New York City Human Rights Law

New York City Council strengthens Human Rights Law

The New York City Human Rights Law (NYCHRL) is already one of the strongest laws in the nation protecting worker rights. Yesterday the City Council passed amendments making it even more so. Prior amendments in 2005, known as the "Restoration Act." made it clear that the NYCHRL was to be interpreted liberally, and not limited by some courts' narrower interpretations of similar laws, such as Title VII, even though they may have similar language to the NYCHRL. One of yesterday's amendments adds language stating that "Exceptions to and exemptions from the provisions of this title shall be construed narrowly in order to maximize deterrence of discriminatory conduct." This would presumably apply to things like the "safe harbor" defense of Sec. 8-107(13)(d), which gives employers a defense to discriminatory conduct committed by an employee, if the employer took certain steps to prevent and promptly investigate complaints of such conduct.

Another amendment repealed the exceptions to the sexual orientation discrimination part of the law. Those exceptions, which applied to only the sexual orientation protections of the NYCHRL, had little practical effect, but were readily understood to be demeaning, particularly the section stating that protecting against sexual orientation discrimination did not "endorse any particular behavior or way of life."

Finally, the law was amended to provide for attorney's fees for individuals who choose to bring their cases in the New York City Commission on Human Rights. Previously, attorney's fees were only available in court actions.

The proposed amendments that effect employment law are attached.  The Mayor is expected to sign the legislation soon.   Amendments 2016 sexual orientation exceptions repeal

Amendments 2016 re construction

Amendments 2016 attorneys fees

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.

Unpaid intern not protected from sexual harassment - but was she really an employee?

In Wang v. Phoenix Satellite Television US, Judge Castel in the Southern District of New York held that an unpaid intern has no protection from sexual harassment under the New York City Human Rights Law (NYCHRL). The plaintiff in that case was a masters’ degree student at Syracuse University who was hired as an intern for Phoenix, a company producing Chinese language news. She alleged that her supervisor sexually harassed her and denied her a permanent job when she refused his sexual advances. Judge Castel held that Ms. Wang could assert her claim relating to Phoenix’s failure to hire her, but dismissed her claim for sexual harassment, holding that because Ms. Wang was not being paid, she was not an employee, and therefore not protected by the NYCHRL.The Human Rights Law does not define “employee,” and is silent on whether it includes unpaid interns. However, the court’s decision does not address whether the plaintiff should have been paid, and if so, whether that would make her an “employee” under the NYCHRL. Ms. Wang didn’t argue that she was, and did not bring a minimum wage or overtime claim. But the facts of the case may have supported such a claim. According to Ms. Wang’s complaint, her duties included assisting the reporters with shooting news footage, drafting scripts, and editing video footage. She also scripted and reported her own stories on-camera. From this description, it seems that Phoenix was violating the Fair Labor Standards Act and the New York Labor Law by not paying Ms. Wang for her work. For an internship program to be legal, the Department of Labor sets forth a six factor test, each of which must be met: 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

http://www.dol.gov/whd/regs/compliance/whdfs71.pdf . If Ms. Wang was actually performing the duties of a reporter, the internship would not pass factors 3 and 4. Presumably, if Ms. Wang didn’t script and report on her stories, a regular employee would have. Interns are not supposed to be an unpaid replacement for another employee, and an internship is not to be an unpaid, months-long trial employment. The persistence of these arrangements both unjustly enriches employers, and forecloses entire fields of employment from people who cannot afford to work for free. Ms. Wang should be entitled to be free from sexual harassment – she should also be paid for her work.

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.