New York Employment Lawyer Blog

Protections for those being discriminated against based on their sexual orientation is currently at the forefront of debate in the U.S. House of Representatives. As the current federal anti-discrimination law, Title VII now stands, protections for discrimination based on sexual orientation are not specifically included in the language of the statute. Numerous sates and localities, however, do include protections for sexual orientation in their own statutues.

It is possible that there may be a vote on the House floor in the coming weeks on the Employment Non-Discrimination Act ("ENDA") which would include sexual orientation and transgender protections. No date has been scheduled for this vote as of yet.

More information can be found here.

In the coming weeks, the U.S. House of Representatives will likely vote on the Employment Non-Discrimination Act (ENDA), which would offer protection to employees from discrimination on the basis of sexual orientation or gender identity.

The bill has 198 co-sponsors and debate on it is expected to be vigorous. Currently, sexual identity and orientation is not protected on a federal level, rather it is up to the individual state or municipality's own legislature to include it in its own human rights laws. 29 states currently do not protect against discrimination based on sexual orientation and in 38 states, sexual identity is not protected.

Additional information can be found here.

For the first time ever HUD has added on sexual orientation and gender identity to its ten year nationwide discrimination in-housing study. While sexual orientation is not federally recognized by HUD as a protected category, over 80 states including New York do recognize it as protected. HUD studies are conducted by having two testers apply to rent the same apartment with exactly the same qualifications other than their sexual orientation. This is an attempt by HUD to make the agency more inclusive to the LGBT community.

The American Civil Liberties Union has filed a civil suit under Title IX of the Civil Rights Act on behalf of a homosexual teenager, alleging that a northern New York school district, discriminated against him based on his sexual orientation. Title IX provides that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

The victim claims he suffered “relentless harassment” and threats of violence because of his sexual orientation, yet school officials did nothing to protect him. The Department of Justice testified on the teen’s behalf, and argued that the Civil Rights Act affords protection against sexual discrimination in gender identity cases, thus affording protection to homosexuals. The ACLU was pleased with the DoJ’s testimony, stating it was a “significant development” in the case.

Sen. Frank R. Lautenberg (D-NJ) joined with a bipartisan coalition of 38 Senators in introducing the Employment Non-Discrimination Act to prohibit employment discrimination based on sexual orientation or gender identity.

The Employment Non-Discrimination Act would bring equality to the workplace and finally provide basic legal protections, regardless of sexual orientation or gender identity. The Act would prohibit employers, employment agencies, labor organizations and joint labor-management committees from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity. Such protections are already in place prohibiting discrimination based on race, religion, gender, national origin, age, and disability.

The New York City Human Rights Law, which is Title 8 of the Administrative Code of the City of New York, makes it clear that gender identity is protected under the law, more specifically it is a protected classification under employment discrimination. The purpose of this law is to eliminate employment discrimination based on an individuals “actual or perceived gender.” Under the law “gender” is defined to include: actual or perceived sex; gender identity; self-image; appearance; and, behavior expression, whether or not it is traditionally associated with the legal sex assigned to an individual at birth.

Gender identity is an individual’s perception of whether they are male, female or something else. Gender expression includes external characteristics that are socially defined as being either masculine or feminine. For example, things like, dress, mannerisms, speech patterns, and social interactions.

It is unlawful for an employer, or an employee or agent thereof, to discriminate against any employee based on their actual or perceived gender with regard to recruitment, hiring, firing, promotions, wages, job assignments, training, benefits, and other terms and conditions of employment. Additionally, it is unlawful for an employer, employee or agent thereof, to retaliate against an individual opposed to an unlawful discriminatory practice or made a charge, or because an individual testified, assisted, or participated in an investigation, proceeding or hearing.

New York residents have presented Representative Jerrold Nadler with thousands of signatures from an online petition yesterday in Manhattan. The petition aims to expand the Civil Rights Act of 1964 to prevent discrimination based on sexual orientation and gender identity. Currently, the Civil Rights Act prevents discrimination on the basis of race, color, national origin, religion, and sex. Nadler was targeted because he heads Congress’ subcommittee on civil liberties. He was also an original sponsor of the Employment Non-Discrimination Act. The bill is currently pending in Congress.

On March 16, 2009 Lambda filed a friend-of-the-court brief with the Superior Court in Hartford, Connecticut, in the case of Luis Patino v. Birken Manufacturing Co. According to an Echelon Magazine article, Luis Patino alleges that he was subject to harassment during his employment, and that the harassment included derogatory language. Lambda’s brief argues that Patino’s trial court award, which is now being appealed by Birken, should stand. Birken argues that employers should not be liable for anti-gay intimidation. Lambda seeks to ensure that the court rigorously applies state anti-discrimination statutes, and that employers do not allow work environments that are hostile to gay employees.

Sexual orientation discrimination occurs when an employer treats an employee differently solely because of his or her sexual orientation, whether homosexual, heterosexual or bisexual. A growing number of state laws prohibit discrimination against individuals based on sexual orientation, or perceived sexual orientation.

For years, it has been a constant struggle for plaintiffs in New York to recover when claiming discrimination in the workplace. However, a recent decision in the matter of Williams v. New York City Housing Authority should change that. In Williams, the Court interpreted the New York City Human Rights Law, specifically the local Civil Rights Restoration Act of 2005, very broadly, making it easier for discrimination victims in New York City to successfully sue their employers.

Surprisingly, the Court ruled in favor of the defendant in Williams, however, in doing so, the court outlined new standards that employees must meet when making claims of employment discrimination. In the past, to recover on a discrimination claim, an employee had to be a victim of “protracted and pervasive” harassment. Conversely, to recover now, the employee must show that the harassment was little more than “petty slights” and “trivial inconveniences.” In fact, the reason the suit was dismissed in Williams was that the Court found that the alleged discrimination was just that – nothing more than petty slights. However, only in such an instance will the suit be dismissed, and the burden is actually now on the employer to show the harassing conduct alleged was actually petty. So not only did the Court lower the standard that an employee must meet to prove discrimination, but it also took away their burden and shifted it to the employer to prove that the harassment was of no consequence.

Such a decision will likely lead to an increase in employment discrimination suits in New York City. With a more relaxed standard, employees cannot be expected to tolerate any harassing conduct in the workplace, since they know that their employers will have to prove the conduct was petty. It would be a good idea for employers to proactively counsel their employees as to what is acceptable workplace conduct, in order to avoid employment discrimination suits.

A New York Times article published on January 4, 2009 discussed the possibility that President-elect Barack Obama may move quickly to revive legislation that would negate the Supreme Court’s decision in Ledbetter v. Goodyear Tire Company, Inc. 550U.S. 618, 127 S.C. 2162 (2007), in which the Supreme Court ruled that discriminatory acts triggering the time limits for filing an Equal Employment Opportunity Commission charge could only be unique discriminatory pay decisions, and not later pay decisions perpetuating the earlier discriminatory acts. In this case, Lilly M. Ledbetter argued that she had been discriminated against on the basis of her gender when she was given discriminatory performance evaluations that resulted in lower pay than her male co-workers, and that each discriminatory paycheck she received thereafter was a discrete violation of the law. The Court, however, ruled that “A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from past discrimination.” (Ledbetter at 2164).

Justice Ginsberg was joined by three other dissenting judges who argued that the Court’s decision reflected a “cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose.” (Ledbetter at 2188). The bill that Mr. Obama co-sponsored would have remedied any such interpretation by stipulating that each time a person receives a paycheck resulting from a decision motivated by a discriminatory bias (e.g., gender), that is a violation under the civil rights laws. Although the bill passed in the House, it was just short of enough supporting votes in the Senate. Mr. Obama and the Democratic supporters of the bill are confident that the bill would now pass in the Senate, and thus, victims of employment discrimination may be able to revive claims that otherwise would have been considered untimely. Schwartz & Perry LLP views this as a positive change and much more in line with the broad remedial purposes of civil rights laws aimed at eliminating employment discrimination.

In Sprint v. Mendelsohn, 466 F. 3d 1223 (10th Cir. 2006), the United States Supreme Court addressed the admissibility of what has commonly been referred to as “me too” evidence, meaning evidence that other employees not supervised by the plaintiff’s manager were also victimized by the same type of employment discrimination. In the Sprint case, the plaintiff was terminated as part of a reduction in force. However, the plaintiff believed that her particular termination was not business related, but rather the result of age discrimination. To support her claim, the plaintiff sought to introduce evidence from five former Sprint employees who claimed that their managers discriminated against them because of their age. None of the five former employees worked in the same department as the plaintiff and none of them worked under the plaintiff’s supervisor. Sprint argued, among other things, that the evidence was not relevant to whether the plaintiff was discriminated against and the trial court agreed, prohibiting the plaintiff from adducing evidence from employees not similarly situated to the plaintiff. On appeal, the Tenth Circuit reversed the trial court’s ruling, holding that the trial court abused its discretion by implementing a per se rule precluding such “me too” evidence. The Tenth Circuit reviewed the plaintiff’s proposed “me too” evidence and found that it was relevant. As a result, the Tenth Circuit reversed the decision and ordered a new trial with instructions to admit the challenged testimony.

Sprint appealed to the U.S. Supreme Court which, affirming the Tenth Circuit’s decision, stated that “[w]e conclude that such [me too] evidence is neither per se admissible nor per se inadmissible.” Because it was not entirely clear that the trial court was applying a per se rule, the Supreme Court remanded the case back to the trial court for a further explanation of its decision. The Court elaborated that the “question [of] whether evidence of discrimination by other supervisors is relevant in an individual Age Discrimination in Employment Act case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.”

Now, a fact-based inquiry must be made on a case-by-case basis regarding “me too” evidence so that a victim of employment discrimination will not be subjected to an absolute rule excluding such evidence as irrelevant. We at Schwartz & Perry LLP believe that the Sprint case represents a victory for employment discrimination plaintiffs who often find their claims difficult to prove because of the lack of direct evidence of employment discrimination.

An individual’s marital status has no bearing on that individual’s ability to perform a job. Why is it then that in only 20 states in the U.S., marital status is a protected classification under the various discrimination laws? Marital status is not protected under the Federal Anti-Discrimination laws, namely Title VII of the Civil Rights Act of 1964. If the majority of states and the federal government do not protect individuals on the basis of his/her marital status, it must not be that big of a problem right? WRONG!

Marital status discrimination is very real and, unfortunately becoming more and more prevalent in today’s workplace. In these tough economic times, competition for jobs has never been greater, nevertheless, determining who is hired, promoted or fired on the basis of someone’s marital status is against the law. Even asking, “Are you married?” in an interview has been held to constitute marital status discrimination.

Often times, marital status discrimination can be found where employers set different expectations for single versus married employees, or where companies provide special benefits to married individuals with families which single employees are not able to take advantage of.

The New York City Human Rights Law §8-107 provides the following:

“It shall be an unlawful discriminatory practice for an employer or an employee or agent thereof, because of the actual or perceived ... marital status ... to refuse to hire or to bar or to discharge from employment or to discriminate against such person in compensation or in terms conditions or privileges of employment.”

In this day and age, the Federal government and the remainder of the state governments should follow the example set forth by the New York City Council and adopt laws that protect individuals from discrimination based on marital status.

A recent article in The New York Law Journal discussed that sites such as Facebook and MySpace could potentially lead to employment discrimination cases.

These various social networking sites are chock full of any type of information an employer may use to make a discriminatory employment decision. These sites can easily reveal a person's age, gender, race, religion and sexual orientation. Even photographs of an individual consuming alcohol while not at work, under New York Labor Law 201-d, cannot be used by an employer to affect an employment decision.

These new issues, due to the prevalence of the Internet and other technological innovations, further demonstrate how relevant and ever-evolving the field of employment discrimination law is.

The Employment Non-Discrimination Act (ENDA), the proposed Federal legislation which passed the U.S. House of Representatives on November 7, 2007, would prohibit discrimination against employees on the basis of their sexual orientation. The bill signifies progress for gays and lesbians in the workforce that was years in the making.

However, the bill, H.R. 3685, does not offer protection to transgender employees. Language in an older version of the bill that offered protections based on gender identity was removed by Democratic lawmakers in order to make sure the bill would be passed. As a result, some activists and legislators have taken the position that the effect of forsaking the “T” of the LGBT (Lesbian, Gay, Bisexual and Transgender) group in the passage of the ENDA bill is an unacceptable compromise that only divides the LGBT community by leaving one of its groups behind. Indeed, five of New York’s Representatives in the House did not support the bill's passage because of its failure to include the language addressing protections based on gender identity.

In comparison, the New York City Human Rights Law is more progressive than Federal laws in the manner in which it protects employees. For the past several years, New York City has offered protections to transgender employees since the New York City Council amended the city's Human Rights Law in 2002. As such, New York City historically has had the distinction of having one of the nation’s most comprehensive set of human rights laws to protect employees against employment discrimination. The New York City Human Rights Law, in addition to offering protection for transgender employees, is unlike Federal laws in that it enables victims of employment discrimination to seek compensatory and punitive damages without being subject to a cap.