Articles Posted in NYCHRL

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By Edgar M. Rivera

On April 9, 2019, the New York City Council (the “Council”) passed a bill that would prohibit New York City employers from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (“THC”), the active ingredient in marijuana, as a condition of employment.  Exceptions to the prohibition are provided for safety and security sensitive jobs—such as police officers, peace officers, positions with law enforcement functions, construction workers, drivers, and care givers—and positions tied to a federal or state contract or grant.

Medical marijuana in New York has been legal since 2014, when New York passed the Compassionate Care Act, which allows certified patients suffering from certain serious health conditions to obtain marijuana from their physician for medical use.  There were more than 60,000 certified patients in New York as of June 30, 2018.

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Title VIII of the Civils Rights Act of 1964 (“Title VII”) prohibits all employers (with 15 or more  employees)  from discriminating against employees on the basis on sex, race, color, national origin and religion.  Claims brought under Title VII are enforced by the Equal Employment Opportunity Commission (“EEOC”) and privately by attorneys. One type of discrimination, however remains unactionable under Title VII: discrimination based on hair style.

Discrimination based on one’s hair style disproportionately affects people of color, specifically, black people who have afro-textured hair that has not been chemically straightened.  Historically, black hairstyles have been stereotyped as “unprofessional” in the workplace.  Moreover, employers have terminated employees based on an employee’s hairstyle, as was done in Bryan v. AEG Management Brooklyn, LLC, in which an African American woman was terminated for wearing her hair in a natural, untreated style.

In Bryan v. AEG, Tiffany Bryan, who was employed by the Defendant, AEG Management Brooklyn, LLC (“AEG”), preferred to wear her natural hair in the style of an afro.  Her employer requested that she wear headbands, reasoning that her hair style looked as if she “stuck her finger in a socket” or “was electrocuted.”  Bryan agreed to wear a headband. Yet, AEG still deemed her hair as inadequate and inappropriate for the job and requested that she wear a ponytail.  Bryan explained that the tension from ponytails gave her serious headaches and refused to oblige her employer’s request.  In response, AEG terminated Bryan.

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By Leah Kessler

Last year, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, which we blogged about here.  In doing so, New York has increased the safety of men and women in the workplace.  This is an important task, as there are approximately 321,500 cases of rape and sexual assault reported annually in the U.S.—a number far less than the projected actual number, as victims are often too afraid to report their experiences.  These laws are an important step forward, effectively holding employers and companies to a higher standard to improve the workplace, especially for the over 74 million women in the labor force today.

In May 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act—comprehensive legislation aimed at addressing and preventing sexual harassment in the workplace.  Notably, this act expands the City Human Rights Law in cases of gender-based harassment by increasing the statute of limitations to bring claims to the New York City Commission on Human Rights from one- to three-years, regardless of the size of their employer.  In addition, it requires all employers in the City to display anti-sexual harassment rights and responsibilities in both English and Spanish.  Employers are also required to post a mandatory notice provided by the New York City Commission on Human Rights as well as a mandatory notice to all new hires. (The notices are found here and here, respectively.) Employers must already be in compliance with these posting requirements.

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By Edgar M. Rivera, Esq.

In December 2017, by a vote of 48 to 2, the New York City Council passed by a vote of 48-2 Local Law No. 59 (2018), amending the New York City Human Rights Law (“NYCHRL”) by creating an independent cause of action against employers who fail to engage in the interactive process to determine if an accommodation of an eligible employee is needed.  In other words, an employer may not “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation,” whether related to a disability, religious practices, pregnancy or childbirth, or needs as a victim of domestic violence.  The law went into effect on October 15, 2018.

The term “cooperative dialogue” means the process by which a covered entity and an employee who may be entitled to an accommodation engage in good faith dialogue (written or verbal) concerning an employee’s accommodation needs.  This dialogue may include any of the following: potential accommodations that may address the employee’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.

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Edgar M. Rivera, Esq.

According to the NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, approximately one million residents (11.2 percent of the population) of New York City live with a disability.  Fostering environments of inclusivity and accessibility allow people with disabilities to enter and remain in the workforce and meet their most basic and critical needs.  The New York City Human Rights Law (“NYCHRL”)—New York City’s local anti-discrimination statute—is one of the most broad and remedial in the country.  It must be construed “independently from similar or identical provisions of New York State or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”  In addition, exemptions to the NYCHRL must be construed “narrowly in order to maximize deterrence of discriminatory conduct.”

As a result, the provisions of the NYCHRL that prohibit disability discrimination are generally broader than the Americans with Disabilities Act (“ADA”).  An individual is considered disabled, within the meaning of the ADA, if he has a physical or mental impairment that substantially limits one or more of the major life activities, has a record of such an impairment, or has been regarded as having such an impairment.  Under the NYCHRL, however, a “disability” means “any physical, medical, mental or psychological impairment, or a history or record of such impairment.”  The NYCHRL definition of disability is “liberalized and expansive.”

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By Edgar M. Rivera, Esq.

In Beaton v. Metropolitan Transportation Authority, the Southern District of New York denied a motion filed by the Metropolitan Transportation Authority (“MTA”) to dismiss Earl Beaton’s disability discrimination claims under the American with Disabilities Act (“ADA”) and New York City Human Rights Law (“NYCHRL”), including wrongful termination, failure to provide a reasonable accommodation, and retaliation claims.  Beaton had appeared to be sleeping on the job because his schizophrenia medication caused his eyes to close.  The MTA immediately suspended and then terminated his employment, despite having knowledge of his disability.  Beaton maintained that “his disability was the cause of his termination.”

Beaton was diagnosed with schizophrenia in 1985.  Schizophrenia is a chronic and severe mental disorder that affects how a person thinks, feels, and behaves.  Although schizophrenia is not as common as other mental disorders and the symptoms can be very disabling, it can be treated with the right medications. Beaton’s symptoms included depression, anxiety, paranoia, mental instability, auditory hallucinations, and the belief that other people can read his mind.  As a result, Beaton’s schizophrenia impairs his ability to work, think, communicate, sleep, learn, focus, concentrate, and remain awake.  Beaton received psychiatric care since his diagnosis and has been successful in treating his mental condition with antipsychotic medication.  Specifically, Beaton was prescribed Fluphenazine for the past ten years, which permitted him to maintain stable periods without schizophrenia symptoms.

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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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