Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

Hair Discrimination

New York City Styles Hair Discrimination

On February 18, 2019, the New York City Commission on Human Rights released enforcement guidance about discrimination based on hair. “Hair discrimination” is not per se illegal under either New York State or New York City law. However, this guidance notes that race discrimination, especially anti-black discrimination, takes many explicit and implicit forms. Thus, the New York City Commission’s guidance explains that discriminating against someone because of their hair can constitute employment discrimination.

This appears to be the first legal guidance of this nature in the United States. It focuses on “anti-Black” hair discrimination.

What Is “Hair Discrimination”?

The new guidance proclaims that:

“The New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.”

The guidance contains more detail, noting “this includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

Source of Legal Protections

The New York City Human Rights Law does not specifically prohibit hair discrimination. It does broadly prohibit race discrimination in employment and other areas.

This guidance from the New York City Commission on Human Rights does not modify the law itself. Instead, it addresses how discrimination based on hairstyle implicates existing protections. In addition to race, the guidance mentions prohibitions against religion, disability, age, and gender-based discrimination. If an employer uses hair as a proxy for any of these protected characteristics, their actions might violate the NYCHRL. But the guidance focuses on race, and specifically Anti-Black, discrimination.

The NYCHRL applies to employers in New York City with at least 4 employees.

The separate New York State Human Rights Law covers employers throughout the entire State. Though similar legal arguments might be available under the State law, this guidance only pertains directly to the NYC law.

Black Hairstyles as Protected Characteristics

Again, the NYC Commission on Human Rights hasn’t actually changed the law itself. An employee who tries to file a complaint based on their hair will still need to check a different box, such as “race,” as the basis of the discrimination. Nonetheless, this enforcement guidance does go so far as to assert that “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”

The full scope of this newly identified protection remains uncertain. Employers defending against claims based on hair discrimination will likely challenge aspects of the guidance in the future.

According to the guidance: “There is a strong, commonly-known racial association between Black people and hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs, and employers are assumed to know of this association.”

Does this mean that employment decisions based on these hairstyles are automatically discriminatory?

Impact on Employee Grooming Policies

There’s little doubt from reading this new guidance that the NYC Commission on Human Rights takes a very broad view on hair discrimination prohibitions. Despite allowing that an employer might have legitimate business reasons for requiring employees to have neatly groomed hair, virtually any restriction that disadvantages anyone with a hairstyle “associated with Black communities” will be legally suspect. To this end, the guidance observes, “an employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”

[Click here to review the full guidance document.]

What Does This Mean for New York Employers?

As the New York City Commission on Human Rights concludes in this guidance, employers within NYC should promptly review their grooming and appearance policies. The Commission further encourages employers to “ensure [these policies] are inclusive of the racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.”

Outside of New York City, employers throughout the State should still heed this guidance as a warning. The New York State Division of Human Rights has not issued related guidance on this topic. But it may proceed with similar enforcement sentiments. The state employment discrimination laws protect the same underlying characteristics (including race) that the NYC Commission relies on to ban hair discrimination.

 

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New York Whistleblower Laws

New York Whistleblower Laws

New York is an at-will employment state, which theoretically means employers can terminate employees for any reason at any time. However, there are statutory exceptions. These include whistleblower laws intended to encourage employees to report wrongdoing and protect whistleblowers from retaliation.

What Is a Whistleblower?

The origins of the term “whistleblower” date back to the 19th century. The word is based on the use of a whistle to alert a crowd about a dangerous situation or illegal action. The phrase eventually became associated with police because they often used a whistle to alert the public or fellow police officers.

New York has several statutes that provide whistleblower protections. The most widely applicable is New York Labor Law section 740. Under this law, a whistleblower is an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.”

Employees who testify concerning potential misconduct or refuse to participate in illegal activity would also receive whistleblower protection.

Internal Reporting

The majority of whistleblowers report internally to their employer. These whistleblowers report to fellow employees, superiors, or anonymous reporting mechanisms, such as hotlines. These hotlines may help foster a positive workplace culture where employees are more likely to report potential misconduct because they do not fear retaliation.

External Reporting

On the other hand, external whistleblowers report misconduct to entities outside the workplace. These entities include lawyers, the media, police departments, watchdog agencies, or government agencies. Occasionally, these external whistleblowers are motivated by a monetary reward.

Healthcare Whistleblowing

New York Labor Law section 741 provides special rules concerning the healthcare industry. The law is most concerned with “improper quality of patient care” and is intended to encourage the reporting of these types of situations.

The law defines “improper quality of patient care” as “any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient.”

Government Employees

New York Civil Service Law section 75-b provides additional whistleblower protections for employees of state and local governmental entities.

Under this law:

“A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.”

In some scenarios, public employees may also have Constitutional free speech protections regarding whistleblowing.

What Constitutes Retaliation?

Employers cannot retaliate against whistleblowers for reporting misconduct. Retaliation occurs when an employer takes an adverse employment action against a whistleblower in response to their whistleblowing. Examples of adverse employment actions include firing, giving undesirable assignments, and harassment.

You can read more about preventing retaliation generally here.

Consequences of Retaliation Against Whistleblowers

Employees who have been unlawfully retaliated against may bring a civil action against their former employer. If the court finds in favor of the employee, it may order relief including:

  • Injunctions to stop further violations;
  • Reinstatement to the employee’s former position or an equivalent position;
  • Reinstatement of full fringe benefits and seniority status;
  • Compensation for lost wages and benefits; and
  • Employer payment of reasonable costs, disbursements, and the employee’s attorney fees.

The exact remedies will depend on the specific legal claims and whistleblower laws at issue in a particular case.

What Can Employers Do?

Obviously, the best approach would be to avoid legal infractions or other activity that would cause employees to consider blowing the whistle. But, even then, some employees might still believe that inappropriate conduct is occurring within their workplace.

It is generally illegal for employers to require their employees to report potential misconduct internally before informing outside agencies. However, employers can encourage this approach by encouraging internal reporting, providing anonymous mechanisms, and promising to protect whistleblower confidentiality.

More heavily regulated businesses may be at greater risk of facing allegations from whistleblowers. In addition to the general New York laws discussed here, some industry-specific laws and regulations at both the state and federal level include whistleblower protections.

It is always important to confer promptly with an experienced attorney to determine the exact legal parameters and appropriate responses when facing a whistleblower situation.

Love Contracts

Love Contracts Under #MeToo

Does your human resources department deal with love contracts? If you think this is a crazy question, then you probably haven’t gone down this road before. But these are real legal documents that some companies use when co-workers become involved in romantic relationships. Love contracts (or office relationship contracts) have never been overly commonplace. And the #MeToo movement and the related heightened attention on workplace sexual harassment issues, perhaps ironically, may be revealing even more reason not to use them.

What Are Love Contracts?

You might sooner think of a prenuptial agreement than the type of contract we’re talking about here. But these love contracts are designed primarily to protect employers, not the people who are, well, in love! However, the couple might receive some benefit as well–the ability to continue their relationship without forfeiting their jobs.

There is no straightforward legal definition of a “love contract.” But they usually address these items (perhaps among others):

  • Acknowledgment of a consensual romantic relationship
  • Reiteration of the company’s equal opportunity and anti-harassment policies
  • Guidelines for appropriate workplace behavior
  • Identification of the reporting relationship (if any) between the employees and any potential conflicts of interest
  • Any change in work circumstances necessary to enable the relationship to continue without impairing work performance
  • Recognition that romantic relationships don’t always work out
  • Agreement that the romantic relationship (or its dissolution) does not constitute a violation of company harassment policies

The terms of one of these contracts are usually not negotiable. The company provides the document to the employees. If they choose to sign, then they continue employment and, as they desire, their personal relationship. If either employee refuses to sign, then the company takes alternative action. This could include either re-assigning or possibly terminating one or both of the employees.

Do Love Contracts Work?

One could ask this question from many different perspectives. However, the answer would always be about the same: Maybe, in some respects, but there are no guarantees.

1. Do they encourage employees to disclose workplace romances?

Sometimes, but not always. Dating and sex are topics that most employees don’t want to talk about with HR in the first place. The prospect of possibly being asked to sign a love contract probably further diminishes the incentive to report.

Then you add in the fact that some meaningful percentage of extra-workplace relationships between co-workers are extramarital affairs. Hardly anyone will want to disclose those to their employer, much less put it in writing!

2. Do they ensure that relationships don’t cause trouble at work?

Casual dating among co-workers doesn’t have to be a big problem, and probably isn’t in many cases. The same can be true of more established relationships. But, in either situation, there’s always the reasonable possibility that at least one person will end up upset.

Keep in mind too that relationships don’t always affect just two people. Third parties can also become involved. What of the other employee who is attracted to one of the employees in a workplace relationship? People who were formally involved with one of them? Current or former spouses? For the most part, these “outsiders” won’t be part of a love contract, but could still take offense or otherwise become disgruntled about the relationships or how it carries over into the workplace.

3. Do they prevent sexual harassment claims?

Present data on that question would be hard. But love contracts likely have prevented sexual harassment claims here and there. In different instances, either because they helped employees behave appropriately regarding their relationship or simply discouraged one of the employees from making a claim in light of the existing agreement.

One could also guess that love contracts have, at times, prompted sexual harassment (or sex discrimination) claims. If nothing else, raising the legal significance of the relationship by requiring a contract could make some employees more likely to seek formal recourse when the love dies.

Legally, it is unlikely that the existence of a love contract would automatically “defeat” an employee’s sexual harassment claim. Employees can’t prospectively waive these claims as a formal matter. However, the acknowledgment of the consensual relationship could help the employer overcome some allegations (i.e., that the relationship wasn’t consensual).

As suggested above, love contracts are especially unlikely to prevent or disprove harassment or discrimination claims by employees outside of the relationship. If a co-worker claims he was passed over for a promotion that went to one of the love contract signees because that person was in a relationship with a decisionmaker (the other love contract signee), then the love contract would probably be irrelevant as to that claim.

How Does #MeToo Enter the Equation?

From a societal standpoint, it probably shouldn’t. Workplace sexual harassment has always been inappropriate, and it has been illegal for many years.

At the same time, most companies that have asked employees to sign love contracts probably had good intentions. They weren’t prioritizing hiding sexual harassment. They were trying to make sure that nothing unwelcome was occurring in the first place. HR wouldn’t (in all but the worst run organizations) put undue pressure on an employee to sign an agreement saying they were having a consensual sexual relationship if the employee didn’t believe at the time that it was consensual. If the employee instead said they felt subject to harassment, good companies would have promptly investigated the claim and taken appropriate corrective action.

The positive impact of love contracts on employees has been that they were able to continue to pursue their hearts and their careers (potentially) without interruption. Without love contracts, employers might have (lawfully) forced the employees to choose between their relationship or their jobs.

Now, of course, sexual harassment is at the forefront of media and business attention. That’s good in the sense of hopefully reducing the incidence of harassment. But it does risk increased litigation, which imposes costs on employers.

All told, anyone faced with a workplace romantic relationship these days should be on high alert. Again, no one (whose opinion matters) wants sexual harassment to occur. We don’t want employees to be disadvantaged because they didn’t accept romantic or sexual advances or because co-workers did. At the same time, few employees want to go to HR and put this target on their backs. And, frankly, probably fewer and fewer human resources department or managers want to hear about these relationships because of how complex the implications can be. Sure, they’ll try to do the right thing as problems arise, but that’s different than proactively asking people to sign legal documents related to their romantic, probably sexual, activities.

What’s the Alternative to Love Contracts?

Let’s leave open the possibility love contracts might still work well in some situations. Use them thoughtfully, on a case-by-case basis, though consistent with company policies. Get legal advice and don’t assume they’ll solve all your problems.

As an alternative, many companies have anti-fraternization policies. The limits of these policies vary. Some prohibit any dating or romantic relationships between employees. Others only restrict relationships between employees in the same departments or within the same reporting structure.

Unfortunately, these fraternization or dating policies share many of the same side-effects as love contracts. Principal among them is that they encourage employees to hide their relationships at work. On the one hand, this could be good to the extent that it prevents the relationship from directly affecting the workplace. On the other hand, it can create animosity among employees who do find out about relationships.

Again, it’s not fair to universally condemn or endorse anti-fraternization policies. What works in one workplace might not work in another. But there is one policy that is paramount for all organizations: the anti-harassment policy.

All employers should have written anti-harassment policies covering sexual harassment and all other categories protected by applicable laws (which may vary from state to state). Whatever preventative measures might be in place, employers must take all allegations of sexual harassment seriously, investigate promptly, and take appropriate action.

 

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