Articles Posted in Sexual Discrimination

The New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) prohibit discrimination on the basis of sex or gender.  Despite the “liberal construction” applied to the interpretation of sex discrimination under the NYSHRL and NYCHRL, a Manhattan Supreme Court held on May 11, 2016, that it does not include terminating an employee because of concerns that the employee is “too cute.”

In Edwards v. Nicolai, 160830/2013, NYLJ 1202758050107, at *1 (Sup., NY, Decided May 11, 2016), Edwards was employed as a yoga and massage therapist by Wall Street Chiropractic and Wellness (“WSCW”) for approximately a year and a half.  WSCW was co-owned by Nicolai and his spouse, Adams.  According to the complaint, Nicolai maintained a strictly professional relationship with Nicolai and had only met Adams once, at a cordial meeting.  Approximately two months into Edwards’ employment, Nicolai told her that is wife might become jealous of her because she was “too cute.”

A year and a half after she was hired she received a text message from Adams “out of the blue,” which stated “[y]ou are NOT welcome any longer at Wall Street Chiropractic.  DO NOT ever step foot in there again, and stay the [F….] away from my husband and family!!!!!!! And remember I warned you.”  The next day Nicolai emailed Edwards, “You are fired and no longer welcome in our office.  If you call or try to come back, we will call the police.”

Last month, Governor Cuomo signed five bills into law that strengthen New York law’s prohibitions against sexual discrimination. Each of these bills form a part of the Women’s Equality Act, and collectively address such areas as equal pay for equal work, sexual harassment, familial status discrimination, attorneys’ fees in sexual discrimination and sexual harassment cases, and reasonable accommodations for pregnant employees. The laws, which are described below, will take effect on January 19, 2016.

Pay Equity

Although New York law already prohibits employers from paying women less than men for performing the same work, the bill strengthens such prohibitions by (1) making it unlawful for an employer to prohibit employees from sharing their wage information with each other, thereby enabling employees to determine whether there exists a salary disparity between them and their coworkers; (2) requiring an employer to show that pay differentials between men and women are due to “a bona fide factor other than sex, such as education, training and experience,” and otherwise limiting the circumstances under which pay disparities between men and women might be permitted; (3) increasing the amount of damages in cases of sexual pay disparities based upon sex from 100% liquidated damages to 300%.

On March 25, 2015, the United States Supreme Court issued its awaited decision in Young_v._UPS_(12-1226), in which the Court set forth the standard to be used in analyzing sex discrimination cases involving an employer’s failure to provide pregnant employees with work accommodations.  Although the  Court did not rule that employers are required to provide reasonable accommodations to pregnant employees per se, the effect of its analysis compels that accommodations be considered and provided.

The case involves a driver for UPS, Peggy Young, whose physician restricted her from lifting more than 20 pounds for the first 20 weeks of her pregnancy, and then 10 pounds for the remainder of her pregnancy.  UPS policies required that employees be able to lift 70 pounds alone, and up to 150 pounds with assistance.  As a result, UPS did not permit Young to work during her pregnancy, and she ultimately lost her medical coverage.  UPS’s policy did, however, provide accommodations to employees who could not meet the lifting requirements, but only where workers  (i) were injured on the job; (ii) had a “disability” under the Americans with Disabilities Act (ADA); and (iii) lost Department of Transportation certifications.  According to UPS, because Young was not included within one of these three categories, UPS did not discriminate against her.  Young argued that UPS  discriminated against pregnant employees because it maintained light duty policies for the three categories of employees, but not for workers who were pregnant.  Consequently, she argued, UPS violated the Pregnancy Discrimination Act of 1978 (PDA), which extended the prohibitions of sex discrimination contained in Title VII of the Civil Rights Act of 1964 to discrimination on the basis of pregnancy.

The Supreme Court rejected both Young’s and UPS’s interpretation of the PDA as they related to the issue of pregnancy accommodations.   According to the Court, the law permits “an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate nondiscriminatory, nonpretextual reason for doing so.”  As a result of this principle of employment discrimination analysis, a pregnant worker can establish a prima facie case by showing that she belongs to the protected class, sought an accommodation, that the employer failed to accommodate her, and the employer accommodated others “similar in their ability or inability to work.”  If the employee is able to meet this burden, then the employer must come forward with some evidence of a legitimate nondiscriminatory reason for not granting the accommodation to the pregnant worker.  Although under the traditional analysis, the employee would only be able to rebut the nondiscriminatory reason by showing that it was not the real reason motivating the employer’s refusal to accommodate, the Supreme Court appears to have taken a slightly different approach.  According to the Court, the employee would be permitted to a jury trial if she could produce sufficient evidence that the employer’s policy places a “significant burden on pregnant workers,” and the employer’s legitimate nondiscriminatory reasons are not strong enough to “justify the burden.”  Under such circumstances, with due consideration given to the burden imposed, an inference of intentional discrimination could arise.  Thus, an employee might be able to prove pregnancy discrimination where she could show that the employer accommodates a large percentage of nonpregnant workers, while refusing to accommodate a large percentage of pregnant workers.

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance applicable to the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), concerning pregnancy-related conditions.  Pregnancy discrimination implicates both the PDA and ADA as well as other federal and New York statutes.

The PDA was enacted in 1978 to clarify that discrimination based upon pregnancy, childbirth or related medical conditions constitutes sex discrimination, in violation of Title VII of the Civil Rights Act of 1964 (Title VII).  Generally, under the PDA, employers are required to treat women affected by pregnancy, childbirth, or related conditions the same as other applicants or employees with respects to all aspects of employment.

The ADA does not consider pregnancy to be a disability, although pregnant employees may have impairments related to their pregnancies that qualify as disabilities under the ADA.  Following 2008 amendments to the ADA, it is much easier for an employee to demonstrate that an impairment rises to the level of a statutory disability.  Thus, under the ADA, reasonable accommodations must be given to employees who suffer from a pregnancy-related disability.

Recently, the New York City Council amended the New York City Human Rights Law to specifically require that a covered employer is specifically required to reasonably accommodate the pregnancy of an employee.  Although the Americans with Disabilities Act, as well as New York state and New York City law already requires employers to provide reasonable accommodations to employees who suffer from disabilities, including those related to pregnancy and child birth, the New York City amendment specifically address pregnancy, regardless of whether it leads to conditions deemed to be disabilities under the law.

According to the New York City amendment, which takes effect on January 30, 2014, employers with four or more employees must accommodate an employee’s pregnancy, childbirth, and related medical condition, if such accommodation would permit the employee to perform the “essential requisites of the job.”

An employer is not required to provide a reasonable accommodation if (1) the employer is unaware that the employee is pregnant, has given birth, or has a related medical condition; (2) providing the reasonable accommodation would cause the employer an “undue hardship”; or (3) the employee would not be able to perform the essential requisites of the job even with the reasonable accommodation.

Rarely do commercials instruct the public on anything more than the nature of the products they are pushing. From time to time, however, some advertisement campaigns go the extra mile to do good and contribute to the public’s recognition of society’s own prejudices and biases. Recently, Pantene Phillipines addressed the double standards women are subjected to at work, while simulatenously promoting the Pantene brand.  Sexual discrimination is not just about thinking that women may not be “as good as” men in the workplace. It also includes the perception that they should not be, resulting in situations where hard-working and persuasive women are viewed unfavorably, because those attributes don’t fit into traditional gender stereotypes.

Pantene’s ad, which contains no dialogue, is extremely effective in highlighting this form of gender inequality and discrimination. The ad struck Sheryl Sandberg, Chief Operating Officer at Facebook, prompting her to tweet that it had earned the “Lean In prize of the day.” See the ad here:  Labels Against Women.

Yesterday, the United States Supreme Court issued its ruling in Vance v. Ball State University (No. 11-556), which considered who qualified as a supervisor for purposes of Title VII of the Civil Rights Act of 1964. The determination of this issue was critical because employer liability for unlawful harassment under Title VII is less difficult to establish when the harasser is a supervisor, and not just a coworker of the victim. Justice Samuel Alito wrote for the majority that a harasser is not a supervisor unless he or she has the power to “take tangible employment actions against the victim.”

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In Gail Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., et al., 12-3489-cv, April 26, 2013, the plaintiff filed claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that an affair that one of her brothers had with another worker in their family business created a sexually hostile work environment, and that following her complaints, both of her brothers retaliated against her. The lower court dismissed both claims, and the plaintiff appealed only the dismissal of her retaliation claims.

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In 2005, the New York City Council amended the New York City Human Rights Law (“NYCHRL”) to make it clear that courts should construe New York City’s anti-discrimination protections more broadly than federal discrimination protections. Under the Local Civil Rights Restoration Act of 2005, the New York City Council alerted courts to their mistaken assumption that interpretations of the NYCHRL should be coextensive with federal and New York State discrimination law. Consequently, courts began construing the NYCHRL much more broadly and in favor of discrimination claimants. Now, the Second Circuit Court of Appeals (which covers New York, Connecticut and Vermont) has confirmed that the NYCHRL is broader in its protections and application.
In Mihalik v. Credit Agricole Cheuvreaux North America Inc. (11-3361-cv) (April 26, 2013) , the Second Circuit reversed a grant of summary judgment in favor of the employer on plaintiff’s sexual discrimination, sexual harassment, and retaliation claims. Specifically, the Second Circuit found that the District Court had applied federal standards in determining whether the employer was liable under the NYCHRL
The court summed up its conclusions as follows:

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Following a two-week trial, a jury returned a verdict finding that the employer had subjected a class of female employees to a sexually hostile work environment. The jury awarded compensatory and punitive damages to the class of employees who had been sexually harassed. The court, however, declined to impose injunctive relief to ensure that the sexual harasser would not be in a position to harass women in the future.
The Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, reversed and held that under the circumstances of the case, injunctive relief was necessary to prevent future sexual harassment.
In Equal Employment Opportunity Commission v. KarenKim, Inc., 11-3309-cv, the Second Circuit determined that the employer had not adopted adequate measures to ensure that the sexual harassment would not recur. The court noted that the sexual harasser and owner of KarenKim were involved in a romantic relationship, which meant that he might still have access to the employees even if he were no longer technically employed as a supervisor. In addition, the court noted that the complaint procedure adopted by KarenKim to prevent future sexual harassment following the lawsuit was ineffective in that it required that complaints be made in writing and within 30 days of the alleged harassment in order to be acted upon. This coupled with the fact that the initial sexual harassment went unchecked for years prompted the Second Circuit to order the New York federal district court to impose the injunctive relief requested by the EEOC.

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