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Employment discrimination on the basis of pregnancy, childbirth, and medical conditions related to either is considered unlawful sex discrimination under antidiscrimination laws in New York City and elsewhere around the country. The extent of protections offered by these statutes is a matter of ongoing dispute among New York employment attorneys and in the courts. A lawsuit originally filed last year alleges that a company’s attendance policy discriminated against pregnant employees, both intentionally and through disparate impact. Hills, et al v. AT&T Mobility Services LLC, No. 3:17-cv-00556, 2d am. complaint (N.D. Ind., May 14, 2018).

The Pregnancy Discrimination Act (PDA) of 1978 amended the definition of discrimination “on the basis of sex” in Title VII of the Civil Rights Act of 1964 to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Unlawful pregnancy discrimination includes overt acts, such as terminating an employee upon learning of their pregnancy, or forcing a pregnant employee to take unpaid leave. It can also include “disparate impact” discrimination, in which a seemingly neutral policy or practice violates Title VII if it has an adverse and disproportionate impact on a protected group.

In addition to prohibiting disability discrimination, the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with disabilities. 42 U.S.C. §§ 12111(9), 12112(b)(5)(A); 29 C.F.R. § 1630.9. The statute provides a broad definition of “disability,” including both an actual condition that impairs life activities, and the perception by others of having such an impairment. 42 U.S.C. § 12102(1)(C). This definition does not expressly include pregnancy, but amendments to the ADA, along with interpretations by the Equal Employment Opportunity Commission (EEOC), may allow various conditions associated with pregnancy and childbirth to fall under the definition of “disability.”
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The fashion industry in New York City and elsewhere around the country and the world has produced numerous accounts of the sexual harassment of models. Alleged New York sexual harassment incidents have involved photographers during shoots, or a wide range of people backstage during fashion shows, where models are often expected to change clothes without much privacy. Much of the attention has focused on female models. An article published earlier this year in the New York Times details male models’ allegations of sexual harassment. Men experience sexual harassment at lower overall rates than women, with the Equal Employment Opportunity Commission reporting that seventeen percent of the complaints it receives are from men. The modeling business presents an unusual situation, however, since it is one of the very few jobs where women routinely—and often significantly—earn more than men. Both female and male models have alleged various types of sexual harassment, including “casting couch” situations where they are told they must acquiesce to demands for sexual activity in order to advance in their careers.

Federal, state, and municipal laws in New York City prohibit sexual harassment, classifying it as a form of sex discrimination. Unlawful sexual harassment may take two broad forms. The “casting couch” scenario described above is an example of “quid pro quo sexual harassment,” where sexual activity of some sort is made a condition of obtaining employment, or of accessing various features and benefits of employment. The modeling business also presents scenarios that could constitute “hostile work environment.” This type of sexual harassment involves unwanted sexual behavior in the workplace, ranging from jokes or remarks to nonconsensual contact, which is pervasive enough to interfere with the complainant’s ability to work.

Models often exist somewhat outside of traditional employee/employer relationships, which can affect their ability to assert a claim under the law. They are represented by agencies, who enter into agreements with fashion brands and other companies. Those companies might be the ones to hire the photographer. According to the New York Times, the agencies and the brands point fingers at each other with regard to who is responsible for protecting models from sexual harassment and abuse at the hands of photographers and others. The photographers, the Times article states, “say they do what they do to get the best picture — which is what the clients want.”
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New York employment discrimination laws (as well as those around the country) tend to focus on the actions of individual managers, supervisors, or others; or on individual discriminatory policies or practices by employers. This approach is useful and necessary for obtaining justice for individual employees who have endured sexual harassment. It is proving, however, to be insufficient for addressing broader systemic problems that enable and contribute to sexual harassment and employment discrimination in the first place. Liability for damages in a sexual harassment lawsuit might not provide incentive for widespread reforms in companies with vast resources. Earlier this year, the State of New York tried a different approach. Instead of acting in its capacity as an enforcer of employment discrimination laws, it acted in its capacity as a corporate shareholder, alleging that a former CEO accused of sexual misconduct breached his fiduciary duties. New York City’s public pension funds later joined the lawsuit alongside the state funds. DiNapoli et al v. Wynn et al, No. A-18-770013-B, verif. am. complaint (Nev. Dist. Ct., Clark Cty., Mar. 23, 2018).

Under employment statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL), unlawful discrimination on the basis of sex includes sexual harassment in two broad categories. Quid pro quo sexual harassment consists of demands for sexual activity in some form as a condition of obtaining or maintaining employment. Hostile work environment involves unwelcome sexual conduct, ranging from sexual jokes or remarks to outright sexual contact or assault, that is so pervasive that it interferes with an employee’s ability to do their job. These laws allow employees to file complaints, followed by lawsuits, seeking a variety of damages.

Lawsuits for employment discrimination can lead to changes within a company, such as when a public agency like the Equal Employment Opportunity Commission requires new company policies, subject to monitoring and review, as part of a settlement. Unlike this type of lawsuit, which imposes change from the outside, shareholder derivative suits are brought by corporate insiders as a means of enforcing a corporation’s rights or protecting its interests. See N.Y. Bus. Corp. L. § 626. A lawsuit brought under Title VII or the NYCHRL typically casts the employer on the side of the alleged harasser, seeking to hold the company liable for the actions of its agent. A shareholder derivative suit arguably allows a company to distance itself from the alleged acts of individuals. It is no substitute for a lawsuit that allows an aggrieved employee to recover damages directly, but it could be a useful method of demonstrating that corporations will not tolerate sexual harassment among their executives.
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For the past year, the #MeToo movement has sought to shine a light on workplace sexual harassment. It has shown that, despite laws like Title VII of the Civil Rights Act of 1964, sexual harassment in New York City and across the country remains a major problem. While lawmakers and legal advocates examine the laws addressing sexual harassment, leaders in various industries are exploring ways to address the issue before the courts must get involved. The Producers Guild of America (PGA), a trade association representing film and television producers, issued new guidelines on sexual harassment in January 2018. The guidelines do not have the force of law, but they represent best practices recommended for both PGA members and others. The PGA also announced that Wonder Woman 1984, the sequel to the 2017 film Wonder Woman, would be the first production to adopt the new guidelines. If you have questions about how you’ve been treated at your job, speak to a New York sexual harassment attorney.

Experience unfortunately indicates that existing antidiscrimination statutes can only provide so much protection against sexual harassment. Title VII prohibits sex discrimination and sexual harassment in employment, but the legal definition of “employment” can exclude a wide range of people and jobs. The entertainment industry, where #MeToo began, offers an example of this problem. Many of the alleged acts of sexual harassment did not involve a specific job, such as a role in a film. Instead they were often presented as a way for individuals, usually actresses but also actors, to “pay their dues” in Hollywood.

The PGA’s Anti-Sexual Harassment Guidelines, first published on January 19, 2018, are intended to help movie and television producers respond to incidents of sexual harassment, and prevent sexual harassment from occurring in the first place. They provide definitions of the two main forms of sexual harassment recognized by law as unlawful sex discrimination: quid pro quo harassment and hostile work environment. The guidelines instruct producers, “first and foremost,” to comply with all relevant state and federal laws. From there, they recommend “in-person anti-sexual harassment (ASH) training” for all cast and crew members, prior to the start of production, that focuses on “a culture of respect that starts at the top.” Producers should provide clear systems for reporting alleged harassment, investigate all claims, and prevent retaliation.

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New York City’s antidiscrimination statute prohibits the use of job applicants’ criminal history in a discriminatory manner. People with criminal records often find that many employers are unwilling even to consider hiring them, regardless of whether their particular history has any bearing on the job they are seeking. Numerous jurisdictions around the country have enacted “Ban the Box” (BTB) laws, which limit employers’ use of criminal history information during the hiring process. Even in jurisdictions that do not have a BTB law, however, the discriminatory use of criminal history by employers may violate existing antidiscrimination laws if it has disparate impact based on a protected category. A major retailer recently settled a lawsuit alleging that its use of criminal background checks constituted disparate impact discrimination based on race in violation of federal law. Times, et al v. Target Corp., No. 1:18-cv-02993, complaint (S.D.N.Y., Apr. 5, 2018). If you believe you were discriminated against during the hiring process at a company, contact a dedicated New York employment attorney.

The “box” in the name “Ban the Box” refers to the checkbox on many job applications regarding criminal history. Checking that box has often meant that one’s application will go no further—or will go directly in the trash can. The New York City Human Rights Law has BTB provisions making it an “unlawful employment practice” for employers to discriminate based on “convict[ion] of one or more criminal offenses” or “an arrest or criminal accusation.” N.Y.C. Admin. Code §§ 8-107(10)(a), (11)(a). Employers must follow procedures set forth by state law regarding inquiries about criminal history. They may not make any inquiries whatsoever prior to extending a conditional offer of employment. After that, any adverse decision based on criminal history must be reasonably related to the specific job. The employer must notify the applicant in writing of the reasons for the adverse decision, and give the applicant a chance to respond.

A “disparate impact” discrimination claim involves an employment practice that disproportionately affects employees on the basis of a protected category, such as race, even if the employer has no intent to discriminate. The U.S. Supreme Court identified this claim in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The case involved an employer’s policy requiring a high school diploma or an “intelligence test” for certain jobs. Id. at 426. The court found that the policy was a “‘built-in headwinds’ for minority groups” that was “unrelated to measuring job capability.” Id. at 432. Regardless of the employer’s apparent lack of discriminatory intent, the court ruled that it had violated Title VII of the Civil Rights Act of 1964.
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Gender identity and gender expression discrimination violate New York City’s antidiscrimination law, but the question of whether federal law applies to this type of discrimination remains unsettled nationwide. Some federal courts have ruled that gender identity discrimination is a form of sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. Other courts have concluded that Title VII does not apply since it does not mention “gender identity discrimination” by name. In the midst of this uncertainty, a series of lawsuits is challenging the White House’s policy banning transgender individuals from serving in the U.S. military. These lawsuits rely on constitutional arguments, such as violations of the Equal Protection Clause of the Fourteenth Amendment, instead of Title VII or similar statutes. None of these cases have reached a conclusion, but at least two courts recently ruled that the government must produce information about the “deliberative process” that led to the policy. Karnoski, et al v. Trump, et al, No. 2:17-cv-01297, order (W.D. Wash., Jul. 27, 2018); Stone, et al v. Trump, et al, No. 1:17-cv-02459, mem. op. (D. Md., Aug. 14, 2018). If you believe you have been discriminated against due to your gender identity or expression at work, reach out to a New York employment attorney to discuss the facts of your situation.

The current dispute involves a directive from the White House, issued in July 2017 via the social media platform Twitter, to prohibit transgender individuals from serving in the U.S. military. This reportedly took the Department of Defense, among many others, by surprise. Numerous lawsuits were filed within weeks of the announcement. The Karnoski and Stone lawsuits referenced above were filed in August 2017. They sought preliminary injunctions against the enforcement of the new policy, which courts granted in both cases. Causes of action included alleged violations of the Due Process Clause of the Fifth Amendment, the Equal Protection Clause, and the Free Speech Clause of the First Amendment.

As the lawsuits proceeded to discovery, the plaintiffs requested information about how the White House developed the policy. They specifically cited a tweet from the President asserting that he had “consult[ed] with my Generals and military experts” prior to announcing the policy. The White House sought to withhold information responsive to these requests under the “deliberative process privilege,” a common law principle that is often cited in response to requests under the Freedom of Information Act. See 5 U.S.C. § 552(b)(5). The Department of Justice describes the privilege as necessary to enable “candid discussion needed for optimum decisionmaking inside government agencies,” but it also acknowledges that the government’s stated policy is to provide as much information to the public as possible.
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We have learned much in the last year about not only the extent of sexual harassment nationwide, but also people’s willingness to push back against workplace cultures that allow this sort of behavior to persist. The government is no exception, with people alleging numerous instances of sexual harassment in government agencies, legislative offices, and courts. Late last year, U.S. Supreme Court Chief Justice John Roberts acknowledged that sexual harassment has been a problem in the federal court system for some time. He joined other judges who have called for greater efforts to address New York sexual harassment, both in Manhattan and around the country. In June 2018, a working group formed to review the issue made recommendations for sweeping changes to the federal judiciary’s employment practices.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in various forms. The statute’s definition of an employer, however, excludes “the United States” and any “corporation wholly owned by the Government of the United States.” 42 U.S.C. § 2000e(b)(1). Title VII’s protections are only available to federal judiciary employees who “hav[e] positions in the competitive service,” which generally consists of “positions to which appointments are made by nomination for confirmation by the Senate.” 42 U.S.C. § 2000e-16(a), 5 U.S.C. § 2102(b).

This leaves many employees without recourse under Title VII. The Judicial Conference of the United States (JCUS) has adopted a Model Equal Employment Opportunity Plan. Complaints against judges might also be possible under the Judicial Conduct and Disability Act (JCDA) of 1980, which allows complaints “alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a).
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As employers contend with issues of sexual harassment and other forms of New York sex discrimination in the workplace, parts of the federal government seem to be recognizing their own shortcomings in these areas. Antidiscrimination statutes like Title VII of the Civil Rights Act of 1964 apply to private employers all over the country, while New York City’s antidiscrimination statutes provide additional protections to workers within the city. Federal agencies, in their capacity as employers, are generally bound by Title VII, amd they are also subject to internal watchdogs established by the Inspector General Act (IGA) of 1978. Last year, the Office of the Inspector General (OIG) in the U.S. Department of Justice (DOJ) issued a report harshly criticizing how the department has handled many cases involving alleged sexual harassment.

Under federal law, sexual harassment constitutes sex discrimination in violation of Title VII. Employees of private businesses must file a complaint with the Equal Employment Opportunity Commission (EEOC), an independent agency in the Executive Branch of the federal government, in order to assert a claim under Title VII. Employees of certain federal agencies can report sexual harassment and other alleged violations to their agency’s OIG, which has authority under §§ 2 and 6 of the IGA to investigate complaints and refer matters for further enforcement action.

Section 12(2) of the IGA identifies the federal agencies that must establish and maintain OIGs. The list includes the DOJ and all other Cabinet departments, as well as agencies like “the Environmental Protection Agency, the Federal Emergency Management Agency, [and] the General Services Administration.” Employees of these agencies are authorized by § 7(a) to make “complaints [to the OIG]…concerning the possible existence of an activity constituting a violation of law, rules, or regulations.” Section 7(b) requires OIGs to maintain the confidentiality of complainants whenever possible, and § 7(c) prohibits agency supervisors from retaliating against employees who make complaints.
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In New York City, sexual harassment is viewed as unlawful sex discrimination under federal, state, and municipal law. The past year has seen numerous instances of workplace sexual harassment finally seeing some measure of attention and, in some cases, justice. For all the progress that we have seen recently, it is worth remembering that nationwide recognition of sexual harassment as a violation of antidiscrimination laws first occurred just over thirty years ago, and that the term “sexual harassment” itself is barely forty years old. A group of women in New York coined the term in 1975, in support of a woman who quit her job because of a male supervisor’s alleged unwelcome sexual advances.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of several factors, including sex. A series of court decisions have expanded the definition of “discrimination on the basis of sex” to include two sexual harassment scenarios. First, “quid pro quo sexual harassment” involves demands for some sort of sexual activity by a supervisor or manager, either as a condition for obtaining employment or as a condition for continued employment or employment benefits. Second, a “hostile work environment” occurs when a worker is subjected to unwanted sexual conduct, ranging from jokes or comments to outright assault, which interferes with their ability to perform their job duties. It took years of advocacy and litigation to get legal recognition of these claims.

Before sexual harassment had a name, women had no clear way to push back against such behavior by bosses and coworkers. The television show Mad Men might have been a “historical drama,” but the history it portrayed is very recent. In 1975, a woman quit her job at Cornell University after enduring years of unwanted advances from her boss, including alleged acts that might be deemed sexual assault today. She filed for unemployment benefits, but was denied after the university asserted that she quit for “personal reasons.” A group of women employed by the university rallied to her defense, founding a group called Working Women United. The group held meetings at which women shared their workplace experiences. The term “sexual harassment” appeared out of these meetings.

Workers in the restaurant industry, particularly servers, depend on tips for their income. Under both state and federal law, employers are not required to pay the full minimum wage amount to employees who customarily receive tips. Instead, they pay a “tip credit” that, when combined with a worker’s tip income, totals at least the minimum wage. This can put restaurant workers in a vulnerable position. A restaurant server may worry about lost income if they object to harassment by a customer. A report published by Mic in late 2017 examined reports of sexual harassment by tipped restaurant employees. It found that restaurant workers have one of the highest rates of reported sexual harassment.

The federal Fair Labor Standards Act (FLSA) defines a “tipped employee” as one who “customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). Tipped employees’ compensation is a combination of wages paid by their employer and tips paid by customers. An employer of a tipped employee must pay a minimum wage, or tip credit, of $2.13 per hour, plus any additional amount needed to raise the employee’s total compensation to the minimum wage of $7.25 per hour. Id. at §§ 203(m), 206(a)(1)(C); 29 C.F.R. § 531.59. New York City mandates higher minimum wages than the FLSA. N.Y. Lab. L. § 652(1)(a). For tipped employees in New York City restaurants, the minimum wage as of December 31, 2017 is $8.00 per hour for employers with ten or fewer employees, and $8.65 per hour for those with eleven or more employees. The tip credit is $4.00 and $4.35, respectively.

Laws at the federal, state, and city level in New York City prohibit employment discrimination on the basis of sex. This includes sexual harassment in situations where unwelcome and pervasive sexual conduct creates a hostile work environment. A claim could arise from a single incident, if it is severe enough, but most hostile work environment claims are based on an ongoing pattern of behavior. The conduct that gives rise to a hostile work environment could come from one or more supervisors, coworkers, or customers. If, as is the case in the Mic report mentioned above, customers are responsible for the alleged hostile work environment, the employer must have known about the conduct and failed to act in order to be liable.
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