Information and guidance on every phase of employment
Q: I am a New York employer. What are the key parts of the new amendments to the New York Human Rights law and when do they go into effect?
A. As we detailed in an earlier post, New York state recently passed a bill that makes numerous changes to the New York Human Rights Act (“NYHRL”). Governor Cuomo signed the bill on August 12, 2019, and most of the amendments go into effect on October 11, 2019.
Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?
A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment. Governor Cuomo has not yet signed the bill, but is expected to shortly.
As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.
Q: Is it lawful to require employees or applicants to style their hair in a certain manner?
A: As with most employment-related questions, the answer is it depends. While employers are generally allowed to adopt basic grooming policies, employers should seek to adopt policies that do not have a disparate impact on minorities and other persons protected by anti-discrimination laws.
Q. Is there anything I should look out for in documenting my legitimate business reason for terminating an employee?
A. The United States Appeals Court for the Seventh Circuit (covering Illinois, Indiana and Wisconsin) recently issued an opinion that serves as a warning that inconsistent explanations of an employer’s reason for an adverse employment decision could support an inference of retaliation. In Donley v. Stryker Sales Corp., No. 17-1195 (7th Cir. Oct. 15, 2018), the plaintiff filed an internal complaint with the company’s human resources department that a manager was harassing a female coworker. The human resources director investigated the complaint and the company then terminated the manager, albeit with a hefty severance package. Shortly after the termination, however, the plaintiff also was terminated. The company claims that it fired the plaintiff for taking improper photographs of the CEO of a vendor, who was drunk at a work event approximately six weeks prior to plaintiff’s harassment complaint.
Q. Does Pennsylvania State law protect employees against discrimination based on their sexual orientation and gender identity?
A. The PHRC, however, recently released new guidance expanding the definition of the term “sex” under the Act to include LGBT status. The PHRC is an agency of the executive branch of the…
Q: Can an employer discriminate against members of the LGBT community on the basis of the employer’s religious beliefs?
A. On June 4, 2018, the United States Supreme Court ruled in favor of a bakery that refused to bake a wedding cake ordered by a same sex couple because of the baker’s religious beliefs. The baker argued that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and that it would also violate his right to the free exercise of religion. The opinion was eagerly anticipated, as it was expected that the Court would provide some clarity on the question of whether an LGBT individual’s right to be protected from discrimination trumps an employer’s or business owner’s exercise of its sincerely-held religious belief. The Court failed to address the substantive First Amendment issue, however, and instead focused its decision on the Colorado Civil Rights Commission’s failure to remain a neutral decision-maker.
Q. Can my company require its employees to sign an arbitration agreement mandating that they arbitrate all employment disputes, and limiting their ability to participate in a class action against the company?
A. On May 21, in a 5-4 opinion, the U.S. Supreme Court ruled that arbitration agreements in which…
Q. How do I help my company avoid unconscious bias in the workplace?
A. A bias is a prejudice in favor of or against one thing, person, or group as compared with another. We all have biases. Biases can be based on any number of stereotypes, whether it is race, gender, age, national origin, religion, etc. In a perfect world, individuals would not act on their biases, however, our world is far from perfect and employees can and do bring their biases to work.
Q. If a supervisor makes a comment about an employee’s age, will the company be liable for age discrimination?
A. While ageist comments are never appropriate in the workplace, an Illinois federal court recently ruled that a single age-related comment was insufficient for an employee to prevail on an age discrimination claim.
Q. My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?
A. In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.
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