“Give me your tired, your poor, your huddled masses yearning to breathe free” –– A Broad Overview of Workplace Protections for People Employed in New York State and New York City
In the wake of the presidential election, there are many questions regarding which laws will be affected by the new administration. There are growing concerns that any progress that has been made in areas of civil rights, such as race relations, gender equality, and LGBTQ rights, will come to halt next January. Legal protections are available to individuals at different levels of government––federal, state, and city. New York State and New York City historically have been at the forefront of providing protections to vulnerable groups of people.
Today, New York State and New York City generally have broad anti-discrimination laws that protect individuals from unlawful activity in the workplace. The government agencies, such as the New York State Division of Human Rights and the New York City Commission on Human Rights, charged with enforcing these laws make it easy for individuals to file complaints and provide guidelines for employers to use. These laws contain private rights of action––meaning individuals can file court actions on their own or through employment lawyers in federal or and/or state court––and, in certain instances, a court may award attorneys’ fees to a prevailing party.
Below is a broad overview of some of the laws that affect individuals’ employment law rights.
Employees should familiarize themselves with these laws to understand what protections they have under New York State and New York City laws, and to recognize whether their rights have been violated. New York State and New York City employers, or employers outside the city and/or state with employees in the New York, should be aware of these laws to understand which employment decisions or the implementation of workplace policies may expose them to potential liability.
New York State Human Rights Law (NYSHRL). The NYSHRL applies to employers with 4 or more employees (1 or more in cases of sexual harassment). This law prohibits covered employers from engaging in discriminatory conduct on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, familial status, history of criminal conviction, or domestic violence victim status. The law also protects against discrimination based on a person’s gender identity. For example, a person may not be denied employment because of they are transgender, or an employee may not be terminated because his spouse is in a protected category. Likewise, it is unlawful to terminate an employee because she is pregnant or deny her a reasonable accommodation for a pregnancy related condition.
New York City Human Rights Law (NYCHRL). The NYCHRL applies to employers with 4 or more employees. It prohibits employment discrimination on the basis of age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status, caregiver status, history of criminal conviction, and consumer credit history.
Additionally, the NYCHRL has expanded to prohibit discrimination on the basis of gender identity or expression, which includes discrimination on the basis of gender identity, gender expression, and transgender status.
A covered employer cannot:
- set different terms and conditions of employment because of an employee’s gender;
- provide employee benefits that discriminate based on gender; and
- stereotype based on expectations on how a particular sex or gender should act.
A covered employer is required to:
- use an individual’s preferred name, pronoun and title; and
- allow individuals to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification card.
- But, an employer is not required to make existing bathrooms all-gender or construct additional restrooms.
Therefore, an employer cannot deny a promotion to a female employee because she looks too masculine, or take an adverse action against a male employee because he does not look masculine enough. A transgender woman must be allowed to use the women’s bathroom, or forcing a transgender person to use a single occupancy restroom.
The NYCHRL also has amendments which offer additional protections to workers. For example, the New York City Pregnant Workers Fairness Act is an amendment to the NYCHRL which requires covered employers to provide reasonable accommodations for pregnancy, childbirth, and relation medical conditions as long as the accommodations do not cause an undue burden on the employer. For example, an employer who forces a pregnant employee to take unpaid leave at a certain stage in her pregnancy, or denies a pregnant employee a promotion because she would be exposed to hazardous chemicals during her pregnancy would be in violation of this law.
There also is an amendment called the New York City Fair Chance Act, which, with some exceptions, prohibits eligible employers from conducting inquiries into job applicants’ pending arrest or criminal conviction records until after a conditional offer of employment has been made to an applicant. Another amendment is called the Stop Credit Discrimination in Employment Act, which prohibits employers from requesting or making use of the consumer credit history of an applicant or employee for the purposes of making any employment decisions, including hiring, compensation, and other terms and conditions of employment. However, there are some narrow exceptions under the law.
The NYCHRL is the broadest among the federal, state, and city anti-discrimination employment laws available to New York employees. Employers can be held liable for unlimited punitive damages in cases where they have engaged in intentional discrimination, harassment, or retaliation with malice or reckless disregard to an individual’s rights.
This list of New York State and New York City anti-discrimination laws is not exhaustive. There also are federal anti-discrimination laws, as well as federal, state, and local laws pertaining to wages earned and hours worked, sick days and leave policies. If you think your rights are being violated, or are an employer seeking guidance on navigating these laws, speak to an attorney at Berke-Weiss Law PLLC experienced in handling employment discrimination matters. Additional information and resources also are available at: New State Division of Human Rights: https://dhr.ny.gov/ and New York City Commission on Human Rights: http://www1.nyc.gov/site/cchr/index.page