New York City Human Rights Law

Our colleague  at Epstein Becker Green has a post on the Health Employment and Labor blog that will be of interest to our readers in the retail industry: “New York City Council Passes Bills Establishing Procedures on Flexible Work Schedules and Reasonable Accommodation Requests.”

Following is an excerpt:

The New York City Council recently passed two bills affecting New York City employers and their employees. The first bill, Int. No. 1399, passed by the Council on December 6, 2017, amends Chapter 12 of title 20 of the City’s administrative code (colloquially known as the “Fair Workweek Law”) to include a new subchapter 6 to protect employees who seek temporary changes to work schedules for personal events.  Int. No. 1399 entitles New York City employees to request temporary schedule changes twice per calendar year, without retaliation, in certain situations, e.g., caregiver emergency, attendance at a legal proceeding involving subsistence benefits, or safe or sick time under the New York City administrative code.  The bill establishes procedures for employees to request temporary work schedule changes and employer responses.  Exempt from the bill are employees: (i) who are covered by a collective bargaining agreement; (ii) who have been employed for fewer than 120 days; (iii) who work less than 80 hours in the city in a calendar year; and (iv) who work in the theater, film, or television industries. …

Read the full post here.

While the ADA finished celebrating its 27th anniversary at the end of July, for plaintiffs looking to bring website accessibility complaints in New York the party is still ongoing.  Following on the heels of last month’s decision of the U.S. District Court for the Southern District of New York in Five Guys, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews vs. Blick Art Materials, LLC, recently denied a motion to dismiss a website accessibility action, holding that Title III of the ADA (“Title III”), the NYS Human Rights Law and the New York City Human Rights Law all apply to websites – not only those with a nexus to brick and mortar places of public accommodation but also to cyber-only websites offering goods and services for sale to the public.

The Court’s decision in Blick was comprehensive – spanning nearly 40 pages – addressing the major theories and defenses website accessibility decisions have been considering with increasing frequency for more than a decade, through lenses that were extremely sympathetic to plaintiff’s claims.  Relying upon the Second Circuit’s decision in Pallozzi v. Allstate., 198 F.3d (2d Cir. 1999), recognizing the need to apply Title III broadly to match the expansive remedial and protective purposes of the ADA (albeit in the context of insurance policies), along with other district court decisions within the Second Circuit expressly applying that same theory to website accessibility (NFB v. Scribd and Five Guys), Judge Weinstein rejected the decisions of other circuits and district courts concluding that Title III only applies to a website when there is a connection to a physical place of public accommodation.  Adopting what it deemed to be a “sensible approach to the ADA”, the Court held that, “Blick is prohibited from discriminating against the blind by failing to take the steps necessary to ensure that the blind have ‘full and equal enjoyment’ of the goods, services, privileges, advantages, facilities, or accommodations of its website – provided that taking such steps would not impose an undue burden on Blick or fundamentally alter the website.”  This conclusion was deemed to embody the broad remedial mandate of the ADA, protecting individuals with disabilities from discrimination and allowing them to fully and equally participate in society – one that in 2017 places significant value on the ability to utilize websites – with accommodations needing to evolve alongside technology.  (The Court postponed a decision on whether such an action is appropriate for a class action.)

In reaching its conclusion, the Blick decision was also the latest to reject defenses based upon primary jurisdiction and due process (joining other decisions such as Hobby Lobby and Harvard/MIT.  First, the Court rejected the primary jurisdiction argument because:  (i) the question at issue was legal in nature and within traditional judicial competence (e.g., courts regularly decide similar issues under Title III involving “full and equal enjoyment” and “effective communication”/“auxiliary aids and services”); and (ii) plaintiff is entitled to a prompt adjudication of his claims (and the U.S. Department of Justice’s failure to promulgate regulations seven years after suggesting it would do so cannot be a reason to delay that process).  To alleviate defendant’s concern that the Court might lack the technical background necessary to rule on the issue, the Court ordered a “Science Day”, during which experts will testify and provide demonstrations about website design and assistive technology.  Second, the Court rejected any claims that plaintiff’s claim would violate concepts of due process, finding that the ADA, which requires a contextual assessment of specific facts against a “gray” backdrop of various defined terms (e.g., “reasonable modification”, “full and equal enjoyment”, “auxiliary aides and services”, “fundamental alteration”, and “undue burden”) is merely providing necessary flexibility.  (Moreover, any challenges by defendant regarding whether specific modifications or remedies might be improper was not ripe at the current stage of the litigation.)

While it is still possible the other cases with different facts decided in the EDNY and SDNY may not follow Blick and Five Guys, for now businesses in New York City must take these decisions seriously.  With DOJ no longer expected to issue clarifying regulations in the near future (if at all) and in light of the recent pro-plaintiff decisions in this case, Five Guys, Winn-Dixie, and Hobby Lobby, the plaintiffs’ bar is further escalating its efforts to blanket most major industries with website accessibility demand letters and lawsuits.  Not only are new players emerging every day, but the well-known plaintiff’s attorneys in this area – emboldened by these recent decisions – are becoming increasingly aggressive.  The Blick decision underscores what we’ve been cautioning clients about for some time – businesses with websites that are either connected to a brick and mortar place of public accommodation or use a website to directly sell goods and services to the public who are looking to avoid website accessibility lawsuits should promptly take the steps necessary to make their websites accessible that we have addressed in our previously website accessibility blogs.

The New York City’s Human Rights law (“NYCHRL”) prohibits employment discrimination against specified protected classes of employees and applicants including:

Employers Should Care About This: New York City’s Amendment on Caregiver Discrimination race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status, partnership status, any lawful source of income, status as a victim of domestic violence or status as a victim of sex offenses or stalking, whether children are, may be or would be residing with a person or conviction or arrest record.

If this list wasn’t long enough, on May 4, 2016, NYCHRL will add “caregivers” to the protected classes including, anyone who provides ongoing medical  or “daily living” care for a minor, any disabled relative or disabled non-relative who lives in the caregiver’s household.

The law defines “caregiver” as a person who provides direct and ongoing care for a minor child or a person with a disability who: (1) is a covered relative, or a person who resides in the caregiver’s household; and (2) relies on the caregiver for medical care or to meet the needs of daily living.

“Covered relatives” include children (adopted, biological or foster), spouses, domestic partners, parents, siblings, grandchildren, grandparents, children or parents of the caregiver’s spouse or domestic partner, or any individuals in a “familial relationship” with the caregiver.

The NYCHRL prohibits employers from discriminating against caregivers with respect to hiring, compensation, or the terms and conditions of employment. Thus, employers should not ask applicants about their status as a caregiver when making hiring decisions.

Importantly, employers may still (and should!) hold caregiver employees to the same attendance and performance standards as other employees.  Caregivers must still be able to perform the essential functions of their job, notwithstanding their role as a caregiver.

The law does not contain an affirmative requirement to accommodate caregivers, but employers should carefully consider any employee’s requests for time off due to caregiving responsibilities to ensure responses to such requests are being applied consistently and in accordance with any other potentially applicable laws. For example, caregiver employees may be eligible to take sick time under the New York City Earned Sick Time Act to fulfill caregiver duties for medical needs. In addition caregivers caring for medical needs may be entitled to Family and Medical Leave Act benefits.  Employers must also think about how their policies and practices affect caregivers and train managers on the new protections.

The New York Human Rights Commission has not yet issued formal guidance regarding this amendment. Until the Commission does so, the potential reach of the law remains unknown.  But employers should brace themselves for broad interpretations of this law and stay tuned to this blog for updates.

On March 28, 2016, New York City Mayor Bill de Blasio signed three pieces of legislation passed earlier this month by The New York City Council to amend the City’s Human Rights Law (“NYCHRL”).

The new laws:

  1. require that the NYCHRL be interpreted expansively to maximize civil rights protections, regardless of how courts have interpreted similar provisions under federal and state anti-discrimination laws;
  2. permit the City’s Commission on Human Rights the authority to award attorney’s fees and costs to complainants in cases brought before the Commission; and
  3. repeal language addressing how to construe the NYCRHL’s prohibition against discrimination on the basis of sexual orientation.

The repealed language provided that the NYCHRL should not be construed to, among other things, restrict an employer’s right to insist that an employee meet bona fide job-related qualifications of employment, or authorize affirmative action on the basis of sexual orientation.

The laws became effective immediately upon the Mayor’s signature. Employers should be aware of the enhanced protections for their New York City employees.

John M. O’ConnorRetail employers and other businesses that serve the public in New York City should take particular notice of the New York City Commission on Human Rights’ detailed written guidance issued on December 21, 2015, reinforcing its desire that the protections afforded to transgender individuals by the New York City Human Rights Law (“NYCHRL”) be broadly interpreted to ensure that transgender individuals receive the full protection of the NYCHRL. The guidance includes specific examples of what the Commission believes constitutes unlawful discrimination based on an individual’s actual or perceived transgender status, gender identity, self-image, appearance, behavior or gender expression.

The Commission stresses the need for employers in New York City to use an employee’s preferred name, pronoun (he/she) and title (Mr./Mrs.) regardless of the employee’s “sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.”  Recognizing that many transgender and gender non-confirming individuals choose to use a different name than the one they were given at birth, or chose to use gender neutral pronouns (such as ze/hir), the Commission explains that employees expressing such a preference “have the right to use their preferred name.”  Refusal by an employer to use an employee’s preferred name, pronoun or title because they do not conform to gender stereotypes is a violation of the NYCHRL.  Thus, if a transgender woman advises that her preferred name is Jane, even though her identification states that her first name is John, it would be a violation of the NYCHRL for the employer to refuse to call her Jane.  The Commission suggests in its guidance that employers should consider creating a workplace policy of asking all employees what their preferred name and gender pronoun are so that employees can self-identify, and so that no single employee is singled out for such questioning (giving rise to a potential harassment claim).

The Commission also addresses employer dress code and grooming policies, advising that employers “may not require dress codes or uniforms, or apply grooming or appearance standards, that impose different requirements for individuals based on sex or gender.”  The Commission expressly rejects the federal standard that allows employers to apply different dress code or grooming policies to male and female employees unless the policies create an undue burden on employees.  Rather, the Commission opines that “holding individuals to different grooming or uniform standards based on gender serves no legitimate non-discriminatory purpose.”  Thus, while employers are entitled to enforce a dress code or require certain grooming/appearance standards, they must do so without imposing restrictions or requirements specific to gender or sex.  In this regard, polices such as allowing only women to wear jewelry, or requiring only male employees to maintain short hair would be violations of the NYCHRL, as would a policy requiring different uniforms for men and women.  Accordingly, to avoid violations, employers should create gender-neutral dress codes and grooming standards.

Retailers and other businesses that serve the public should also note the Commission’s position that the NYCHRL, “requires that individuals be permitted to use single-sex facilities, such as bathrooms or locker rooms … consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.”  Recognizing that other employees or customers may object to sharing a bathroom with a transgender or gender non-conforming person, the Commission warns that “such objections are not a lawful reason to deny access to that transgender or gender non-conforming individual.”  The Commission suggests that, to avoid violating the NYCHRL, employers should, “wherever possible,” provide single-occupancy restrooms (that can be used by people of all genders), or provide private space within multi-use bathrooms or locker rooms for anyone who has privacy concerns.  However, it would be a violation to force a transgender or gender non-conforming person to use a single-occupancy restroom if he/she/ze does not want to use it.  The Commission suggests that employers should post signs in all single-sex bathrooms or locker rooms that state that: “Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression.”

By issuing the guidance, the Commission makes very clear its intention to protect transgender individuals from discrimination based on their transgender status and gender expression.  The guidance concludes with a bold reminder of the penalties for violating the NYCHRL’s prohibition of gender identity discrimination.  In addition to the remedies available at law to aggrieved individuals who prevail on claims under the NYCHRL, the Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the product of willful, wanton or malicious conduct.  Accordingly, to avoid potential violations, New York City employers should consult with counsel to ensure that they create new policies and/or amend existing policies to comply with the directives set forth in the Commission’s guidance, and to minimize the likelihood of a violation of the NYCHRL.

For additional information regarding the Commission’s guidance and other recent developments affecting New York City employers, see our January 28 Act Now Advisory, “NYC Employers Risk New Penalties in 2016: Gender and Caregiver Discrimination, Paying Freelancers.”

New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program.  The program is designed to determine if employers are using illegal bias during the employment application process.

Under this program, which is to begin by October 1, 2015, the Commission is to use a technique known as “matched pair testing” to conduct at least five investigations into the employment practices of New York City employers.  The law requires the Commission to use two “testers” whose credentials are similar in all respects but one: their protected characteristics, i.e., actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status, or another characteristic protected under the New York City Human Rights Law.  The testers will apply for jobs with the same employer to evaluate whether that employer is using discriminatory practices during the hiring process.

Employers may wish to notify their human resources personnel about the program and have them remind individuals who review job applications and conduct interviews to focus on job-related skills and abilities, not protected characteristics.  Job postings/advertisements should also be reviewed to ensure that they are neutral.

by Susan Gross Sholinsky, Dean L. Silverberg, Steven M. Swirsky, and Jennifer A. Goldman

New York City employers take note: under the New York City Human Rights Law (“NYCHRL”), it is now considerably more difficult for employers to establish “undue hardship” in the context of denying an employee’s request for a reasonable accommodation due to his or her religious observance or practice. While previously silent on the issue, the NYCHRL now includes a definition of the term “undue hardship,” as follows: “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” This language mirrors the definition currently included in the New York State Human Rights Law (“NYSHRL”), and along with other changes described below, was included in Local Law 54, 2011 (entitled the Workplace Religious Freedom Act) (the “Act”). The Act was unanimously passed by the New York City Council and became effective when signed by Mayor Michael Bloomberg on August 30, 2011.

Read the full advisory online