Category: Human Rights Law

July 19, 2019

NY Employment Discrimination Amendments (Webinar Recap)

On July 16, 2019, I presented a complimentary webinar called “New York Employment Discrimination Amendments”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Expanded Coverage
Relaxed Standards of Proof
Additional Penalties
New Policy/Training Requirements
Prohibition of Confidentiality Provisions
Salary History Ban
and More!

The New York Legislature recently passed sweeping revisions to the New York State Human Rights Law. Once fully enacted by Governor Cuomo, these amendments will significantly expand the coverage of the state’s employment discrimination laws. They will both make it easier for workers to prevail in claims against employers and add new remedies. These changes will collectively increase the cost of claims for employers.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “NY Employment Discrimination Amendments”

The New York Human Rights Law currently applies to employers with 4 or more employees (and all employers with respect to sexual harassment). Under the new amendments, this coverage will expand to all New York employers of any size. It will also extend protection from workplace harassment to non-employees, such as independent contractors and vendors.

Not only will more employers and workers be subject to the laws, but the likelihood of liability under the laws will also increase. Where before employees had to prove “severe or pervasive” conduct to win a harassment claim, now they will just have to demonstrate that the unwelcome conduct related to a protected category and was more than a “petty slight or trivial inconvenience.”

In this webinar, we also discuss changes to the New York sexual harassment policy and training requirements. Plus employers will now be prohibited from asking job candidates about their salary or wage history. And pay equity laws are also expanding in material ways to increase liability against employers.

This webinar will get you up to speed on these developments so that your business can stay ahead of the curve in preventing harassment and discrimination claims.

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June 23, 2019

New York Employment Discrimination Law Now Covers Everyone

Late in the night of June 19, 2019, the New York Legislature radically expanded the state’s employment discrimination laws. The legislation amends nearly every component of the New York State Human Rights Law regarding employment discrimination. Although no additional protected characteristics were added, the changes affect which employers and workers are subject to the law, the standards for proving or disproving a claim, and the penalties available to victims. Frankly, it’s hard to imagine how they could have gone further to promote discrimination claims against employers.

Note: At the time of the initial publication of this article, Governor Cuomo had not signed the new laws into effect. However, he has expressed support for the legislation and his intent to enact it.

No Worker Left Behind

For many years, the State’s employment discrimination laws only applied to employers with at least 4 employees. In 2016, this threshold dropped to 1 employee for sexual harassment claims only. Last year, the State extended the sexual harassment protections to all workers in a workplace, not just employees. This added coverage for independent contractors, vendors, consultants, etc.

With these amendments, the New York Human Rights Law will now apply to all employers of all sizes for all employment discrimination claims. This includes not only sexual harassment, but all forms of harassment based on other protected characteristics (age, race, etc.). It also includes non-harassment claims such as those alleging wrongful termination, discriminatory hiring, and failure to promote.

More “Harassment” Is Illegal

Historically, employees needed to show that workplace harassment was “severe or pervasive” to win a harassment case. This legislation expressly eliminates that requirement.

The Human Rights Law still doesn’t exactly define the term harassment. But it now sort of describes what it is:

First, to be illegal (as always) the harassment must be based on one of the numerous protected characteristics established by the law. In addition to sexual harassment, this includes harassment because of a person’s age, race, creed, national origin, sexual orientation, among others.

Second, “harassment” now becomes illegal “when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories.” That seemingly is what employees must show to prevail on a harassment claim.

Third, the legislation states that it will not be “determinative” that the worker hadn’t previously complained about harassment.

Fourth, the amendments specifically provide that workers complaining of harassment don’t need to point to any other workers for comparison purposes to prove their claims.

Fifth, an employer can only defeat harassment claims under these amendments to New York employment discrimination law if they prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

On the whole, these amendments undeniably and certainly intentionally institute monumental expansion of the State’s anti-harassment protections.

Punitive Damages Now Available

Unlike some similar federal statutes, the New York employment discrimination law previously did not allow victims to recover punitive damages. This is additional money beyond what the discrimination cost the victim. These damages serve to punish and deter employers from engaging in further discrimination.

Significantly, unlike most federal discrimination laws, the New York legislation does not place any cap on the amount of punitive damages that juries can award.

Pay the Lawyers Too

The attorneys of employees who win their cases under New York employment discrimination law will now have their fees paid by the employer.

If an employer wins, disproving the plaintiff’s case, they will only receive their attorneys’ fees if they convince the court that the claim was frivolous. Realistically, such awards are likely to be few and far between.

Barrier to Confidentiality

In case you might want to settle a New York employment discrimination case, you might not get a confidentiality provision. At least, you’ll have to jump through more hoops if you want to.

The biggest hurdle is that you must be able to demonstrate that the “condition of confidentiality is the complainant’s preference.”

The Legislature added this restriction last year for sexual harassment claims only. It now applies to all discrimination claims.

Among other details, the complainant must have 21 days to consider the written terms of any such confidentiality or non-disclosure provision. Then, if the complainant signs off, they still have another 7 days to change their mind.

No More Arbitration?

As the Legislature enacted last year specifically for sexual harassment cases, this year’s amendments prohibit mandatory arbitration provisions with respect to all forms of employment discrimination.

However, there’s still an open question whether federal law (and its broad protection of arbitration) invalidates the New York law on this issue.

And Those Sexual Harassment Policies . . .

Most of the amendments apply to all forms of employment discrimination. But the legislation also adds to the still new sexual harassment policy and training requirements.

Every employer will have to not only train employees annually, but also give all employees a copy of their sexual harassment policy at each annual training. And now employees must receive both the training and the policy in their primary language if the State has prepared a model policy and training program in the language.

Plus More Time to File Sexual Harassment Cases

Despite many measures expanding protections for all protected characteristics, sexual harassment claims will still get special treatment in one area. Workers will now have up to 3 years to file sexual harassment claims with the New York State Division of Human Rights. All other New York employment discrimination claims can only be filed with the state agency for 1 year. Regardless, all New York employment discrimination claims can be filed in court for up to 3 years.

What Should Employers Do?

Probably, move out of New York. Otherwise, prepare to redouble efforts to avoid any hint of harassment. New York employment discrimination litigation will definitely increase as a result of this legislation.

We’ll follow up with more commentary and insight on the potential impact once the Governor acts on the bill. To receive updates on this and other topics of importance to New York employers, sign up for our free email newsletter.

May 25, 2019

Interactive Process for Accommodating New York Employees with Disabilities

When employees request disability accommodations, New York employers must engage them in an “interactive process”. The goal is to identify the limitations resulting from the disability and potential accommodations that could overcome those limitations. Both employees and employers have obligations in the accommodation process.

Employee Request for Accommodation

Employers must engage in an interactive process with employees who request accommodation. The employee request is some indication of the need for adjustments related to the employee’s own medical condition.

Under the federal Americans with Disabilities Act and the New York Human Rights Law, employers are only obligated to accommodate an employee’s medical condition. These laws do not require accommodations of a family member’s medical condition, Unlike the FMLA or the New York Paid Family Leave law requirements, these reasonable accommodation protections only apply to an employee with a disability.

Indirect “Requests”

It is not absolutely necessary in every case that the employee actually verbalize or request accommodation. First, if a family member contacts the employer and provides enough information about the employee’s medical condition and need for some accommodation, then you couldn’t require the employee to personally ask for it him or herself. Likewise, if the need for accommodation is abundantly clear, the employer can’t necessarily wait for the employee to ask. For example, an employee in a wheelchair need not specifically state that he can’t climb up stairs.

Insufficient Requests

On the other hand, there are situations where the employee might ask for a change in the workplace but not make it clear that it’s related to a medical condition. Then, if the employer doesn’t have other independent knowledge of a medical condition, that request wouldn’t necessarily trigger any obligation to engage in an interactive process for accommodation under the disability discrimination laws.

For example, an employee says that they need another screen or they want a larger monitor for their computer at work. That in and of itself is not obviously a disability accommodation request. Unless the employer knows that there is some vision or other related condition, it’s plausible that somebody might just happen to prefer a larger monitor but not actually need one for a medical reason. But if the company already knows that the person is visually impaired when they ask for a larger monitor, then this would qualify as a request for accommodation, and the interactive process should begin.

Engaging in the Interactive Process

“Interactive process” is a phrase that comes out of the federal regulations interpreting the ADA. The EEOC’s regulations specifically refer to it as an “informal” process. This doesn’t mean informal in the sense of a casual conversation in the hallway. Really, it should be relatively formal as far as employee relations matters go. It’s only informal in the sense that the interactive process doesn’t have to have a lot of documentation back and forth; doesn’t directly involve outside agencies; nothing has to be filed; and under the ADA the company is not obligated to put in writing–for example, here are the accommodations we think you should have, then employee has a certain amount of time to object or something like that. So, in that sense, “informal.” But it doesn’t mean that it’s not taken seriously.

In some situations, it’s pretty easy to have the “interactive process”. If an employee says, “I need a larger monitor”. The company says, “How much larger do you need”? The employee might suggest a 60-inch screen, but the company says, “How about we give you 30 inches”? If the employee says, “Okay. Yeah, that’s fine. I should be able to see what I need there,” then it’s done. The monitor is provided, and everyone goes forward. Technically, that’s an interactive process.

Of course, in some cases, the company will need more information from the employee to evaluate possible accommodations. This might include something from their doctors as to why they need an accommodation what the accommodation might need to look like.

Obtaining Medical Information

Unless the medical condition and need for accommodation are obvious, employers can require employees to provide information about their disability. There are relatively few disputed cases where it’s so obvious that you couldn’t ask for any medical documentation. If it is that obvious, you’re probably either accommodating or able to make the analysis without medical information. The important question is more about the scope of the medical information when you choose to ask for it. Employers should not go beyond the possible need for accommodation. So you can’t expect a complete medical history on an employee just because they say they have carpal tunnel and need some accommodation for typing.

HIPAA Compliance

Employers can ask an employee to sign a HIPAA authorization so that the company can get the information directly from the medical providers. Or you can ask the employee to get the information from the doctor and then hand it over to human resources. In that scenario, the doctor doesn’t technically need a release, and the employer doesn’t need one to get the medical records.

Employers must maintain the information confidentially once they get it. But within the organization you can share the information on a need-to-know basis to conduct the interactive process and make accommodations.

Using Job Descriptions

It’s usually a good idea to make sure the doctor has a job description that accurately explains what the employee is expected to do. The doctor should reference the job description in giving feedback on the need for accommodations.

Second-Guessing the Employee’s Doctor

Employers don’t have to accept the doctor’s opinion, restrictions, or suggestions in all cases. You would want to have a good reason for disagreeing with what the doctor says. But if you believe and have some basis for the conclusion that the doctor’s recommendation is ridiculous, then you can act on that. You might even want to get a second opinion in some cases. That’s possible as part of the interactive process as long as you’re being reasonable and not throwing unrealistic obstacles in the way of an employee getting an accommodation.

Interactive Process Is a Two-Way Street

Always remember that the interactive is something that both the employee and the employer must participate in. So, if the employer tries to get information from the employee and the employee won’t provide it, then that will ultimately reduce the company’s obligation to provide the accommodation in some ways.

Likewise, however, if the employee asked for an accommodation, and the employer just flat-out refused to consider it or engage in any sort of interactive process, that is going to hurt the company in an employment discrimination case alleging failure to accommodate. Even if the company probably wouldn’t have been able to accommodate this employee, it’s going to be a big evidentiary problem that they didn’t even try by interacting with the employee.

Choosing an Effective Accommodation

As part of the interactive process, the employer must evaluate the circumstances, what accommodations are available, and whether they create an undue hardship. Then you wrap the process up by advising the employee of the decision either to allow the requested accommodation, pursue an alternative, accommodation, or deny the request altogether. Other outcomes include a finding that the employee doesn’t actually need an accommodation to perform the essential functions of the job. Or it might be that the employee no longer needs to perform a particular job function because it’s not essential.

There are cases where an employee receives an accommodation, but it doesn’t seem to work. Then the interactive process could recommence. Plus, any individual employee could have multiple disabilities that need to be accommodated in different ways. Then interactive processes could be going on simultaneously along multiple paths for different medical conditions.

The ultimate goals of the interactive are to understand the employee’s medical limitations, determine the possible accommodations to evaluate effectiveness and feasibility of accommodations, choose among available alternatives, and ideally reach agreement with the employee on the accommodations.

Employer’s Choice Among Alternatives

Employees are not legally entitled to the exact accommodation that they request. If there are alternative accommodations that would also enable the employee to perform the essential functions of their job, the company has the right to determine which combinations would be effective. The employer can choose any accommodation–whether because it would be cheaper or otherwise less burdensome on the company–as long as it’s still effective. That is, as long as the employee can perform the job and does not suffer medical consequences as a result.

You would ideally like the employee to agree and acknowledge that they accept the accommodation that is being afforded. But they don’t have to. And the employer can still go forward and say this is what we’re going to do. Most employers won’t want to get to the pure “take-it-or-leave-it” point. It is better to try to work it out and get the employee’s consent. But, ultimately, it’s the employer’s choice.

Additional New York City Requirements

Cooperative Dialogue

The New York City Human Rights Law was amended effective October 2018 specifically regarding the reasonable accommodation issue. The amendment added the concept of a “cooperative dialogue” for employees working in New York City.

Within NYC, the employer and employee now must engage in good faith in a written or oral dialogue concerning:

the employee’s accommodation needs;
potential accommodations that may address their accommodation needs, including alternatives to a requested accommodation; and
the difficulties that such potential accommodations may pose for the employer.

This is essentially the interactive process, but probably now constitutes a heightened requirement that the employer actually address each of these factors that the ADA and New York State Human Rights Law don’t specifically identify.

Written Determination

Perhaps even more tangible, the NYC Human Rights Law now requires that employers provide employees who have requested accommodations with written final determinations identifying any accommodation granted or denied. (To be clear, this only applies to employees who work in New York City.)

This all basically means that if you’re an employer with an employee in New York City who asks for a disability accommodation: First, you must entertain a cooperative dialogue with them. Then you must provide a summary report that says, in essence, these are the accommodations that we considered and these are the ones that we are providing. Neither the ADA nor the New York State Human Rights Law requires a written determination. But New York City now does. Failing to provide the written determination violates the NYC Human Rights Law as a form of employment discrimination.

Is This All We Need To Know About Accommodating Disabilities?

Probably not. Unfortunately, employee medical issues can be complex challenges for employers. The ADA and state and local disability discrimination laws are not even the only legal parameters at play in many of these situations. But knowing when you need to engage in the interactive process and roughly how that works is a major step in the right direction.

If you want to learn more, watch our related webinar: Accommodating NY Employees with Disabilities.

And here are some additional articles discussing employee disability issues:

What Is a Disability Under the ADA?

Reasonable Accommodations of Disability in Employment

Is Time Off a Reasonable Accommodation?

Mental Health Leave Under the ADA

The U.S. Equal Employment Opportunity Commission also offers relevant guidance here.