteen employees. There are additional state and local laws that afford protection from discrimination to pregnant workers as well, however. Ms. Mesidor noted some examples of discrimination pregnant women experience in the workplace include reduced pay, a reduction in duties or denial of a promotion, being reassigned to another position, and termination.

Accommodations for Health Issues that Arise During Pregnancy

Many women experience complications or other health issues during pregnancy, that require them to work a modified schedule. As Ms. Mesidor noted, under both state and federal disability laws, pregnancy is a short-term disability. As such, pregnant women can request reasonable accommodations during their pregnancies, and in many cases, the employer is required to provide such accommodations. Examples of accommodations generally requested due to pregnancy include lighter duty and shorter or adjusted hours. If you are pregnant and your request for a reasonable accommodation from your employer was denied, you may have grounds to pursue a discrimination claim against your employer.

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Steven Fingerhut, an employment litigation associate at Phillips & Associates, recently offered advice to Super Lawyers as to how a person can tell if he or she has grounds to pursue a New York disability discrimination claim. Mr. Fingerhut was recently named to the New York Rising Stars by Super Lawyers, which is an honor reserved for the top attorneys in a practice area in each state.

Laws Protecting Workers with Disabilities

Mr. Fingerhut noted that local, state, and federal laws prohibit employers from discriminating against people with disabilities. For example, the New York State Human Rights Law (NYSRHL), the New York City Human Rights Law (NYCHRL), and the Americans with Disabilities Act (ADA), all protect people from disability-based workplace discrimination. In New York, to recover damages for a disability discrimination claim, you must prove that you meet the elements of a claim as defined by one of the anti-discrimination laws.

While each of the aforementioned laws prohibits discrimination against an individual with a disability, they all have a unique definition of what constitutes a disability. For instance, the ADA defines a disability as a physical, medical, or mental impairment that inhibits a person in performing a major activity of daily life. Some actions that are considered major activities of daily life are hearing, seeking, and walking. Additionally, a person is not only considered disabled for purposes of the ADA if he or she actually has a disability, but also if he or she is believed to have a substantial or permanent mental or physical impairment, regardless of whether the person actually has the impairment.

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New York City discrimination laws prohibit employers from taking adverse actions against employees and job applicants because of a wide range of factors. The laws of New York state also provide broad protection against discrimination in the workplace. At the federal level, Title VII of the Civil Rights Act of 1964 only identifies five protected categories, including sex. While municipal and state laws in New York City offer protection against discrimination based on gender identity, gender expression, and sexual orientation, federal courts are split on whether Title VII’s ban on sex discrimination implicitly includes these categories. The U.S. Supreme Court granted certiorari to several cases in April 2019 that raise these questions. Two cases involve sexual orientation discrimination, and involve conflicting circuit court decisions. A third case involves gender identity discrimination. No circuit split exists, because this is reportedly the first such case to reach the federal appellate level. The Supreme Court agreed to hear the case anyway.

New York City’s antidiscrimination law prohibits discrimination on the basis of gender, and expressly includes “actual or perceived…gender identity and gender expression” in its definition. N.Y.C. Admin. Code § 8-102. At the state level, gender identity and gender expression are protected categories in their own right. N.Y. Exec. L. § 296(1)(a). Federal law identifies a cause of action for discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Congress and the courts have expanded the definition of “sex discrimination” to include matters like pregnancy discrimination and sexual harassment.

The Equal Employment Opportunity Commission (EEOC) has found that discrimination on the basis of sexual orientation, gender identity, and gender expression falls under Title VII’s prohibition on sex discrimination. This is based in part on a Supreme Court case that ruled that discrimination on the basis of “sex stereotypes,” meaning stereotypes about how member of a certain sex should look or act, violates Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The EEOC’s interpretation of Title VII has not caught on in most federal courts.
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Criminal history can be an enormous impediment to obtaining employment. People often find themselves shut out from many opportunities, even when their particular history of arrest or conviction has no bearing at all on the job they are seeking. New York City employment discrimination attorneys can look to the Fair Chance Act (FCA) in claims for discrimination on the basis of criminal history. A related issue involves drug testing during hiring. Marijuana is legal for, at a minimum, medical use in more than half of the states in the country, including New York. Many employers, however, continue to use marijuana testing to eliminate job candidates. Local Law 2019-091, which will go into effect in New York City in May 2020, will prohibit pre-employment testing for marijuana in many situations.

The FCA bars employers from inquiring about criminal history until the final stages of the hiring process. N.Y.C. Admin. Code § 8-107(11-a)(a)(3). Employers may not discriminate against job applicants solely on the basis of criminal history, unless they follow procedures set forth by state law. Id. at §§ 8-107(10)(a), (11-a)(b); N.Y. Corr. L. § 750 et seq. Exceptions include jobs that require specific security clearances, and situations where an individual’s specific history would directly affect the job in question.

While marijuana remains highly controlled under federal law, most states have eased restrictions to various extents. California was the first state to allow medical marijuana use, and Colorado was the first to allow recreational use. New York enacted medical marijuana legislation in 2014. While the state has not decriminalized it to the extent of states like Colorado, it recently downgraded possession of small amounts from a criminal offense to a civil violation.
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Anyone who works in the State of New York is protected against sexual harassment and discrimination in the workplace by multiple laws, including the New York State Human Rights Law (NYSHRL). While the NYSHRL already provided greater protection against discrimination than the federal laws, recently passed amendments and proposed amendments that are pending approval vastly enlarged employees’ defenses against discrimination and harassment and expanded the liability imposed on employers. If you live in New York and suffered discrimination or sexual harassment at work, it is essential to meet with a trusted New York employment litigation attorney to discuss your prospective claims. At Phillips & Associates, our knowledgeable New York employment litigation attorneys are dedicated to assisting individuals who suffered harm due to sexual harassment or discrimination in the workplace in the pursuit of damages in New York and throughout the Tri-State area.

2018 Changes to the NYHRL

The recent changes made to the NYSHRL provided greater protection for employees and certain non-employees and imposed greater liability on employers. The changes require employers to develop and distribute written anti-harassment policies and conduct annual mandatory programs to prevent sexual harassment. Additionally, protection from sexual harassment is expanded from employees only to consultants, contractors, vendors, and other individuals working for an employer under the terms of a contract. An employer can be held accountable for the sexual harassment of these individuals if the employer either knew or should have known of the harassment and failed to rectify the situation.

The changes also modified the terms employers are permitted to include in certain contracts. For example, employers are barred from including provisions in employment contracts that make it mandatory to arbitrate sexual harassment claims, if the provision states that the arbitrator’s findings will be final and binding. Further, an employer cannot insert a confidentiality clause in a settlement agreement for a sexual harassment claim, unless the employee specifically requests the inclusion of the clause in writing. Additionally, the employee must be granted twenty-one days to weigh the terms of a settlement agreement and must be allowed seven days after the execution of the agreement to retract the agreement. Continue reading

Multiple legal strategies are available to New York City employment discrimination attorneys who are planning to assert a claim for sexual harassment on a client’s behalf. Federal, state, and municipal law provide protection against a wide range of discriminatory workplace practices. State law includes provisions that specifically apply to domestic workers, and which outline various situations that may constitute unlawful sexual harassment. A lawsuit filed in a Manhattan federal court in April 2019 alleges sexual harassment and other claims against an individual who employed the plaintiff as an au pair for his son. The complaint cites provisions of state and federal law that apply to domestic workers.

While sexual harassment is deemed a type of sex discrimination in any workplace, the New York State Human Rights Law (NYSHRL) addresses it in more specific terms for domestic workers. The term “domestic worker” includes people employed in someone’s residence to perform housekeeping services; to care for a child or “a sick, convalescing or elderly person”; or for “other domestic service purpose[s].” N.Y. Exec. L. § 296-b(1), N.Y. Lab. L. § 2(16). The NYSHRL prohibits “unwelcome sexual advances,” “requests for sexual favors,” and other conduct in two scenarios:
1. When acquiescence “to such conduct is made…a term or condition of…employment,” or the employer bases employment-related decisions on how the individual responds to the conduct; or
2. When the conduct creates a hostile work environment that “unreasonably interfer[es] with…work performance.” N.Y. Exec. L. § 296-b(2)(a).
These are the same scenarios that constitute sexual harassment under federal and city law. The New York Legislature has taken the extra step of codifying these definitions, as they pertain to domestic workers, in the NYSHRL.

According to her complaint, the plaintiff was nineteen years old when the defendant hired her to work in his home as an au pair for his twelve-year-old son, and to perform other jobs around the house. She notes that the defendant was fifty-seven years old at that time. She also notes the difference in size between them, with the defendant allegedly outweighing her by about eighty pounds and standing more than seven inches taller.
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New York has enacted several laws last year that were intended to help individuals who have experienced workplace sexual harassment. While those laws, which require training and other measures, may represent progress in terms of preventing future sexual harassment from occurring, critics have argued that they do little to help people who already have potential claims. In order to obtain relief in court, claimants typically must establish that the alleged harassment met a “severe or pervasive” standard established by the U.S. Supreme Court more than three decades ago. New York City discrimination attorneys are familiar with how difficult this standard can be to meet. This might no longer be the case, however, for claims under state law in New York. The state legislature passed a bill on June 19, 2019 that amends the New York State Human Rights Law (NYSHRL) to address sexual harassment specifically. Since the governor has also called for changes to sexual harassment law as part of his 2019 agenda, he has indicated that he will sign the bill.

The NYSHRL, Title VII of the Civil Rights Act of 1964, and other employment discrimination statutes recognize sexual harassment as a form of unlawful sex or gender discrimination. The U.S. Supreme Court made this finding for the first time in a 1986 decision, Meritor Savings Bank v. Vinson. The court ruled that, in order to sustain a claim for sexual harassment, a plaintiff must demonstrate that the conduct was so “severe or pervasive” that it “alter[ed] the conditions of…employment and create[d] an abusive working environment.” The New York Court of Appeals has adopted a comparable standard for harassment claims, citing Meritor and a related case from 1993, Harris v. Forklift Systems.

Critics of current New York law regarding sexual harassment—prior to the passage of the bill mentioned earlier—note that the “severe or pervasive” standard has led to court rulings dismissing many claims that seem to go far beyond any acceptable standard of conduct in the workplace. The Meritor case, according to the Supreme Court, involved “not only pervasive harassment but also criminal conduct of the most serious nature.” The ruling did not necessarily provide a useful guide for situations that were, relatively speaking, less appalling.
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Can an employer fire an employee for getting sick? This was the question addressed by Jesse Weinstein, a Litigation Associate at Phillips & Associates, in an article published by Lawyer Monthly online and in its June 2019 print issue. The answer, as with almost any legal question, is that it depends. As an “at-will employment” state, New York law allows employers to fire their employees for any reason, or no reason at all, as long as the decision does not violate laws against discrimination, retaliation, and related practices. Firing an employee because of an illness might violate the law if the employee’s illness is a legally-protected disability, or if the employee is entitled by law to medical leave with employment protection. New York City employment attorneys can choose from multiple statutes, from the local up to the national level, when advocating for their clients’ rights.

The New York City Human Rights Law prohibits discrimination on the basis of disability and defines the term broadly to include “any physical, medical, mental or psychological impairment.” N.Y.C. Admin. Code § 8-102, 8-107(1)(a). Further, the law requires employers to make reasonable accommodations for workers with disabilities, as well as workers who or pregnant or have recently given birth, to allow them to perform their job duties. Id. at §§ 8-107(15), (22). Employers are not obligated to accommodate employees if doing so would pose an undue hardship.

Statewide, the New York State Human Rights Law gives the term “disability” a narrower definition, applying it in part to “physical, mental or medical impairment[s]” that “prevent[] the exercise of a normal bodily function.” N.Y. Exec. L. § 292(21). The statute prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodations except in cases of undue hardship. Id. at §§ 296(1)(a), (3).
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Phillips & Associates has established itself as one of New York City’s top employment discrimination law firms, with an exclusive focus on employee representation. Our attorneys have obtained more than $110 million in verdicts and settlements. Many of them have received recognition from their peers as leaders in the field of employment law. The legal publication TopVerdict recently recognized three of our attorneys for a jury verdict of $2.31 million in an employment discrimination lawsuit. Marjorie Mesidor, Brittany A. Stevens, and Nicole A. Welch represented a former employee of the Port Authority of New York and New Jersey (PANYNJ) in a case that alleged hostile work environment based on race and national origin. TopVerdict included the case in its “Top 100 Verdicts in New York” list for 2018.

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees and job applicants on the basis of race and national origin, among other factors. See 42 U.S.C. § 2000e-2(a). Multiple court rulings have established that an employer commits an unlawful employment practice when they create a hostile work environment based on a protected category. While a hostile work environment is probably most familiar in the context of sexual harassment, it can also occur when an unwelcome and pervasive pattern of harassment is directed at a person’s race, color, religion, or national origin.

The Civil Rights Act of 1991 offers further protection against discrimination on the basis of race. It guarantees the right of all persons in the U.S., regardless of race, “to the full and equal benefit of all laws and proceedings for the security of persons and property.” Id. at § 1981. Unlike Title VII, this statute allows plaintiffs to recover punitive damages if they can establish that a defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. at § 1981a(b)(1).
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