New York Enacts Broad Changes to New York Human Rights Law

Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?

A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment.  Governor Cuomo has not yet signed the bill, but is expected to shortly.

As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.

Definition of Harassment

The NYHRL currently prohibits harassment based on gender, race, religion, sexual orientation, gender identity or expression, or national origin. The amendments expand these protected categories to include age, creed, color, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because an individual has opposed any practices prohibited by the NYHRL or participated in any proceeding under the NYHRL.

The amendments also significantly expand the definition of harassment. Currently, to prove harassment under the NYHRL, a plaintiff must demonstrate that the harassment was “severe and pervasive.”  Under the amendments, a plaintiff need only show that the harassment “subjects an individual to inferior terms, conditions, or privileges of employment.”  Employers will no longer be permitted to rely on the affirmative defense that the employer had an effective complaint procedure, the individual did not take advantage of it, and there was no adverse employment action.  Rather, the employer’s only affirmative defense is if the harassing conduct “does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”  Lowering the standard from “severe or pervasive” harassment to harassment that rises above “petty slights or trial inconveniences” greatly expands the universe of potential harassment claims and aligns the New York state law with the standards set forth in the New York City Human Rights Law.

The new definitions will be effective 60 days after the bill become law.

Definition of Employer

The amendments remove the NYHRL’s current carve-out for employers with fewer than four employees. Beginning 180 days after the bill become law, the NYHRL will apply to all employers regardless of size

Inclusion of Non-Disclosure Clauses in Settlement Agreements

New York employers may recall that, in 2018, the state passed a new law prohibiting non-disclosure provisions in any settlement agreement of a sexual harassment claim unless the complainant prefers to include the provision, has 21 days to consider it, and has a seven-day revocation period. The amendments expand these prohibitions to settlement agreements of any discrimination claim, rather than just claims of sexual harassment.  In addition, non-disclosure provisions are void to the extent that they prohibit or restrict the complainant from participating in an investigation by a government agency or disclosing any facts necessary to receive unemployment insurance or other public benefits.

These changes will be effective 60 days after the bill becomes law.

Sexual Harassment Training

The amendments expand upon last year’s new law requiring employers to give annual sexual harassment training. Employers will be required to train employees and distribute policies in the employees’ primary language.  The New York Commissioner of Labor will create versions of the template sexual harassment training and policy in other languages.  If there is not a template available from the Commissioner in an employee’s primary language, the employer can provide the policy and training in English.

Statute of Limitations

Effective one year after the bill becomes law, the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights will be increased to three years, as compared to the current one year statute of limitations.

Steps for Compliance

To prepare for the amendments, employers should review and update all relevant policies and training materials. While anti-harassment should always be an area of focus for employers, employers should be especially aware of any potentially harassing situation given the forthcoming lower standard for harassment under New York State law.

Jessica Rothenberg

Hair Styles May Be Protected Under Discrimination Laws

Q: Is it lawful to require employees or applicants to style their hair in a certain manner?

A: As with most employment-related questions, the answer is it depends.  While employers are generally allowed to adopt basic grooming policies, employers should seek to adopt policies that do not have a disparate impact on minorities and other persons protected by anti-discrimination laws.

In February 2019, the New York City Commission on Human Rights (“Commission”) generated headlines by releasing a legal enforcement guidance on race discrimination on the basis of hair.  The guidelines are designed to prohibit workplace grooming policies that may discriminate against Black people.  The Commission defines the term “Black people” to “include those who identify as African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.”  Per the Commission: “Bans or restrictions on natural hair or hairstyles associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”  The Commission takes the position that the New York City Human Rights Law (“NYCHRL”) protects the right of Black people to maintain their natural hairstyle, which “includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

According to the Commission, grooming or appearance policies that ban, limit, or prohibit natural hair and hairstyles often associated with Black people violate the NYCHRL anti-discrimination provisions, including the section prohibiting discrimination in employment. Employers prohibiting employees from wearing their hair in cornrows, Afros, and other hairstyles associated with Black people risk facing liability under the NYCHRL.  The Commission stated: “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”  Under the NYCHRL, it is therefore discriminatory to refuse to hire a Black applicant with cornrows because the hairstyle does not project the “image” that a Company is trying to represent—and companies may not use customer preference or health and safety concerns as an excuse for a prejudiced policy.

The Commission noted in a footnote of its legal enforcement guidance that grooming or appearance policies that “generally target communities of color, religious minorities, or other communities protected under the NYCHRL are also unlawful.” The Commission gave as examples: (i) a Sikh applicant being denied employment because of his religiously-maintained uncut hair and turban, (ii) an Orthodox Jewish employee ordered to shave his beard and cut his payot (sidelocks and sideburns), (iii) a salesperson being required to shave his beard despite a medical condition that makes it painful to do so, (iv) an older employee with gray hair being threatened that she will lose her job if she does not color her hair, and (v) a male server being ordered to cut his ponytail where similar grooming policies are not imposed on female servers.

This is not the first time a government agency has attempted to remedy employment discrimination related to Black hairstyles. In 2013, the United States Equal Employment Opportunity Commission (“EEOC”) unsuccessfully brought suit against an Alabama insurance claims company because the insurance company allegedly violated Title VII of the Civil Rights Act by discriminating against a Black applicant because she wore dreadlocks. See EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018 (11th Cir. 2016).  In that case, Plaintiff Chastity Jones was offered a position as a customer service representative.  Prior to her start date, Ms. Jones was advised that the company did not permit dreadlocks and that she needed to cut them.  When Ms. Jones refused to cut her hair, her job offer was rescinded.  Although recognizing that dreadlocks were a common hairstyle worn by Black people, the Eleventh Circuit Court of Appeals (covering employers in Alabama, Florida, and Georgia) ultimately concluded that dreadlocks were not an immutable characteristic, and that the EEOC could not state a claim for intentional race discrimination against a company seeking to enforce its “race-neutral” grooming policy.  The United States Supreme Court declined to hear Ms. Jones’ appeal.

Although the NYCHRL only covers employers with four or more employees in New York City, employers nationwide should pay close attention to the Commission’s guidance as it could influence courts and other government agencies throughout the country. Before implementing any grooming policies—including those that could adversely impact individuals in a protected category of employment—Human Resources professionals should consult with qualified legal counsel to adopt lawful policies that do not create a “hairy” situation.

–Lee Tankle

Inconsistent Factual Accounts Could Support an Inference of Retaliation

Q.  Is there anything I should look out for in documenting my legitimate business reason for terminating an employee?

A.  The United States Appeals Court for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently issued an opinion that serves as a warning that inconsistent explanations of an employer’s reason for an adverse employment decision could support an inference of retaliation. In Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018), the plaintiff filed an internal complaint with the company’s human resources department that a manager was harassing a female coworker. The human resources director investigated the complaint and the company then terminated the manager, albeit with a hefty severance package.  Shortly after the termination, however, the plaintiff also was terminated.  The company claims that it fired the plaintiff for taking improper photographs of the CEO of a vendor, who was drunk at a work event approximately six weeks prior to plaintiff’s harassment complaint.

This is where the story shifts. In its response to the EEOC charge, the company alleged that the plaintiff showed the pictures she had taken to her supervisor on the night of the party and that he told her to delete them.  At his deposition, however, the supervisor claimed that he did not see the pictures on the night of the party.  Rather, he heard about them from coworkers, and told the human resources director about them.  The human resources director, on the other hand, testified at her deposition, that she learned about the photographs from another employee during his exit interview and decided to investigate the issue.

Plaintiff claimed that her supervisor and the human resources director knew about the photographs prior to the investigation and approved of them. It was not until after plaintiff brought the harassment complaint – in fact one day after the manager was terminated – that the human resources director initiated an investigation into the purportedly improper photographs.  Plaintiff argued that this timing was suspicious, and supported her claim that she was terminated for bringing the harassment complaint to the attention of the human resources director.

The lower court granted summary judgment to the employer. The Seventh Circuit reversed, however, finding that there was a disputed issue of fact whether the employer used the photographs – which it had previously approved – as a pretext for the termination.  According to the Court:  “[A]n employer’s shifting factual accounts and explanations for an adverse employment decision can often support a reasonable inference that the facts are in dispute and that an employer’s stated reason was not the real reason for its decision.”

Lessons learned? Retaliation claims can be difficult to defend, particularly when the adverse employment action occurs close in time to the employee’s protected activity.  When executing an adverse employment decision, employers should make sure that the adverse action is supported by a legitimate business reason.  Moreover, when defending this decision in a subsequent agency proceeding and lawsuit, it is important to create a consistent factual record of the stated reason for the decision.

— Tracey E. Diamond

 

New Pa. Guidance Interprets Anti-Discrimination Law to Cover LGBT Individuals

Q.  Does Pennsylvania State law protect employees against discrimination based on their sexual orientation and gender identity?

A.  The PHRC, however, recently released new guidance expanding the definition of the term “sex” under the Act to include LGBT status. The PHRC is an agency of the executive branch of the Pennsylvania government under the direction of Governor Tom Wolf. The new PHRC guidance broadens the definition of “sex” under the Act to include “sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and/or gender expression depending on the individual facts of the case.” As a result, the PHRC now takes the position that the Act prohibits “discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.” The guidance announces that the PHRC will accept sex discrimination complaints from individuals alleging discrimination based on their LGBT status, and employers will be forced to defend those complaints.

For more information, please click here.

Lee E. Tankle

Let Them Eat Cake: U.S. Supreme Court Admonishes Colorado Civil Rights Commission to Avoid Anti-Religious Bias

Q: Can an employer discriminate against members of the LGBT community on the basis of the employer’s religious beliefs?

A.  On June 4, 2018, the United States Supreme Court ruled in favor of a bakery that refused to bake a wedding cake ordered by a same sex couple because of the baker’s religious beliefs. The baker argued that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and that it would also violate his right to the free exercise of religion. The opinion was eagerly anticipated, as it was expected that the Court would provide some clarity on the question of whether an LGBT individual’s right to be protected from discrimination trumps an employer’s or business owner’s exercise of its sincerely-held religious belief.  The Court failed to address the substantive First Amendment issue, however, and instead focused its decision on the Colorado Civil Rights Commission’s failure to remain a neutral decision-maker.

In Masterpiece Cakeshop, Ltd, et al. v. Colorado Civil Rights Commission et al., a Colorado bakery owned and operated by a devout Christian refused to create a wedding cake for a same sex couple because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize.  The couple filed a charge with the Colorado Civil Rights Commission, pursuant to the Colorado Anti-Discrimination Act (CADA),which prohibits discrimination based on sexual orientation, not only in employment, but also in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”  The Commission ruled in the couple’s favor, concluding that the shop’s actions violated CADA.  The Colorado state court affirmed the ruling.

The U.S. Supreme Court reversed the decision, however, siding with the baker. The Court focused on comments made by the Commission that were disparaging towards the baker’s religious beliefs, concluding that the Commission had failed to apply state laws in a manner that was neutral towards religion.  According to the Court, while “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that “the exercise of their freedom on terms equal to others must be given great weight and respect by the courts,” in ruling in favor of the same sex couple, the members of the Commission displayed open hostility towards religion.

The Court focused on comments by one commissioner during a public meeting on the case that “[f]reedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust… it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Court noted that:  “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical – something insubstantial and even insincere. . . .  This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”

The Court also observed the Commission’s difference in treatment between this case and the cases of other bakers, where the Commission upheld the bakers’ conscience-based right to refuse to bake cakes with anti-gay messages. The Court found that the Commission’s treatment of these cases was inconsistent, and reflect a bias against Masterpiece Cakeshop’s religious beliefs.  Accordingly, the Supreme Court held that the Commission’s treatment of the case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The Masterpiece Cakeshop case is a very narrow decision, and failed to address the underlying issue at stake – whether the First Amendment’s free exercise and free expression clauses protect the baker’s right to deny services to same-sex couples.  In fact, the Court concluded its opinion by stating that: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Although we will have to wait for future decisions to address the underlying Constitutional issues at play in this case, the Court expressly reaffirmed that certain laws provide protection for LGBT individuals against discrimination, while also noting that these laws must be applied in a manner that is neutral toward religion.  Regardless of the narrow grounds upon which the Supreme Court decided this particular case, we recommend that employers treat sexual orientation and gender identity and expression as protected classifications.  The EEOC has issued guidance finding that Title VII’s protections against discrimination “based on sex” extend to LGBT individuals, and numerous Circuit Courts of Appeals have extended Title VII’s reach in this manner.   Moreover, state statutes and local ordinances in many jurisdictions expressly prohibit discrimination based on sexual orientation and gender identity.

Tracey E. Diamond

Kali T. Wellington-James