Articles Posted in NYCHRL

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This month, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, including the New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), general business law, and civil practice law and rules. Some of the most important changes involve extending legal protections against sexual harassment to previously unprotected workers, including independent contractors and other non-employees; prohibiting mandatory arbitration of sexual harassment claims and non-disclosure provisions in sexual harassment settlement agreements; and requiring employers to provide sexual harassment training to employees.

As of April 12, 2018, the NYSHRL now protects all non-employees in New York State against workplace sexual harassment. Most other state employment discrimination statutes cover only employees, leaving most independent contractors (including models, actors, and other entertainers who are typically represented by agents), consultants, and other non-employees with few legal protections against workplace discrimination. The new changes to the NYSHRL, however, extend sexual harassment protections under state law to any “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” Under the NYSHRL, an employer is liable for sexual harassment of a non-employee if the employer knew (or should have known) about the harassment but did not take immediate and appropriate corrective action.

We have previously reported on the prevalence of—and problems with—mandatory arbitration agreements (which require employees to agree to resolve any future discrimination and harassment claims in a private forum, rather than in court) and nondisclosure provisions, better known as NDAs, in settlement agreements (which swear employees to silence about their experiences of discrimination in exchange for settling their claims). Beginning July 11, 2018, however, the New York general business law will be amended to prohibit New York State employers from forcing employees to arbitrate sexual harassment claims—including nullifying any arbitration agreements signed prior to that date. And amendments to New York’s civil practice law and rules and general municipal law will prohibit employers from including NDAs in settlement agreements concerning workplace sexual harassment claims unless the plaintiff specifically voices a preference for including the nondisclosure language. Together, these changes will hopefully begin to end the silence around workplace sexual harassment by giving victims of sexual harassment the chance to pursue their claims in court and share their stories of discrimination with others, unrestricted by silencing clauses in settlement agreements.

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Edgar M. Rivera, Esq.

On March 16, 2018, in Chauca v. Abraham, the Second Circuit vacated a district court’s denial of a plaintiff’s request for a jury instruction on punitive damages for pregnancy discrimination under the New York City Human Rights Law (NYCHRL). The Second Circuit explained that the lower court had erred in applying the federal test because the New York State Court of Appeals, on certified question, had expressly rejected the application of the federal standard for punitive damages under the NYCHRL. The case was remanded for further proceedings consistent with the opinion.

The Harman Firm, LLP, reported on Chauca v. Abraham on November 20, 2017. In our post “New York Court of Appeals Sets Punitive Damages Standard for NYCHRL Claims”, we explained how the New York State Court of Appeals set the standard for punitive damages awards in claims brought under the NYCHRL. The New York State Court of Appeals, in keeping with the New York State common law standard, held that the NYCHRL entitles a plaintiff to punitive damages “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”

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The Harman Firm is proud to report that on February 12, 2018, Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York denied summary judgment in Umanzor v. New York City Police Department. The court’s decision allows the disability discrimination claims brought against the New York City Police Department (NYPD) by plaintiff Randy Umanzor, who is represented by The Harman Firm, LLP, to proceed to trial.

In May 2013, Mr. Umanzor was diagnosed with multiple sclerosis (MS) after experiencing symptoms of weakness and numbness. After his diagnosis, Mr. Umanzor began a treatment regimen, including a prescribed steroid medication and Vitamin B12 injections, but continued to experience some minor MS-related symptoms, like tingling, numbness, and fatigue. Mr. Umanzor applied to join the NYPD’s Police Cadet Corps in February 2014, after being diagnosed with and treated for MS. He passed the physical examination with flying colors.

However, after Mr. Umanzor disclosed his MS diagnosis during the application process, the NYPD placed him “on review.” Mr. Umanzor provided the NYPD with his medical records—which were unintentionally incomplete—and a note from his neurologist, confirming that Mr. Umanzor was “medically stable” to join the NYPD and that his neurological exam was “normal except for mild sensory loss in the first two fingers on the left hand.” After receiving these documents, the NYPD disqualified Mr. Umanzor based on the “brief period of time that had elapsed between his MS diagnosis and the date that he applied to the Police Cadet Corps.”

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Edgar M. Rivera, Esq.

On February 26, 2018, in Smith v. North Shore-Long Island Jewish Health System, the U.S. District Court for the Southern District of New York denied a motion for summary judgment submitted by North Shore–Long Island Jewish Health System (the “Hospital”) to dismiss claims under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and New York City Human Rights Law (NYCHRL) brought by Nola Smith, a former registered nurse with the Hospital, finding triable issues based largely on evidence that the hospital strayed from following its established policy.

Throughout Ms. Smith’s tenure with the Hospital, she suffered from anxiety disorders and panic attacks. The Hospital accommodated her with a lighter work schedule than other nurses, and she took intermittent leaves of absence under the FMLA.  The Hospital, however, issued Ms. Smith multiple warnings for her use of leave, even though some of the leave was under the FMLA and therefore protected. (The Hospital generated a spreadsheet of nurses who called in sick more than three times per quarter, regardless of whether the absences were covered by approved leave under the FMLA.)  The Hospital also allegedly denied Ms. Smith’s transfer requests and did not allow her to attend career-enhancing conferences because of the number of her leaves of absence. At one point, the Hospital did allow Ms. Smith to attend a conference, but she could not find anyone to cover her shift and ended up missing the conference.  The Hospital, however, paid Ms. Smith for the conference attendance, which payment Ms. Smith assumed represented accrued paid time off.  The Hospital later discovered that Ms. Smith had not attended the conference and fired her for accepting pay for a conference she failed to attend.

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By Owen Laird

Employees across the country are protected from discrimination by three main federal laws: Title VII of the Civil Rights Act of 1963 (Title VII) protects against discrimination based on race and color, national origin, sex, and religion, while the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) protect against discrimination based on disability and age, respectively. Workers in New York City, however, enjoy the protections of one of the most expansive anti-discrimination statutes in the nation: the New York City Human Rights Law (NYCHRL), a city law that is extensive as well as adaptive to their needs.

In addition to those federally protected characteristics listed above, the NYCHRL provides additional protection against sexual orientation, gender identity, marital status, and partnership status discrimination (to name a few). Protection against sexual orientation discrimination and gender identity discrimination is essential as these characteristics are not protected by other statutory regimes, and New Yorkers cannot rely on federal laws to provide this security.

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Edgar Rivera, Esq. and Leah Kessler

On December 18, 2017, in Swiderski v. Urban Outfitters, Inc., Judge J. Paul Oetken of the Southern District of New York denied the majority of defendant Urban Outfitters’ motion for summary judgment. Although Judge Oetken ruled that there was insufficient evidence for a reasonable jury to find that Plaintiff Tatiana Swiderski was constructively discharged from her position as a sales associate at Urban Outfitters, he allowed her hostile work environment and retaliation claims to proceed to trial. This decision is important because it reaffirms an employer’s responsibility under the New York City Human Rights Law (NYCHRL) to take proactive measures to prevent discrimination from customers where the discriminatory conduct is previously known to the employer’s managers.

Tatiana Swiderski was hired as a sales associate at a Manhattan Urban Outfitters store in 2013.  Shortly after her hire, a male customer was caught photographing or videotaping up Ms. Swiderski’s skirt while she was on the stairs. Brian McCabe, a loss prevention agent employed by Urban Outfitters, escorted the customer out of the store and deleted all the pictures and videos of Ms. Swiderski from the customer’s phone. Mr. McCabe, however, repeatedly refused to give Ms. Swiderski the customer’s identification information so that she could file a police report. Later, an assistant store manager told Ms. Swiderski candidly that Urban Outfitters was aware of least one other customer that used to come in and regularly sit under the stairs to look up the skirts and dresses of female employees. Ms. Swiderski then went to Emily McManus, a manager, who confirmed this to be the case. Ms. Swiderski made repeated complaints to Ms. McManus about how both Urban Outfitters and Mr. McCabe had handled the incident, and, after Urban Outfitters reluctantly gave her the customer’s contact information, she filed a police report against the customer.

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Last week, on November 20, 2017, in Chauca v. Abraham, the New York State Court of Appeals set the standard for punitive damages awards in claims brought under the New York City Human Rights Law (NYCHRL). The New York  Court of Appeals, in keeping with the New York State common law standard, held that the NYCHRL entitles a plaintiff to punitive damages “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”

In 2009, Plaintiff Veronika Chauca became pregnant, took a period of maternity leave from her job as a physical therapy aide, and was terminated after her return from leave. She then filed suit in the U.S. District Court for the Eastern District of New York, bringing sex and pregnancy discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York State Human Rights Law (NYSHRL), and the NYCHRL.

Chauca prevailed at trial and obtained a total jury award of $60,500, representing economic and emotional distress damages. Chauca then appealed the district court’s denial of a jury instruction on punitive damages to the Second Circuit, arguing that the district court had not properly construed the NYCHRL’s standard for punitive damages. The Second Circuit, finding that the statute and existing case law did not provide sufficient guidance, certified the question to the New York Court of Appeals.

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By Edgar M. Rivera, Esq.

For those who follow The Harman Firm Blog, you may recall our article “Second Circuit Addresses Alcoholism Perceived Disability Claims Under NYCHRL,” in which we reported that the Second Circuit in Makinen v. City of New York certified the question of whether §§ 8-102(16)(c) and 8-107(1)(a) of the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism. Section 8-107(1)(a) prohibits discrimination based an actual or perceived disability. But in the case of alcoholism, § 8-102(16)(c) limits the applicability of the term “disability” to cover only employees who are recovering or have recovered from alcohol use disorder and are currently free from abuse. On October 17, 2017, the Court of Appeals of New York answered the certified question in the affirmative.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years and, during that time, were falsely accused of abusing alcohol by their respective former partners. Ms. Nardini’s former partner—also the father of her daughter—accused Ms. Nardini of abusing alcohol in the midst of a tumultuous breakup and ongoing custody battle, which led the NYPD to refer Ms. Nardini to its Counseling Services Unit, where she was diagnosed as suffering from alcohol abuse. She accepted treatment only under threat of suspension. Ms. Makinen was similarly referred to the NYPD’s Counseling Services Unit while embroiled in a custody dispute with her former husband. On multiple occasions, Ms. Makinen’s former husband and his family members alleged that Ms. Makinen drank excessively, drove while drunk, and abused her children. The Counseling Services Unit diagnosed Ms. Makinen—like Ms. Nardini—with alcohol dependence, and Ms. Makinen reluctantly agreed to attend a four-week inpatient rehabilitative treatment program to avoid disciplinary actions.  It is undisputed, however, that neither plaintiff was actually an alcoholic.

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Edgar M. Rivera, Esq.

On August 22, 2017, in Edwards v. Nicolai, the First Department Appellate Division—the appellate court of the counties of New York and the Bronx—overturned the trial court’s decision to dismiss gender discrimination claims, allowing Plaintiff Dilek Edwards to pursue her claims against Defendants Charles V. Nicolai and his wife, Stephanie Adams, a former Playboy Playmate. Ms. Edwards alleges that Mr. Nicolai and Ms. Adams—co-owners of Wall Street Chiropractic and Wellness (WSCW)—discriminated against her by terminating her employment because she was sexually attractive.

In April 2012, Mr. Nicolai hired Ms. Edwards as a yoga and massage therapist. According to Ms. Edwards, her relationship with Mr. Nicolai was “purely professional,” and Mr. Nicolai “regularly praised Plaintiff’s work performance throughout her period of employment.” In June 2013, however, Mr. Nicolai allegedly “informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.” Approximately four months later, Ms. Adams sent Ms. Edwards a text message stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, Ms. Edwards allegedly received an email from Mr. Nicolai stating, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.”

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Edgar M. Rivera, Esq.

On May 22, 2017, in Makinen v. City of New York, the Second Circuit certified the following question: does the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?  The question will be answered by the New York State Court of Appeals.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years.  During their employment, each was referred to the NYPD’s Counseling Service Unit (CSU), which offers treatment and rehabilitation for officers struggling with substance abuse. Once an officer is referred to CSU with alleged alcohol-related problems, a trained counselor conducts an intake interview and contacts references to gather information regarding the officer’s reported alcohol use. If an officer is diagnosed with an alcohol use disorder, CSU staff develops a personal treatment plan, which may include educational videos, counseling, Alcoholics Anonymous meetings, outpatient treatment, or inpatient treatment. An officer who refuses treatment is referred to the NYPD’s Medical Division, which may order the officer to undergo treatment or face disciplinary action. The officer is entitled to challenge the disciplinary action in administrative proceedings by filing a grievance with the agency that oversees CSU or through an Article 78 proceeding. Otherwise, once an officer is diagnosed with an alcohol-related problem, receipt by CSU of subsequent evidence of alcohol consumption triggers a mandatory reassessment and, potentially, further treatment.

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