Taking Center Stage: The Workplace Rights of Trans Employees

In recent years, transgender people and their legal rights have finally begun to take their rightful place in the public consciousness after being vilified, ignored, and erased for far too long. Unlike traditional gender- or race-based prejudice, many Americans still feel comfortable holding consciously transphobic perspectives. Just yesterday, for example, a lawyer representing a transgender man in his employment discrimination suit against the U.S. Department of Veterans Affairs called for a Texas federal judge to recuse himself on the basis of multiple comments made during a case management conference that allegedly demonstrated bias against trans folks. The prevalence of employment discrimination and harassment against trans people is shocking. Among respondents to the National Center for Transgender Equality and the National Gay and Lesbian Task Force's 2009 National Transgender Discrimination Survey, 13% were unemployed, nearly double the national average at the time of the survey (the statistic was even more acute for respondents who were Black (26%), Latino (18%) and Multiracial (17%)). 47% of survey respondents had experienced an adverse job action (i.e. did not get a job, were denied a promotion, or were fired) because they were trans. 26% had specifically lost their job due to their gender identity or expression. Finally, a full 97% of respondents had experienced discriminatory harassment on the job. The bias underlying these numbers is a function of ignorance, and only through widespread advocacy efforts on behalf of transgender rights can we effectively combat it.

Luckily, in the context of employment law, attorneys have some surprisingly powerful tools at our disposal. Following the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which identified sex stereotyping as a form of sex discrimination, many courts have recognized that when trans employees experience discrimination based on an employer’s perception that they do not comport with stereotyped notions of what it means to be a man or a woman, they may bring sex discrimination claims under Title VII of the Civil Rights Act of 1964 in response.

For example, in Smith v. City of Salem, the court found that the plaintiff could bring a Title VII sex stereotyping claim when, after announcing she would be transitioning, she faced harassment from co-workers because they felt her “appearance and mannerisms were not ‘masculine enough.’” 378 F.3d 566, 568 (6th Cir. 2004). Following this rationale, federal courts around the country have recognized that trans people can bring viable sex discrimination claims under Title VII or other federal statutes barring sex discrimination. See, e.g.Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003). In addition to the sex stereotyping theory recognized in Smith, some courts have also recognized that discrimination based on a person’s transgender status is per se sex discrimination, as the discrimination stems from the trans person’s change of sex. See, e.g., Fabian v. Hosp. of Cent. Connecticut, No. 3:12-CV-1154 (SRU), 2016 WL 1089178, at *12 (D. Conn. Mar. 18, 2016).

New York State and City law also provide important tools in vindicating the rights of trans employees.

The New York State Division of Human Rights enacted regulations effective in January of 2016 interpreting the New York State Human Rights Law ("NYSHRL") to prohibit discrimination on the basis of gender identity and transgender status. See 9 N.Y.C.R.R. § 466.13(c). These new regulations also establish that harassment based on gender identity or transgender status is sexual harassment under the NYSHRL, 9 N.Y.C.R.R. § 466.13(c)(3), that the definition of “disability” under the NYSHRL includes gender dysphoria, a psychological condition characterized by distress because an individual’s gender at birth is contrary to the one with which they identify, that an employer may not deny a reasonable workplace accommodation to an employee with gender dysphoria, 9 N.Y.C.R.R. § 466.13(d)(4), and that harassment on the basis of gender dysphoria is harassment on the basis of disability, 9 N.Y.C.R.R. § 466.13(d)(5).

On the city side, the Transgender Rights Act, enacted in 2002, amended the New York City Human Rights Law ("NYCHRL") to prohibit discrimination on the basis of gender identity, gender expression, and transgender status. See N.Y.C. Local Law No. 3 (2002). In the New York City Human Rights Commission's 2015 enforcement guidance on trans discrimination, the Commission clarified that gender identity-based discrimination under the NYCHRL extends beyond traditional notions of discrimination, harassment, and retaliation to include instructions for employers on the use of employee pronouns and names, dress codes, and how to deal appropriately with requests for accommodation.

The strength and effectiveness of these protections only grows the more trans employees and their attorneys pursue the vindication of trans rights in court. As such, Beranbaum Menken is committed to being part of this effort by providing compassionate, effective, trans-literate representation to trans employees facing workplace discrimination, retaliation, and harassment.

Employer Who Failed to Protect Employee From Racist Customer to Face Trial

An employer’s duty to protect its employees from racial or sexual harassment on the job isn’t limited to harassment committed by supervisors or co-workers.  In some circumstances, an employer can be liable for harassment committed by customers, vendors, or other people an employee might encounter in the workplace, if the employer exercises sufficient control over them. The case of Creacy v. BCBG Max Mara Group is one example.  Beranbaum Menken LLP represents the plaintiff, Danielle Creacy, who worked as a Floor Supervisor for defendant BCBG Max Azria (“BCBG”), a retailer of women’s clothes. The BCBG store where Creacy worked was located in a Lord & Taylor (“L&T”) department store in Scarsdale NY. (The plaintiff settled with L&T before the summary judgment motion).

Creacy, an African-American, was physically and verbally assaulted by a customer, who among other things, referred to her as “you people” and “your kind.” Creacy reported the harassment to her employer, BCBG, but BCBG failed to protect her from the customer. In all, the customer came to the store three times. The last time, following BCBG’s orders, Creacy removed herself to a stock room at the back of the  store while the customer was allowed to shop. Creacy felt her exclusion from the store’s shopping area to be a form of racial segregation. After Creacy’s attempts to have the customer banned from the store be allowed to transfer to another store proved futile, Creacy quit, claiming she was constructively discharged.

The court’s decision rejected BCBG’s argument that the harassment was not “severe or pervasive,” and, therefore, not actionable. In particular, the court found significant that the customer’s behavior was physically threatening. The court also held that given the context of the harassment, a reasonable jury could find that the customer, in referring to Creacy as “you people” and “your kind,” was motivated by racial bias.

The court also found that a genuine factual dispute existed as to whether BCBG failed to adequately protect Creacy from the harassing customer. BCBG, the court found, effectively relied on L&T, the building owner, to protect Creacy. The court held that even if L&T was responsible for the safety of all store employees, including BCBG employees, BCBG, upon notice that L&T’s corrective actions were inadequate, had a duty to protect its employee by raising the issue with L&T’s corporate officials – something it did not do. Thus, the court found that BCBG’s measures to protect Creacy were inadequate, and liability for the customer’s racial harassment could be imputed to the employer, BCBG.

As to plaintiff’s claim that BCBG constructively discharged her by allowing intolerable working conditions to exist, the Court rejected plaintiff’s argument that a recent U.S. Supreme Court decision held that conditions in establishing constructive discharge, an employee needn’t prove that the employer intentionally created the intolerable conditions. The district court held that while a showing of intent, or deliberate action, is required, specific intent (i.e. the employer acted with the intention of forcing the employee out) is not. Intent, as interpreted by the district court, is a fairly easy thing to prove: the plaintiff need only show that the employer acted deliberately. The court found that Creacy showed “intent” – even if the deliberate action was BCBG’s deliberately not taking appropriate action.

Finally, the court allowed Creacy’s punitive damages claim to proceed to trial, finding that BCBG failed to provide adequate protective measures for Creacy in the face of a perceived risk that it was violating the discrimination laws. The court noted that BCBG was a sophisticated employer with 651 stores worldwide --  effectively saying that it should have known better.

The Decision is a clear statement that an employer has primary responsibility to protect its employees from third-party racial harassment, whether that third-party is a discriminatory customer at a retail store, an independent contractor performing work on the employer’s premises, or an Uber driver directed to pick up a customer known to have engaged in sexist/racist behavior. With employment relationships becoming increasingly fluid, and with more and more workers no longer in a traditional employee-employer relationship, claims of third-party harassment will likely increase in number and importance.


In New York City, an employer who discriminates on the basis of sexual orientation violates the New York City Human Rights Law and is liable for damages.  Whether workers in other parts of the country enjoy this same protection is an issue that has divided the federal courts, and the question may be headed to the Supreme Court in the next year or two. In the Second Circuit, which comprises the federal courts in New York, Connecticut, and Vermont, claims for sexual orientation discrimination are often brought under the guise of “gender stereotyping” discrimination - that is, discrimination for not acting stereotypically male or female.  So, a gay man who is harassed for allegedly acting like “a submissive sissy” has a claim.  Unfortunately, this is often fitting a square peg in a round hole.  Discrimination claims that have nothing to do with stereotypical behavior, such as an employer asking a prospective employee about their sexual orientation, and refusing to hire on that basis, are not covered under the “gender stereotyping” dodge.

This week, the Seventh Circuit, based in Chicago, took the bold step of holding flat-out that Federal law in fact forbids sexual orientation discrimination.  Earlier this year, the Eleventh Circuit, based in Atlanta, held the opposite.  For its part, the Second Circuit this week suggested, without actually ruling, that it was time to recognize sexual orientation claims under the federal civil rights laws.  This issue is at a boil, and given the split in the circuit courts appears headed to the Supreme Court soon.

Beranbaum Menken Files Landmark Infertility Treatment Coverage Lawsuit on Behalf of New Jersey Women in Same-Sex Relationships

New Jersey law requires insurance companies to extend coverage for medically-indicated infertility treatment to women who qualify as infertile under what is referred to as the New Jersey Infertility Mandate. Despite the existence of myriad diagnostic tools and techniques by which a fertility specialist may diagnose infertility independent of heterosexual intercourse, a woman may only qualify as "infertile" under the Mandate after engaging in unprotected sex with a male partner for 1 or 2 years, depending on her age, and failing to conceive. As a result, New Jersey women with female partners are often forced to pay tens of thousands of dollars out of pocket to treat their infertility in the hope of one day becoming mothers. As reported by the New York Times, last week Beranbaum Menken filed Krupa et al. v. Badolato in the United States District Court for the District of New Jersey, aimed at forcing New Jersey to expand the protection of the Mandate to all women struggling with clinical infertility in the State. As stated in the Complaint:

This civil rights case is about family and the right of all New Jersey women who dream of becoming mothers to access the reproductive healthcare they need to realize that dream on an equal basis, regardless of their sexual orientation. “Rising from the most basic human needs,” parenthood “is essential to our most profound hopes and aspirations,” just like marriage. Obergefell v. Hodges, 135 S. Ct. 2584, 2594 (2015). In fact, as quoted by Justice Anthony Kennedy in Obergefell, Cicero wrote: “The first bond of society is marriage; next, children; and then the family.” Id. (citing De Officiis 57 (W. Miller transl. 1913)). Now, as presaged by Kennedy as he extended Cicero’s first bond of society to all American same-sex couples in Obergefell, that decision also compels states like New Jersey to treat heterosexual and same-sex couples equally with respect to Cicero’s remaining bonds of society, as well. In order to protect all women who wish to have children and start families on equal footing, as required by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, because, like marriage, procreation is a fundamental right protected by the Due Process Clause of the same Amendment, and because 42 U.S.C. § 1983 prohibits the deprivation of Plaintiffs’ federal constitutional and statutory rights, New Jersey must extend the protections of its infertility insurance mandate to women in same-sex relationships.

This case will surely explore the ramifications of the Supreme Court’s landmark decision in Obergefell.

Additional media coverage from ABC Channel 7 and CBS 2 News.


Beranbaum Menken Files Pregnancy Discrimination Lawsuit

Tiffany Kantrowitz, a Procter & Gamble ("P&G") employee, sold Dolce and Gabbana beauty products at a makeup counter at Saks 5th Avenue in Manhattan.  When she became pregnant in October 2014, she began to have brief spells of nausea and dizziness.  P&G repeatedly thwarted her requests to simply sit down for a few minutes while working while she waited for her symptoms to pass.  In the months after P&G became aware that she was pregnant, it became clear that P&G refused to accommodate her because it did not want a pregnant women selling its beauty products.  P&G eventually terminated her for storing "tester" items in a company-provided clear plastic bag--a practice that was commonplace and accepted among Ms. Kantrowitz's peers. On April 18, Beranbaum Menken filed a lawsuit on Ms. Kantrowitz's behalf in federal court, alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 1981A, the American with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008, and the New York City Human Rights Law.

This case has been reported on by a number of media outlets.  A recent in-depth article discusses Ms. Kantrowitz's case in the context of the challenges working pregnant women face nationwide.


Getting pregnant and raising children isn’t something American employment law does much to encourage. The right to pregnancy leave is a meager 12 weeks and only covers larger employers, and, alone among industrialized nations, is unpaid. The pay disparity between men and women is largely the product of women being penalized for taking time off for having children, and discrimination against parents is rampant. Our ruling class views having children as a personal luxury, rather than as ensuring the future of humanity. However, in a bit of good news, the Supreme Court today leveled the playing field a bit in favor of pregnant workers. In Young v. United Parcel Service, the Court had to decide if the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000(e)(k), requires an employer to provide pregnant employees with the same light-duty options that it supplies to other employees who require light duty for other reasons. Peggy Young, a UPS driver, needed light duty because of her pregnancy. UPS had a practice of giving temporary light duty to employees who needed an accommodation of a disability under the Americans With Disabilities Act (ADA) and in a few other instances (remember, a normal pregnancy is not protected under the ADA). But, UPS’ policy was not to give light duty to pregnant employees, despite the PDA’s requirement that employers treat “women affected by pregnancy...the same for all employment-related purposes..as other persons not so affected but similar in their ability or inability to work.”

A clear and simple decision in this case would have been that if an employer gives disability accommodations to some employees, it must give them to pregnant employees. However, the majority recoiled from the idea that pregnant employees be always treated just as well as those other, fortunate employees who may enjoy accommodations - that would be granting “most-favored-nation” status to pregnant employees, and just wouldn’t do. According to the Court, there is no way that Congress intended to put pregnant employees at the top of the heap as far as access to job accommodations goes. Perhaps the Court is right.

However, the Court took a position that, practically speaking, will still entitle pregnant employees to at least most of the accommodations offered to their fellow employees. The Court held that a pregnant employee claiming discrimination in access to light duty or other job accommodations can get to a jury if she can show that “the employer’s policies impose a significant burden on pregnant workers” and that the employer’s “legitimate, nondiscriminatory” reasons for doing so are not strong enough to justify the burden. What constitutes a “significant burden” or strong enough (allegedly) nondiscriminatory reason will surely keep the district and circuit courts busy for years to come. But the Supreme Court today made it a lot harder for employers to get summary judgment on a pregnancy discrimination claim, and that’s good news for everybody.

Do Employers Have to Give Pregnant Women Accommodations? EEOC Issues New Guidance and SCOTUS Takes Up New Case

Pregnant women working in New York City have a right to receive a workplace accommodation, such as more frequent bathroom breaks, rest breaks for workers who stand, help with manual labor, or a period of recovery from childbirth. But pregnant women in the rest of the state – and most of the country – aren’t so lucky. Hopefully, that’s changing. The U.S. Equal Employment Opportunity Commission (“EEOC”) just issued a Guidance that’s a step in the right direction. While the guidance isn’t new law, it is significant and has persuasive power in court.

Why is this issue so complicated? Why aren’t pregnant women protected under current federal law? Because there’s some confusion in the courts as to whether pregnancy is always a “disability” under the ADA, and if not, whether the Pregnancy Discrimination Act requires employers to make actual accommodations to pregnant women, rather than just refrain from firing them.

In Young v. UPS, the Fourth Circuit Court of Appeals considered UPS’s policy of allowing people with disabilities to receive “light duty” accommodations. But UPS did not give the same accommodations to pregnant women who were temporarily unable to lift heavy items. The court decided that this policy was entirely legal. It didn’t discriminate against women who were pregnant – in fact, it treated all non-disabled people the same, pregnant or not pregnant, and that this is all the Pregnancy Discrimination Act requires.

The case has been appealed to the Supreme Court, which will decide it in the next term. The question is: is it discriminatory to treat pregnancy differently from other conditions that have the same requirements (like, heavy lifting restrictions).

The EEOC issued its Guidance two weeks after the Supreme Court agreed to hear the case. The timing is interesting – is the EEOC trying to influence the Court? Who can blame them? The EEOC is, after all, the federal agency charged with enforcing and interpreting the Pregnancy Discrimination Act, and if there was ever a time to make clear what the agency thinks, that time is now.

In its Guidance, the EEOC left no doubt that it reads the PDA to mean that an employer must accommodate a pregnant employee in the same way it accommodates non-pregnant employees with the same work limitations. That means, according to the EEOC, Young should be reversed because the PDA requires UPS to give Peggy Young the same kind of  light duty works that it gives non-pregnant employees injured on the job or considered disabled.

The EEOC Guidance also clarified that many pregnancy-related conditions are considered “disabilities” under the ADA, especially after Congress amended the ADA in 2008 to expand the definition of “disability.” The EEOC Guidance lists any number of pregnancy-related conditions that might require some form of accommodation or modified work arrangement, including sciatica, cardiovascular issues, post-cesarean complications, swollen legs that limit walking ability, post-partum depression, and even morning sickness.

The EEOC Guidance is a great sign for pregnant women. The spate of recent anti-worker rulings coming from the Court means we shouldn’t expect much help from them. Despite the literal words of the statute saying pregnant women must be treated like everyone else, the Court is likely to rubber stamp company policies that treat pregnant women differently from other workers with similar work restrictions. But the EEOC gives us a path forward anyway – we can still push for accommodations for pregnant women under the ADA.

And that’s important. Because without accommodations – without some recognition that being pregnant affects women’s bodies in profound ways that may affect their ability to work in the exact same manner as non-pregnant people – women will continue to be pushed out of the workforce, or to simply never even try to make it in careers that won’t accommodate slight modifications for an aching back or morning sickness.

Interns Now Protected Under The New York City Human Rights Law

As we've discussed here before, most interns are really illegally unpaid employees.  But until now, a bona-fide intern, one who is not in reality an employee, was not protected by the New York City Human Rights Law (HRL).  That meant interns might be considered fair game for sexual harassment, might be denied a reasonable accommodation of a disability, or could be denied any of the protections afforded employees by the HRL. Today, the New York City Council adopted an admirably simple amendment to the HRL that brings interns under its protection, taking effect in sixty days.  "Intern" is defined in a way that tracks much of the U.S. Department of Labor's definition.   As a part of the workplace, interns should be subject to the same protections, and have the same dignity, as the employees they work alongside.  The City Council and Mayor de Blasio deserve congratulations for so quickly and squarely addressing this issue.

Pregnant Women in NYC Get Accommodations Starting Today!

We've written before about the Pregnant Workers Fairness Act, which requires employers with 4+ employees to provide pregnant workers with reasonable accommodations for their pregnancy, child-birth, or pregnancy/child-birth related medical conditions (like, say, gestational diabetes). Such accommodations might include more frequent breaks, not having to lift heavy things for a few months, or taking some time to recover from child birth. The Act goes into effect today. It may be surprising to realize that federal law doesn't require employers to provide pregnant women with any accommodations for pregnancy or child birthUnless a pregnant worker has some other disability, under federal law employers are free to require them to stand all day without bathroom breaks and to come back to work the day after the baby is born.

This is due to a gaping hole between the Pregnancy Discrimination Act and the Americans with Disabilities Act. The Pregnancy Discrimination Act defined discrimination against women to include discrimination against pregnant women. That is, discrimination against someone for being pregnant is the same as discriminating against women.

This makes a certain amount of sense -- only women become pregnant, many of the reasons that people discriminate against women has to do with the possibility of them becoming pregnant, and many of the reasons people discriminate against pregnant workers has to do with people's stereotypes about women (i.e., that they'll become mothers and then give up on work).

The problem is that pregnant women need certain accommodations that other women don't -- like frequent rest breaks, or restrictions on how much they can carry. The only federal law that might require an employer to offer these kinds of accommodations is the Americans with Disabilities Act. But in order to get accommodations under the ADA, you have to be disabled. The law doesn't define pregnancy or childbirth as disabilities, meaning accommodations someone needs related only to pregnancy or childbirth aren't covered by the ADA.

New York City, joining in with many other localities, like the state of California, is filling in the gaps and providing its pregnant residents with better protections. Under the New York City law, employers with 4+ employees must provide reasonable accommodations for pregnancy, child birth, or related medical conditions. "Reasonable accommodation" is a bit of a term of art, but it essentially means that the employer has to provide accommodations to help the employee do their job so long as the accommodation does not constitute an "undue hardship" on the employer. If you are pregnant and your employer is refusing to accommodate your pregnancy, child birth or related medical condition, contact a lawyer.

Age Discrimination on the Rise

If any more confirmation was needed that age discrimination is virulent, the New York Times has published a couple of articles this summer showing the difficulties older workers face. In an article from July 22, 2013, the Times reported that according to the U.S. Bureau of Labor Statistics, it typically takes an older person who is laid off two to six months longer to find another job than it takes a younger worker -- and the new job is likely to pay substantially less. One study found that a younger job applicant was 40% more likely to receive an interview than a person 50 or over. Younger job applicants needed to send out between 16 and 19 resumes in order to get an interview, while older workers needed 23-27 resumes.In another article, from August 26, 2013, the Times reported that older workers laid off in the Great Recession have had an especially hard time finding work. Less than half, or 47%, of people between the ages of 55 and 64 have gotten new jobs, and for those over 65, the re-employment rate is just 24%. This compares to a re-employment rate of 62% for 20- to 54- year olds. And the jobs that older people find typically pay less than their former job: 18% less for older workers, compared to a 6.7% pay cut for younger workers. And what are the courts doing about age bias? Well, the U.S. Supreme Court is, if anything, going backwards in assuring the enforcement of laws barring age discrimination. In 2009, the Supreme Court, in the case, Gross v. FBL Financial Services, Inc., made proving age discrimination harder than proving other kinds of discrimination (like sex or race), ruling that older workers could no longer prove discrimination by showing that age bias was a “motivating factor” in a hiring or firing decision. Now, older workers have to show that age bias was the “but for” cause of the adverse employment action. Back in 2010, I wrote an article, see “Accessing the Impact of ‘Gross’ on Employment Discrimination Cases,” strategizing how to minimize the impact of the Supreme Court’s decision. Yet, from the perspective of four years after Gross, it appears that if nothing else, the decision has emboldened employers to think they can lay off older workers without legal consequences. Fortunately, here in New York City, we have the New York City Human Rights Law which provides greater protection for victims of discrimination than do the federal anti-discrimination laws. Under the NYCHRL, which requires that bias play “no role” in employment decisions, an employee can still prove discrimination by showing that age bias was a “motivating factor” in the decision. Beranbaum Menken LLP is active in representing older workers fighting age discrimination. Currently, the firm is litigating a nation-wide collective action age discrimination lawsuit against a logistics and transportation company, Mainfreight, Inc. We also are representing individuals in age discrimination lawsuits against such major institutions as JPMorgan Chase.

Second Circuit Reinforces Rights of Workers with Disabilities

The Second Circuit recently reaffirmed the requirements of the Americans with Disabilities Act ("ADA"). As a general rule, individuals with disabilities are entitled to "reasonable accommodations" so long as they can perform the "essential functions" of their job. For example, if someone who is blind is a great computer programmer -- and can do all the things computer programmers can do, so long as he has a minor accommodation (like a text-to-voice software) -- then he is protected by the ADA. Employers often like to claim that virtually everything an employee does is an "essential function" of their job. However, courts are not so quick to take the employer's version of events. In determining whether something truly is an "essential function," the courts look to job descriptions as well as the actual circumstances of the person's employment. Simply saying that something is "essential" after being sued isn't sufficient to get an employer off the hook in a  disability discrimination lawsuit. As the Second Circuit quoted,  "A court must avoid deciding cases based on unthinking reliance on intuition about the methods by which jobs are to be performed."

In the case McMillan v. City of New York, the employee worked for the City of New York for 25 years, despite suffering from schizophrenia. His condition was manageable so long as he took medication. However, the medication made him drowsy in the mornings and thus made it difficult for him to arrive to work on time. The question was then -- is arriving to work on time an essential function of McMillan's job? If he's allowed to come in at 11:00 sometimes (i.e., if he receives this reasonable accommodation), then is he still performing the essential duties of his job?

The lower court held that, because McMillan's disability prevented him from coming to work on time, he was not able to perform the essential functions of his job. However, the Second Circuit reversed, telling the lower court that it had to look at the facts more closely. In this situation, the City had a "flex time" system, whereby workers could come in somewhere between 9:00 and 10:00, and aren't considered "late" unless they arrive after 10:15. So, if workers have a one-hour window of discretion in deciding when to get to work, is being on time really an "essential function" of their job? Moreover, McMillan's "lateness" extended only to about 11:00, making him only 45 minutes later than the official cut off time. Also, he would make up the work later in the day, to ensure that he was putting in as much time as he was required.

Of course, the case is not over. The lower court was ordered to reconsider the question of "essential functions" in light of the circumstances of the case. However, the Second Circuit did reaffirm that courts can't just take an employer's word about what job duties are "essential."  While it might be nice to have all workers show up at 10:15 every day, if it's not necessary for the job to be performed properly, it shouldn't prevent otherwise qualified individuals from getting a job just because they have a disability.


The Court Closes Doors on More Discrimination Cases

The Court this term has made enforcing Title VII of the Civil Rights Act harder than ever. In one opinion, discussed here, the Court made it harder to bring sexual harassment suits against employers by narrowing the definition of a “supervisor.” In Nassar, the Court also made it harder to prove unlawful retaliation. Federal law makes it unlawful for an employer to retaliate or punish an employee for opposing discrimination or making a complaint of discrimination. Courts have long recognized the importance of this anti-retaliation provision, without which employees would be unable to protest discrimination for fear of being disciplined or fired. The Supreme Court, however, has now given retaliation claims second-class status, watering down this important enforcement provision.

Classically, employment discrimination claims are proved as follows: someone protected by federal law (say, minorities or people who oppose discrimination) suffers an “adverse action” at work – they’re treated worse than others, or they’re fired or demoted. The employer then can give a reason for the different treatment – say ,because the employee was late a lot. The employee could win the case by proving either (1) that the excuse was false (actually, she wasn’t late, or she was as late as everyone else who worked there) or (2) that even though the excuse was true, the employer was also motivated by unlawful reasons (i.e., she was late a lot, but the employer also said he was sick of working with women). The second example is called a “mixed motive” case – where the employer is motivated by two reasons at once, one of which is unlawful (you can’t fire women for being women).

The facts in Nassar constitute a classic example of a “mixed motive” case. The case involved a Muslim doctor working at a University Hospital, who alleged anti-Muslim discrimination by one of his supervisors. To escape his supervisor’s harassment, Dr. Nassar arranged to resign his faculty position at the university to work at a university-affiliated clinic. The university agreed to this, and sent him a formal offer letter. Prior to beginning work at the clinic, Dr. Nassar wrote a letter to the University’s faculty members and the Chair of the Department, explaining that the he was leaving his faculty position was because of his supervisor’s discriminatory treatment of him. The Department Chair, angry about the accusations of discrimination against the supervisor (who worked under him), took matters into his own hands and blocked Dr. Nassar’s appointment at the clinic – for which he had already been made a formal offer. The University claimed that Dr. Nassar wouldn’t have been able to work at the clinic anyway, as University rules require clinical doctors to also hold faculty positions.

That is – there appeared to be two reasons Dr. Nassar lost his appointment: (a) an unlawful one (to retaliate against him for complaining of discrimination); and (b) a lawful one (because the arrangement technically violated university rules).

Had this been a regular discrimination case, that would have been the end of the story. Even if an employer has a perfectly legitimate reason to terminate someone, if they are also motivated by, say, racism or sexism, that still violates federal law. Employees – even ones who would be fired anyway – have a right to be free of unlawful discrimination. It’s one thing to be fired for being late, it’s another thing entirely to be fired for being late and to be told that you – because of your gender or race – are an unfit worker.

The judge – like many other judges around the country– told the jury just that. If you find that Dr. Nassar lost his appointment even in part in retaliation for his complaint of discrimination, then he must be awarded damages. The jury found that retaliation was indeed a factor in the University’s decision and awarded Dr. Nassar substantial damages.

The Supreme Court, however, overturned the verdict. The Court ruled that retaliation is different from discrimination (even though it shows up in the very same statute). The Court then indicated that a “more demanding” standard of proof is required for retaliation cases. The Court ruled that a plaintiff must prove that they suffered an employment action that would not have happened “but for” the retaliatory motive (i.e., “but for” the letter Dr. Nassar wrote, he wouldn’t have lost his appointment).

The “motivating factor,” if not the “but for” cause, behind the Supreme Court’s decision was to reduce the number of retaliation cases that can be heard by juries. The Court cited (without any evidence whatsoever) the fact that too many frivolous retaliation claims were being brought in federal court, and that this new rule would help reduce the number of frivolous retaliation claims – by reducing the total number of retaliation claims across the board.

Of course, the idea of courts trying to stamp out “bad” cases by reducing the total number of cases is problematic – that means that many people whose federal rights have been legitimately violated will be shut out of court just so that courts don’t have to bother dismissing other, worse claims.

The number of retaliation claims brought to the U.S. Equal Employment Opportunity Commission has been increasing. But that is hardly proof that some, or most, of those claims are frivolous. Those same statistics can equally support the argument that employers will do whatever they can to get rid of a whistleblower or someone who claims about unlawful conduct. Given the number of recent, high-profile news articles about leaks and whistleblowers, it would hardly be surprising to find employers cracking down.

The Court’s decision in Nassar makes proving retaliation claims in the federal courts more difficult. How much more difficult depends on how the lower courts interpret the “but for” standard. But it is clear that at least five members of the Supreme Court are determined to limit the rights of victims of workplace injustice – meaning we all are just going to have to work that much harder.

Supreme Court narrows who is a "supervisor" under Title VII

Few things in employment law are more convoluted than the rules the Supreme Court has made for holding employers responsible for sexual harassment at the workplace. Those rules anticipate three possible situations: 1. The harassment is done by a supervisor, and results in a "tangible employment action," such as getting demoted, fired, suspended, or losing salary. Think of the boss firing his assistant for refusing to go out with him. When this happens, the employer is automatically liable for the harassment.

2. The harassment is done by a supervisor, but there is no tangible employment action. Think of the boss hanging pornography at his desk and constantly making unwanted sexual advances on his assistant. When this happens, the employer is liable for the harassment, but can get out of trouble if it can prove that a) it took reasonable care to prevent the harassment, and to correct it if it did occur, and b) the victim unreasonably failed to take advantage of the procedures available to correct the harassment. So if a supervisor harasses a victim, without a tangible employment action, and there weren't effective workplace procedures in place, the employer is liable.

3. The harassment is done by a co-worker. Here, the employer is liable only if the victim can prove the employer was negligent in controlling the workplace. Think of the assistant being harassed daily by a salesperson, with everyone in the office, including the boss, aware of it, but the employer does nothing - the employer is probably liable. But if the employer had no reason to believe that the harassment would happen, and took steps to stop it as soon as it learned the harassment happened, the victim is going to have a hard time winning that case.

So, victims of sexual harassment have an easier time of it if they can show their harasser is a supervisor. Of course, that means the Supreme Court wants to make it harder to show someone is a supervisor. In Vance v. Ball State, decided on June 24th, Justice Alito's decision held that to be a supervisor for Title VII purposes, that individual must have the power to take a tangible employment action against the victim. This is contrary to the rule put forth by the Equal Employment Opportunity Commission (EEOC), which provided someone could be a supervisor if they controlled the day to day events in the victim's workplace. The Vance decision also overturns the longtime rule in the Second Circuit, which similar to the EEOC's rule, defined a supervisor as someone who had the authority to direct the victims daily activities. Mack v. Otis Elevator, 326 f.3d 116 92d Cir. 2003). Now, to be considered a supervisor, the harasser must have the authority to hire, fire, promote (or fail to promote), reassign with different responsibilities, or change salary or benefits.

What remains to be seen is how courts, under this new rule, will react to employers who try to artificially limit the number of supervisors by requiring all tangible employment decisions to be approved by a few, senior managers, or even a single owner for small employers. The Vance decision addresses this briefly, and implies that if the real authority lies with the lower level employee who recommends tangible employment actions, with the more senior employee not truly exercising independent judgment over tangible employment actions, the lower level employee will be considered a supervisor under Title VII. But time will tell how much input a more senior manager needs to have before his subordinate is no longer considered a supervisor.

What is clear from Vance is that a harasser with the ability to make a victims workday unpleasant - as in a famous case where the harasser told his victim, "go out with me or you'll be cleaning toilets for a year," will only result in employer liability under Title VII if the employer is negligent in some way.

There is good news, however, for employees in New York City. The New York City Human Rights Law (HRL) makes employers automatically liable for harassment caused by an employee who "exercised managerial or supervisory responsibility." NYC Administrative Code 8-107(13)(b)(1). Prior to Vance, the only New York State court to consider the question adopted the less restrictive EEOC and Second Circuit definitions of supervisor; see O'Niel v. Roman Catholic Diocese of Brooklyn, 927 N.Y.S.2d 818 (N.Y. Sup. Ct. April 27, 2011). This reasoning should survive the Vance decision, since the HRL, by its own terms, is to be interpreted broadly and independently of Federal courts' interpretation of Title VII. So, in New York City at least, to be a supervisor one need only have day to day authority over an employee, and need not have the power to hire, fire, demote, etc.

EEOC Sues for Discriminatory Use of Criminal Background Checks

The federal Equal Employment Opportunity Commission announced yesterday that it has filed two lawsuits, against BMW and Dollar General, for discriminatory use of criminal background checks to terminate employees or refuse to hire applicants. The EEOC is claiming that both companies used blanket exclusions or other across-the-board policies concerning criminal convictions, and that these policies tended to disproportionately affect African American applicants (i.e., the policies had a "disparate impact" on African Americans). Federal law does not protect individuals with criminal convictions or arrest records from discrimination, per se, so background checks only run afoul of the law if they result in (provable) discrimination. For example, screening out applicants with arrest records often has a disparate impact against blacks, who are disproportionately likely to be arrested, especially for low level crimes. For example, nationwide, blacks are 3.6 times more likely to be arrested for marijuana-related offenses than whites, despite the fact that government surveys show whites smoking marijuana at higher rates than blacks.

The law in New York State, however, is substantially more protective than federal law of people with criminal records. Employers in New York aren't allowed to ask applicants about arrests that don't result in conviction. Employers with more than 10 employees may only consider conviction records where the conviction has a "direct relationship" to the job in question, or where the applicant poses a real risk to property or personal safety.

Exciting Developments for Women’s Rights in New York

With civil rights legislation generally stalled in Congress, there is a very real chance for the expansion of women’s rights in New York State. Governor Cuomo recently introduced the Women's Equality Act, his ten-point program to provide women greater protection in and outside the workplaces. Five of the Women's Equality Act’s ten points relate directly to women’s equality on the job. Those five points are:

• Amending the New York State Equal Pay Act to narrow the defenses that employers can raise for paying women lower wages than men who do similar work; to increase liquidated damages (a kind of punitive damages) to three times the actual wage loss; and to protect employees against retaliation for sharing wage information with coworkers.

• Amending the State Human Rights Law to protect victims of sex harassment in establishments with fewer than four employees. Right now, an employer must have at least four employees for the State anti-discrimination and anti-harassment laws to apply.

• Attorney's fees will be available under the State Human Rights Law in sex discrimination cases. This part of the law actually does not go far enough, and through the New York chapter of the National Employment Lawyers Assn., Beranbaum Menken LLP is working to get that part of the bill changed, so that all victims of discrimination who prevail in litigation, not just women, are entitled to attorney’s fees. Without the right to attorney’s fees, lawyers will be reluctant to take cases on behalf of low and middle income workers.

• Amending the State Human Rights Law to cover discrimination based on familial status – meaning an employer would not be able to discriminate against employees because they are single, married, have or do not have children.

• Amending the State Human Rights Law to require that employers offer reasonable accommodation for pregnancy related conditions.

The Women's Equality Act is very significant legislation that promises to fill some important gaps in New York State’s employment laws as they apply to women. The current Legislative session ends on the 17th of June. If you want to help get this legislation passed, the best thing you can do is to call Senator Dean Skelos (Rep. leader) 518-455-3171 and Senator Jeff Klein (Dem. Leader) 518-455-3595. You will either get the voice mail or phone answerer. All you need to say is that you are a New Yorker; you support the Women's Equality Act and all you ask of the Senator is that he allows the bill to go to the floor for a democratic vote. It is a matter of process. Also, you should call or email your own Assembly person and senator, tell her/him that you are a constituent and urge their support of the bill.