Articles Posted in Sex Discrimination

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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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Leah Kessler

On March 27, 2018, in Del Toro Lopez v. Uber Technologies, Inc., Uber agreed to pay a $10 million settlement and make systemic changes to the way it evaluates employees to settle a class action brought by three Latina engineers, who alleged that they were paid less than their white and Asian male colleagues due to Uber’s unfair evaluative methods. The settlement will compensate about 285 women and 135 men of color for financial and emotional harm stemming from the alleged discriminatory practices.

In October 2017, Ingrid Avendaño, Roxana del Toro Lopez, and Ana Medina—all of whom are Latina women who were employed as software engineers at Uber—filed suit in California on behalf of themselves and other aggrieved employees, claiming that Uber engaged in unfair business practices and violated the California Equal Pay Act and Private Attorneys General Act. The complaint alleged that Uber uses a “stack ranking” system for evaluating employees, meaning that Uber evaluates each employee from “worst to best.” The result, as the suit claims, is that “female employees and employees of color are systematically undervalued….because [they] receive, on average, lower rankings despite equal or better performance.” These stack rankings are used, in part, to determine promotions.

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Owen H. Laird, Esq.

In 2016, we reported on Kerrie Campbell’s class action complaint against Chadbourne & Parke, LLP, in which Ms. Campbell alleged that Chadbourne & Park, LLP, had underpaid and blocked female partners from leadership roles at the firm.  Earlier this week, the parties filed papers revealing that they were able to reach a proposed settlement in the case.

Since the action began in 2016, Chadbourne & Parke merged with Norton Rose Fulbright, another large international law firm.  Additionally, two more plaintiffs joined the case, Mary Yelenick and Jaroslawa Johnson, former Chadbourne partners who allege similar facts as Ms. Campbell.

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Leah Kessler

This March we celebrate Women’s History Month (WHM) – an annual event highlighting the contributions of women to events in history and contemporary society. Congress designated March as National Women’s History Month in 1987, seven years after the National Women’s History Project (NWHP) was founded in Santa Rosa, California. The first observance of a Women’s Day, however, was celebrated on February 28, 1909, here in New York. A year later, March 8 was suggested by the 1910 International Socialist Woman’s Conference to become an “International Woman’s Day.”

According to the NWHP, “Today our aim is as clear and simple as it was 25 years ago: to teach as many people as possible about women’s role in history.” And while this goal of accrediting exceptional women for piloting reforms in a society obstructed by its own hatred and exclusionary practices is worthwhile, limiting this praise and tribute to one month out of the year does not feel like enough. This is perhaps due to the fact that this year, WHM comes on the heels of numerous, high-profile sexual harassment and sexual assault allegations—many, if not most, of which occurred in the workplace (see a previous blog on this topic here).

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Leah Kessler

This summer, we reported on the Second Circuit’s decision to review en banc its holding in Zarda v. Altitude Express, Inc., where the Second Circuit had affirmed the dismissal of the plaintiff’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) on the grounds that Title VII does not cover sexual orientation discrimination. On Monday, the Second Circuit broke with precedent and reversed that decision, finding that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

While Title VII forbids discrimination in the workplace based on race, color, sex, religion, and national origin, the statute does not explicitly prohibit sexual orientation–based discrimination. This has historically left many employees vulnerable to discrimination because of their sexuality: No federal law explicitly forbids discrimination against LGBT people in the workplace, local laws differ considerably from state to state, and the U.S. Supreme Court has never addressed whether Title VII covers sexual orientation discrimination. While, under the Obama administration, the Equal Employment Opportunity Commission (EEOC)—the government agency that interprets and enforces Title VII—made clear that it views sexual orientation discrimination as a violation of Title VII, the EEOC’s interpretations don’t have legal force in federal court, and courts have typically dismissed Title VII sexual orientation claims in the past.

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Today, the Second Circuit Court of Appeals issued a landmark decision in Zarda v. Altitude Express, Inc., breaking with precedent and holding that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The court found that Title VII’s sex discrimination provision covers discrimination on the basis of sexual orientation, writing that it is “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” The decision, which makes the Second Circuit the second circuit court to arrive at such a ruling, means that LGBT New Yorkers are now protected by federal law against sexual orientation discrimination in the workplace.

We’ll post a blog exploring this decision in more detail later this week, and the Second Circuit’s opinion can be found here. If your employer has discriminated against you based on your sexual orientation, contact The Harman Firm, LLP.

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Owen H. Laird

As we move into 2018, it is worth reflecting on one of the most significant developments of 2017: sexual harassment becoming a topic of national discussion. In the past year, scores of people—primarily, but not exclusively, women—came forward and told their stories of harassment, abuse, and assault. As a result, dozens of high-profile individuals were fired, suspended, or forced to resign. Politicians, business leaders, media personalities, actors, writers, and other celebrities all faced public disgrace for their actions.

While these cases focus public attention on the issue of sexual harassment in the workplace, the unfortunate reality is that these high-publicity cases represent only a miniscule fraction of the incidents of sexual harassment and assault that people in the workplace face. The media rarely covers the stories of people working in low-wage, low-profile jobs who face sexual harassment or assault. Restaurant workers, office workers, home health aides, and hospitality workers all face high levels of harassment, and—as many Americans cannot afford to lose their jobs—victims go silent out of fear of retaliation.

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Earlier this year, we reported on the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital affirming the dismissal of a former security guard’s claims that her employer had discriminated against her because she is a lesbian and did not conform to gender stereotypes. This Monday, December 11, 2017, the U.S. Supreme Court declined to review the Eleventh Circuit’s ruling in Evans, leaving unanswered the question of whether Title VII covers sexual orientation discrimination.

Plaintiff Jameka Evans, who is a lesbian, worked at an Atlanta regional hospital as a security officer. She was open about her sexual orientation with her coworkers and dressed in a masculine manner, wearing the men’s security guard uniform, men’s shoes, and a short haircut. According to Evans’s complaint, the hospital discriminated against her because of her sexual orientation and nonconformity with gender stereotypes by denying her equal pay, harassing her, physically assaulting her, and targeting her for termination, then retaliated against her after she complained about the discriminatory treatment.

Evans brought sex and sexual orientation discrimination claims in the U.S. District Court for the Southern District of Georgia under Title VII, which is a federal statute that protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  The district court dismissed Evans’s sexual orientation discrimination claim, holding that Title VII “was not intended to cover discrimination against homosexuals,” and Evans appealed the ruling to the Eleventh Circuit.

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Edgar M. Rivera, Esq.

On November 15, 2017, in Berghorn v. Texas Workforce Commission, the District Court for the Northern District of Texas dismissed with prejudice plaintiff Kyle Berghorn’s sexual orientation discrimination claim, but allowed him to re-plead his gender stereotyping claim. Berghorn alleged that Xerox terminated his employment because he is gay and because he failed to conform to Xerox’s gender stereotypes. Both of Berghorn’s claims arose under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Berghorn was employed by Xerox from 2002 until February 29, 2016. At the time of his termination, he held the position of senior manager. Xerox terminated Berghorn after finishing an investigation, which purportedly concerned Berghorn’s use of expenses, but in which Xerox instead asked Berghorn several questions about whom Berghorn was sleeping with and whether the person was male. Allegedly, Xerox employees had previously made other disparaging comments about Berghorn’s sexuality, like, “He has no children. He’s gay.” Ultimately, the investigation revealed that Berghorn had not stolen any money from the company and that he had himself paid for personal charges on his card; his expenses were in order. Nonetheless, Xerox fired him.

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Last year, we reported on North Carolina’s Public Facilities Privacy & Security Act, better known as “HB 2.” HB 2, which was passed in March 2016, required North Carolina public schools and agencies to separate bathrooms by “biological sex,” preventing many transgender people from using the bathroom consistent with their gender identity. In the wake of the passage of HB 2, many companies reduced or withdrew their business in North Carolina, and musicians and speakers cancelled scheduled events in protest of the new law. The state was even drawn into conflict with the federal government when, in May 2016, the United States filed suit against the State of North Carolina and Pat McCrory—the state’s Republican governor at the time—on the grounds that HB 2’s “bathroom provision” violated several federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964.

The widespread opposition to HB 2 caused a serious hit to North Carolina’s economy and reputation, and in the year and a half since the law was passed, a number of North Carolina politicians and activists have pushed to repeal it. In March 2017, North Carolina repealed HB 2 with the passage of HB 142. The new bill was hampered, however, by two significant concessions to Republican legislators: a provision stating that regulating “access to multiple occupancy restrooms, showers, or changing facilities” would be left to the state, and a provision prohibiting local governments from “enact[ing] or amend[ing] an ordinance regulating private employment practices or regulating public accommodations.” These components of HB 142 mean that transgender North Carolinians remain vulnerable to discrimination; the state retains its power to control bathroom access, and local governments aren’t able to pass their own laws protecting LGBT constituents from discrimination in the workplace or public accommodations.

On October 18, 2017, Democratic North Carolina Governor Roy Cooper issued a new executive order and consent decree intended to combat discrimination in North Carolina, which he called an important step “toward fighting discrimination and enacting protections throughout state government and across our state.” The executive order prohibits discrimination on the basis of sexual orientation and gender identity or expression, among other protected characteristics, in government agencies and government contracts—a major step for employees of the North Carolina state government or the more than 3,000 vendors who contract with it. The consent decree, which regulates how North Carolina’s executive agencies enforce HB 142 in their public facilities, allows transgender people to use restrooms in accordance with their gender identity.

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