New York City Human Rights Law

Yesterday,  I spent a large part of my day talking about harassment training.  Between completing a pitch for new work and scheduling training for existing clients, the questions I faced most were the following:

  1. Where is training required?
  2. How often should an employer do training?
  3. Where training is required, does the training have to be “live”?

With regard to the first question, even in this #metoo era where law makers have struggled to be proactive, the vast majority of states/cities do not have laws requiring harassment training.  In fact, only a handful of jurisdictions require that employees be trained on harassment and discrimination.  Earlier this year, New York State joined California, Connecticut and Maine and will require that employers provide training.  Details about those requirements can be found in our previous blog post here.

Not to be outdone, a few weeks later, the NYC City Council passed a law requiring annual harassment training.  On May 9, Mayor de Blasio, signed the bill into law.  The bill requires employers with 15 or more employees to provide annual harassment training beginning on April 1, 2019.

At least, in NYC, the second question has been affirmatively answered.  It is not yet clear if the New York state law will require annual training or some other frequency.  California requires supervisor training every two years. Maine requires training of all employees, but only requires it within the first year of hire and not on an annual basis.  Likewise, Connecticut requires two hours of supervisory training within six months of an employee obtaining a supervisory position.

That being said, even in jurisdictions where training is not required or is not requires on an annual basis, training should be regularly refreshed.  This helps insure that new hires receive the training but also that employees do not get too relaxed with their co-workers and slip into inappropriate conversations.

I have seen increasingly in litigation that Plaintiffs’ attorneys are attacking the lack of or infrequency of training to argue that the employer condoned harassment and did not have an effective complaint procedure.

The NYC and New York State laws also answer the question of whether training must be live (there is no requirement for live training in California, Connecticut or Maine).  Although training does not have to be live, it does have to be interactive or “participatory.”

The question is what is participatory?  Although the law specifically notes that a live facilitator is not necessary, and the Commission will develop a model training policy, it would seem that at the least an employee should have the opportunity to answer/ask questions.

In my experience, the more interactive training sessions are those that provide real life scenarios for employees to discuss and for managers to discuss how to handle. I think that is difficult to do in an online setting. I’m not saying that there is not a place for online training, I just think that employers should think about augmenting it with live or video conference sessions.

I liken it to the last time you got computer training on a new program.  If you are like me, you can read the instructions from your IT department and seemingly understand it in the training session you are provided, but until you are actually using the computer program on a daily basis, it is difficult to say that you truly understand the program.

As I mentioned above, the Commission will be developing a model online training policy that will set the floor for what NYC employers will be required to cover in the training.  We will keep you posted when that is issued.

Several recent New York City human rights law amendments in the past year have steadily increased worker protections applicable to New York City employers. As is no surprise, the mayor’s office recently adopted yet another new amendment passed by the New York City Council amending the New York City Human Rights Law (NYCHRL) effective October 15, 2018.

What is particularly noteworthy here are the administrative obligations placed on New York City employers under this new law. Once effective, New York City employers are required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation (whether for disability-related, religious, or other covered reasons) and to document that process. Employers with operations in New York City should be aware of these new changes and grow accustomed to their administrative burdens prior to the enactment’s effective date.

Under the NYCHRL, as most New York City employers are already aware, reasonable accommodations (such as workplace rule changes and unpaid leave) must generally be provided to employees for any covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a disability; (3) as a result of pregnancy, childbirth or a related medical condition; or (4) as a result of domestic violence, sex offenses or stalking. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.

However, the new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

That last part, involving required written determinations, is likely to be the most difficult issue for employers (from an administrative standpoint). While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law.

If prior to the effective date additional guidance is issued by the New York City Commission on Human Rights that helps clarify or to mitigate the law, we will prepare a follow-up to this piece. Otherwise, employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.

5 DiscriminationAs we wrote about last week, the New York City Council passed legislation seeking to bolster the New York City Human Rights Law (NYCHRL).  Although the NYCHRL was already one of the most employee friendly statutes in the nation to begin with, especially in light of the 2005 Local Civil Rights Restoration Act, the legislature decided it was time to make New York City even friendlier to bring a discrimination claim.  Mayor Bill de Blasio has now signed into law several amendments (five to be exact) that push the NYCHRL further, three expanding its employment discrimination protections, one with respect to public accommodation discrimination, and one regarding housing discrimination.

Int 814-2015 amends the NYCHRL to explicitly state that any and all exceptions and exemptions found in the statute must “be construed narrowly in order to maximize deterrence of discriminatory conduct.”  This new law also codifies directly into the NYCHRL three notable decisions that purportedly embody the NYCHRL’s broad protections: Bennett v. Health Management Systems, Inc., 92 A.D.3d 29 (1st Dep’t 2011); Albunio v. City of New York, 16 N.Y.3d 472 (2011); and Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009).  This provision is effective immediately.

Int 818-2015 modifies the NYCHRL to now allow attorneys’ fees and expert fees in an administrative proceeding before the New York City Commission on Human Rights. This mimics the attorneys’ fees that were previously available to a prevailing plaintiff in a state or federal court action.  This provision is effective immediately.

Int 819-2015 repeals several NYCHRL provisions which previously interpreted and limited the reach of the law’s sexual orientation protections.  This new law eliminates various exceptions and clarifications in the NYCHRL that stated, among other things, that an employer could insist an employee meet a bona fide job-related qualification based on sexual orientation, an employer was not required (or allowed) to establish affirmative action quotas based on sexual orientation, and that an employer was not subject to the law if it employed fewer than four persons or was a religious, charitable, or educational institution operated, supervised, or controlled by a religious organization.  However, these prior exclusions have all been removed.  This provision is effective immediately.

Int 805-2015 expands the public accommodation protections under the NYCHRL to franchises, franchisees and lessors.  Moreover, this amendment states that businesses cannot deny full and equal enjoyment of all services, facilities, and/or privileges at public accommodations based on any protected characteristics.  Even more striking is the expansion of the prohibitions against discriminatory advertisements.  Any marketing language that indicates any individual is unwelcome, objectionable, not acceptable, undesired, or unsolicited because of such person’s actual or perceived protected characteristics, is now unlawful.  This provision is effective July 26, 2016.

Finally, Int 832-2015 amends the housing discrimination provisions in the NYCHRL to now preclude owners, lessors, managing agents, and real estate agents from discriminating against victims of domestic violence, sex offenses, and/or stalking.  This provision is effective July 26, 2016.

Links to the new enactments are provided above.  While an expanding NYCHRL is nothing new, employers should be continually wary and ensure they are prepared to deal with New York City’s uniquely protective employment and other discrimination laws.  Even one misstep may result in a discrimination claim that will be incredibly difficult to defend.  Remember, at least in New York City, this includes reviewing all language in advertisements or other marketing materials that could potentially run afoul of the expanded public accommodation protections.  We will of course keep you updated as these new provisions are interpreted by the courts.

Legislation

As a nice follow-up on New Jersey’s proposed expanded equal pay and discrimination protections that my colleague Christina Stoneburner wrote about yesterday, New York City appears to be following suit and will be bolstering (yet again) the New York City Human Rights Law (NYCHRL).  On March 9, 2016, the New York City Council passed (with only one dissenting vote) a bill that reaffirms the liberal and uniquely broad nature of the NYCHRL.  If signed into law, this amendment will ensure that New York City’s local anti-discrimination law will become even more employee friendly in the years to come.  The bill is currently awaiting Mayor Bill de Blasio’s signature.

Back in 2005, the New York City Council enacted the Local Civil Rights Restoration Act, which found that the broad and unique remedial purposes of the NYCHRL necessitated a separate and employee friendly construction of the statute by the Courts. This contradicted many cases at the time that interpreted the NYCHRL similarly to federal and state law counterparts.  After its enactment in 2005, the courts grappled with just how far this liberal interpretation was meant to go.  Most courts interpreted the NYCHRL as instructed, weakening the customary defenses available to employers and curtailing their ability to defend even the most threadbare of discrimination and/or harassment claims.

Despite numerous incredibly employee friendly decisions since then, the New York City Council has now found it necessary to go even further. The Council’s proposed bill would amend the NYCHRL to explicitly state that any exceptions or exemptions found in the statute must “be construed narrowly in order to maximize deterrence of discriminatory conduct.”  In addition, this proposed law would also codify directly into the NYCHRL three notable decisions that purportedly embody the NYCHRL’s broad protections: Albunio v. City of New York, 16 N.Y.3d 472 (2011); Bennett v. Health Management Systems, Inc., 92 A.D.3d 29 (1st Dep’t 2011); and Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009).

This is certainly nothing new or unexpected for any employer that has had to deal with New York City’s uniquely protective laws. However, added caution when dealing with any harassment or discrimination issue, particularly in New York, is always welcomed and will make your friendly neighborhood employment attorneys happy.  We will of course update you once the mayor formally signs this proposed legislation into law.

TransMayor Bill de Blasio and the New York City Council have made no secret of their desire to expand the reach and protections offered by the New York City Human Rights Law (“NYCHRL”).  This year saw the expansion of these protections, such as bans on using, or even inquiring about, individuals’ credit and criminal background information in many employment decisions. Given this flurry of recent added protections, one would expect there would be no new regulatory hurdles for employers ushered in as the year winds down.  However, the New York City Commission on Human Rights (“the Commission”) decided to provide one last surprise, issuing new enforcement guidelines under the NYCHRL as we say goodbye to 2015.  Entitled Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression, these new guidelines set forth various forms of conduct by employers (as well as landlords and businesses in general) that the Commission finds to be discriminatory based upon gender, gender identity, and/or transgender status.

As most employers in New York City are aware, existing law prohibits employers from terminating, refusing to hire or promote, or setting different terms of employment because of an individual’s actual or perceived status as a transgender person. This new guidance, however, targets less obvious forms of harassment and discrimination based on gender, gender identity, and/or transgender status, which now also run afoul of the law, including: (i) refusing to use a transgender employee’s favored name, pronoun and/or prefix; (ii) prohibiting a transgender employee from using a single-sex bathroom or locker room, even if inconsistent with their biological sex; (iii) imposing uniform or grooming standards based on an employee’s biological sex or gender; and/or (iv) considering an employee’s actual or perceived transgender status in employee benefits or when evaluating a request for accommodation.  For example, health benefits and leave must be extended on a non-discriminatory basis for transition-related care and/or gender-affirming care.  For many employers, particularly in the restaurant and hospitality industries, the new limitations on uniform and grooming standards will come as a shock.  Frequently uniform and grooming codes in the restaurant and hospitality industries will specify “neckties required for men” or “earrings allowed for women only,” which now appear to be verboten.

It is critically important for employers to review their employment policies immediately (or at least once the champagne has worn off tomorrow) to ensure compliance with the Commission’s new guidance.  You definitely don’t want to risk the draconian penalties, i.e. up to $250,000 where such conduct is found willful, wanton and/or malicious.  If you have any questions regarding the Commission’s new guidance, please reach out to an attorney in Fox Rothschild’s labor and employment department to assist you.  With that, and most importantly, a happy and healthy New Year to you and your loved ones.

27485319_sLawyers, and I suspect a good deal of employers, watched the Marchuk v. Faruqi & Faruqi case with a great deal of interest.  The allegations after all were quite scandalous — namely that Juan Monteverde, one of Faruqi’s high profile partners, had sexually harassed Marchuk and raped her.  Some of the interest may have been little more than schadenfreude as Faruqi & Faruqi have certainly made their share of enemies trolling for class actions against corporate giants.

Now that the verdict has come in and it was rather non-spectacular given the allegations, defense lawyers may be celebrating that a jury rejected most of the claims and only awarded a total of $140,000. Above the Law has tracked down a juror to explain the verdict, especially given the rape allegations. There is probably a lot of interest in reading the juror’s tale, most notably the rare glimpse inside jury deliberations.

What should be of note to employers is that the mere fact that the jurors did not 100% believe Marchuk did not preclude them from finding liability against the Firm.  Instead, the jurors really delved into the evidence to see if that supported a verdict under the employee-friendly New York City Human Rights Law.  The jurors understood that the law is much more lenient than state or federal law.

However, this case is not only a cautionary tale for New York City employers, but it is a reminder to employers and all of us defense attorneys not to fall in love with only a certain aspect of  their case.  The juror interviewed noted that there were several inconsistencies in Marchuk’s story regarding the rape and that was what led them to come to the conclusion that the sex had been consensual.  However, the defense attorneys also tried to paint a picture of a woman who was only looking for a payday by introducing evidence that she joked she was going to Hawaii with the settlement money.  This evidence was roundly rejected by the jury.

I have been involved in many investigations and lawsuits where clients have discovered that perhaps an employee was not truthful on one minor issue.  Clients begin to convince themselves that this one misstep means that no one will ever believe the rest of the story.  This may be true, but it may not be when you look at the totality of the circumstances.  After all, jurors are human beings, most of whom have told partial truths about minor incidents, whether intentionally or not, but still expect people to believe them when they raise serious complaints.  To borrow from the title of a much-ballyhooed movie currently in theaters, there are 50 shades of gray.

When evaluating risk of exposure in a lawsuit, employers need to look at the big picture.

14745558_sThis week employers in the Tri-State area have two new laws to contend with, the Jersey City sick leave ordinance and the New York City Pregnant Workers Fairness Act.  The Jersey City law went into effect on January 24, 2014 and the NYC law went into effect on January 30, 2014.  For those employers unaware of the new laws, see our December 11, 2013 and September 25, 2013 posts.   

Employers contending with tracking accrued sick time and accommodation requests under the new laws may be feeling a lot like Blaze the Husky and want to throw yourselves on the ground and refuse to go to work.

 We just wanted to say that we understand the urge to act like this: http://youtu.be/hCRDskZrUMU

Two weeks ago we wrote about the (in)famous decision of a federal judge in NYC who recently ruled that an unpaid female intern who alleged sexually harassment by a company higher-up was not an “employee,” and therefore had no claim for hostile work environment under the New York City Human Rights Law (N.Y. City Admin. Code § 8-101 et seq.) (“NYCHRL”).

The Court held that “The plain terms of [the city law] § 8-107(1)(a) make clear that the provision’s coverage only extends to employees, for an ‘employer’ logically cannot discriminate against a person in the “conditions or privileges of employment” if no employment relationship exists.

Indiana University Law professor Deborah Widiss said that “It reveals a very important gap [in the harassment laws] that I think needs to be addressed.”   We noted that this “loophole” was cited by city and state politicians who promised remedial legislation.

9553419_sNow it has been reported that state legislators introduced a bill which would “fill the gap” by prohibiting employment discrimination against unpaid interns on the basis of gender, race, age, sexual orientation, disability, marital status, and military status, and explicitly prohibit any “conduct of a sexual nature” toward an intern.  The lead sponsor of the legislation called interns an “extremely vulnerable class of workers” and stated that “there needs to be universal agreement and swift action when the Legislature returns to Albany in January.”

 

 

 

Rarely do federal court decisions go viral, but this one did.

A federal judge in NYC recently ruled against an upaid female intern who alleged sexually harassment by a company higher-up.  The Court held that because she was not an “employee,” she had no claim for hostile work environment under the New York City Human Rights Law (N.Y. City Admin. Code § 8-101 et seq.) (“NYCHRL”).  The media and pundits on all sides had a feeding frenzy.

20026483_s

THE ALLEGED HARASSMENT

Plaintiff was an unpaid intern at the defendant media conglomerate.  After about two weeks, the chief of the company’s New York and Washington bureaus “suggested that he and Ms. Wang go back to his hotel because he needed to drop off his belongings.”  She was uncomfortable but felt she had to go with him.  He began speaking suggestively to her, and at his hotel room he “took off his shirt jacket and undid his tie. … and suddenly exclaimed, ‘Why are you so beautiful?’ and threw his arms around Ms. Wang. … [He] then held Ms. Wang tightly for roughly five seconds and tried to kiss Ms. Wang by force … [and] then squeezed Ms. Wang’s buttocks with his left hand.”   All of this, she claimed, was unwanted and harassing, and created  a hostile work environment.

THE DECISION OF THE COURT

Plaintiff being an unpaid intern, however, and not an employee, created “an issue of first impression in the Second Circuit and in the New York courts,” stated the federal judge, since nothing in the plain language or legislative history of the city law suggested that it created a cause of action in favor of “non-employees.”  And this was true even under the expansive city law “whose provisions must be broadly construed in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.”

“The plain terms of [the city law] § 8-107(1)(a) make clear that the provision’s coverage only extends to employees, for an ‘employer’ logically cannot discriminate against a person in the “conditions or privileges of employment” if no employment relationship exists.

Plaintiff therefore did not take the position that a non-employee was covered under the law, but contended that the element of compensation is not the only evidence of employment; that “the proper analysis is one that considers the other indicia of an employment relationship under the preexisting test for NYCHRL claims — hire, power of dismissal, and supervision and control of tasks performed and balances those factors along with whether the plaintiff was compensated.”

The Court did not agree with her contention:  “Ms. Wang is unable to cite a single case—and the Court is not aware of any—in which a court has applied this balancing test to the claims of an unpaid intern. This is because this balancing test is used to determine whether a defendant is actually a plaintiff’s “employer” under the state and local civil rights laws, not whether a plaintiff may be considered an employee under those statutes in the first instance. … Application of the four-factor test … is only appropriate once a plaintiff has, in the first instance, demonstrated the existence of the ‘essential condition’ of remuneration.”

THE DECISION’S AFTERMATH

Although the news media and pundits pounced, it certainly appears that the case was decided correctly as a legal matter since the city law clearly did not cover unpaid persons, even if, as some said, it should have.  Indiana University Law professor Deborah Widiss said that “It reveals a very important gap [in the harassment laws] that I think needs to be addressed.”

And address it they will, said various NY city and state politicians.  NYC Mayoral front-runner Bill de Blasio said that “No one should ever be denied protection against sexual harassment in the workplace. Period.”

One City council member said she would propose a law filling this gap, and two New York State Assembly members said that they too would propose a new state law to address this issue which the federal court exposed in its decision.

 

 

By a 47-0 vote, the NYC Council passed a bill which allows women who request a reasonable accommodation for their pregnancy or while after childbirth to sue for discrimination or file a complaint with the NYC Commission on Human Rights if they suffer an adverse employment action.

As with accommodation provisions in federal laws such as Title VII, an accommodation must be “reasonable” and impose no “undue hardship” on employers.  The law would apply to all businesses with four or more employees, including independent contractors.

Christine Quinn, City Council President (who recently ran for and lost the Democratic primary for Mayor) said that “This bill will ease the burden on pregnant women by making it easier for them to request accommodations without fear of repercussions.”

Said the executive director of NOW-NYC:  “The changes that we are talking about are simple — an extra bathroom break, the permission to carry a water bottle, or to be able to use a stool instead of standing all day. These are all real examples of simple accommodations pregnant women asked for and were denied on the job.”

21246731_s