Navigating Employment
and Labor Law
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Employment Law Firm
Federal, New York State, and New York City laws protect employees from discrimination. These laws make it illegal to discriminate against an individual or a group—either as a job applicant or as an employee.
Relevant federal laws include the Equal Pay Act of 1963, Title VII of Civil Rights Act of 1964, and, as amended, 1991, Title VIII of the Civil Rights Act of 1968, adding familial status as a protected category, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1967.
The Equal Employment Opportunity Commission is the lead federal agency charged with enforcement of Title VII federal employment discrimination claims. In 1945, New York State created a state commission against discrimination to enforce state laws prohibiting employment discrimination. This commission was renamed the New York State Division of Human Rights in 1968.
In 1955, New York City created the Commission on Intergroup Relations (COIR) that was renamed the Commission on Human Rights in 1962.
Employment discrimination can have long-term, devastating effects on employees, and you should know the specific protections under the federal law and those of the State and City of New York.
What is Workplace Discrimination?
Discrimination is defined as taking an action or an inaction that’s based on a preference or prejudice. Federal and New York State laws provide that discrimination occurs when you’re treated differently in a manner that causes an adverse impact to you.
Discrimination on the job can take many forms and includes unfair treatment because of your protected status, including:
-
Race - National origin
- Color
- Religion
- Sex (including pregnancy, childbirth, and related medical conditions, marital or partnership status, sexual orientation, gender identity)
- Physical or mental disability
- Age (40 and older)
- Citizenship or immigration status
- Genetic information
- Status as a veteran or active military service member
What is “At-Will Employment”?
New York is what is called an “at-will” employment state. That means that, unless otherwise stipulated by contract, for any employment, New York employers typically have the right to discharge an employee at any time, for any reason—or for no particular reason—provided that it’s not a form of illegal retaliation or discrimination. If a firing is based on or because an employee is in a protected category, it’s known as wrongful termination.
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What is Retaliatory Discrimination?
These actions may be considered retaliatory in certain situations:
- Termination of employment;
- A reduction in work hours, compensation, or benefits;
- A change of schedule for less desired hours (working the graveyard shift);
- Reassignment to less desirable work location;
- More intensive or critical supervision;
- A demotion or transfer;
- Demanding increased production or quotas;
- The withdrawal of previously permitted privileges (or perks);
- The assignment to more difficult duties;
- Disciplinary action; or
- An employer’s threats to take any of the actions listed above, and/or threats to subject the employee to a lawsuit, criminal prosecution, or deportation.
The New York State Division of Human Rights says that it’s also illegal to retaliate against employees because they filed a discrimination complaint or participated in an investigation or lawsuit. Retaliation occurs when an employer punishes an employee because he or she engages in a legally protected activity.
New York State’s Human Rights Law prohibits retaliation, whether it’s for filing an internal complaint with an employer, or for filing a complaint with the State’s Human Rights Division. In addition, Section 215 of the New York State Labor Law makes it unlawful for an employer (or anyone on an employer’s behalf) to discharge, penalize, or in any way discriminate or retaliate against an employee for:
- Providing information to the New York State Division of Human Rights or the Department of Labor;
- Initiating a proceeding;
- Testifying in an investigation or other proceeding;
- Exercising any rights that are protected under New York Labor and Employment Law; or
- Causing the employer to receive an adverse determination from the Department of Labor.
What is Whistleblower Protection?
New York and federal law provide protection for whistleblowers. That’s a person (frequently an employee) who reports conduct that he or she thinks is unlawful — e.g., reporting fraud, improper billing practices, hazardous working conditions, or civil rights violations. It also includes reporting activities that threaten the public health, like toxic waste dumping.
What is a Reasonable Accommodation?
This term refers to actions taken by an employer that allow an employee or prospective employee with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held. Reasonable accommodations include the following examples:
- Provision of an accessible worksite;
- Acquisition or modification of equipment;
- Support services for persons with impaired hearing or vision;
- Job restructuring and modified work schedules;
- Adjustments to work schedule for treatment or recovery;
- Reassignment to an available position;
- Adjustment of examinations, training materials, or policies; and
- Providing readers or interpreters.
But these accommodations can’t impose an undue hardship on the business. Undue hardship is determined on a case-by-case basis. Some of the factors that the New York State Division of Human Rights may consider include but aren’t limited to the cost of the accommodation, lost productivity, and the number of employees who will need a similar accommodation.
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Reasonable Accommodation for Employee’s Religious Beliefs
In addition, New York and federal law require that employers make a reasonable religious accommodation for an employee’s sincerely-held religious beliefs, unless doing so creates an “undue hardship” on the employer.
The New York State Attorney General says that a reasonable religious accommodation is one that allows employees to follow their religious beliefs with a minor change to the work environment. Religious practices that may be accommodated include, but are not limited to, the following:
- The observance of the Sabbath and holy days (including travel time);
- Prayer requirements;
- Religiously mandated clothing or headgear; and
- Religiously mandated hairstyle and beard requirements.
An employee must inform his or her employer that the request for accommodation is based on religious beliefs. Employees also have the responsibility to help their employer to come up with a reasonable accommodation and allow sufficient time for this process to be implemented. Plus, the employee must understand the essential duties of his or her position, and know that the requested accommodation must not make it impossible for the employee to perform these essential duties.
Reasonable Accommodation for Veterans
In addition, the New York State Human Rights Law prohibits discrimination based upon military status, so veterans are protected from illegal discrimination.
Reasonable Accommodation for Pregnant Employees
Pregnancy discrimination is what is called a “familial status” form of discrimination under the New York State Human Rights Law. Pregnancy discrimination is also considered sex discrimination. It’s illegal for an employer to refuse to reasonably accommodate a medical condition related to pregnancy or childbirth (know as “pregnancy-related condition” … a common example is breastfeeding or pumping breastmilk at work). It’s also against New York and federal law to terminate an employee or refuse to hire an applicant because she’s pregnant or because of a pregnancy-related condition, or to discriminate in the terms, conditions, and privileges of employment because of pregnancy or childbirth. However, an employer can ask for supporting medical documentation of the restrictions imposed by the pregnancy-related condition.
Issues can also arise concerning disability and child care leave rights under the Federal Family and Medical Leave Act (FMLA).
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Frequently Asked Questions
What is Sexual Harassment?
Sexual harassment is an all too common issue in the workplace. More than 7,500 sexual harassment claims were filed with the EEOC (the U.S. Equal Employment Opportunity Commission) in 2018—a 14% increase from the prior year.
Sexually harassing conduct can take the form of unwanted verbal or physical sexual advances, sexually explicit statements or pictures, or discriminatory remarks that are offensive or objectionable to the recipient. Some other examples include:
- Unnecessary or inappropriate physical contact (such as hugging);
- Requests for sexual favors, which may be accompanied by implied or overt threats about a victim’s job performance, evaluation, or promotion;
- Making remarks about the attractiveness of others in front of an employee;
- Discussing one’s sex life in front of an employee or asking about the employee’s sex life;
- Making sexual jokes;
- Subtle or obvious pressure for unwelcome sexual activities;
- Verbal harassment or abuse in the form of a pattern of sexual comments or questions; and
- Showing offensive photographs or drawings.
In New York, harassing conduct is unlawful when it subjects an individual to inferior terms, conditions, or privileges of employment based on his or her belonging to a protected class(es), no matter if the action is “severe or pervasive” as defined in New York court decisions.
In addition, no one can aid, abet, incite, compel, or coerce unlawful discriminatory acts or try to do so.
The Human Rights Law applies to all employers within New York State—no matter how many employees a business has.
Also, effective August 12, 2020, the one-year statute of limitations or deadline for filing with the New York State Division of Human Rights a complaint was extended to three years for sexual harassment in employment cases.
Do the New York Harassment Laws Apply to Non-Employees?
Yes. An employer can’t allow sexual harassment of nonemployees in its workplace, and the employer may also liable for harassment of employees by third-parties such as vendors, clients, interns, consultants, and guests.
Does New York Require Sexual Harassment Prevention Training?
Yes. Employers must provide sexual harassment prevention training to all their employees on an annual basis. This training program must be interactive and include the following:
- An explanation of sexual harassment that’s consistent with department-issued guidance;
- Examples of conduct that are deemed to be unlawful sexual harassment;
- Information about federal and state remedies available to victims of sexual harassment;
- Information about employees’ rights to seek remedies for sexual harassment;
- Information about all available forums for adjudicating sexual harassment complaints; and
- Information addressing supervisors’ conduct and responsibilities concerning sexual harassment.
What is Gender Identity Discrimination?
A more recent addition to the categories that are protected under New York law is gender identity or expression. This is defined as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”
New York law now makes it unlawful to discriminate against an individual because of gender identity or expression, which can include any of the following actions or inactions:
- Asking questions about gender identity or expression, or assigned sex at birth, such as in a job interview;
- Refusing to hire an individual for a job;
- Terminating an individual’s employment;
- Denying the use of restrooms or other facilities consistent with a person’s gender identity;
- Making, or requesting that, a transgender person use a single-occupancy restroom because of someone else’s concerns;
- Requiring individuals to show medical or other documents in order to use facilities, such as restrooms consistent with their gender identity;
- Applying grooming, uniform, or appearance standards based on sex stereotypes;
- Providing benefits, leave, or reasonable accommodations that are different based on gender;
- Refusing to use an individual’s requested name or pronouns (“Misgendering”); or
- Subjecting an individual to harassment at their place of employment.
What Types of Damages are Available if I’m a Victim of Employment Discrimination?
- Compensatory damages. This type of award pays employment discrimination victims for expenses incurred as a result of the discrimination, like lost wages and benefits, the costs of a job search, or related medical expenses. These damages also compensate employment discrimination victims for any emotional harm suffered, such as mental anguish, inconvenience, or loss of enjoyment of life.
- Back Pay and Lost Wages. This is prior wages or benefits an employee is due. This can be overtime wages, minimum wages, bonuses, or increments.
- Front pay. This award includes compensation that would’ve been paid to the employee if there had been no discrimination by the employer. Front pay is typically awarded when reinstatement cannot happen because a workplace is too hostile or there is no available positions for the victim.
- Punitive Damages. These damages may be awarded against private employers. This award is designed to punish or deter the employer from future discrimination. There is now no cap or limit to the amount of a punitive damages award for employment discrimination.
- Attorney’s Fees. Reasonable expenses for hiring legal counsel, court costs, and witness fees may be awarded in all employment discrimination cases.
Takeaway
Wrongful termination occurs if an employee’s firing violates federal or New York law that’s designed to protect employees. Again, New York is an at-will employment state. However, employees still have the right to be protected against any illegal acts by their employer, including subjecting them to treatment that’s based on race, sex, age, gender, sexual orientation, ethnicity, religion, gender identity, veteran status, or disability.
Ely J. Rosenzveig, Principal
Contact Us Today
If you believe that you have suffered discrimination at work, please contact our office today. We offer experienced, determined, passionate, and zealous advocacy that will leave no stone unturned in our representation of your interests.
Also, for help in negotiating an executive employment package, or in negotiating the terms of severance in a prospective employment termination, speak with one of our experienced employment law attorneys. We can assist you with:
- negotiating an executive employee compensation and benefits package;
- negotiating salary and benefits, such as wages, pension benefits, vacation time, bonuses, flex time, and maternity or paternity leave benefits;
- negotiating promotions;
- seeking work condition enhancements or improvements; and
- negotiating favorable terms in severance agreements.