Tag: harassment

July 27, 2023

EEOC Issues Guidance on Visual Disabilities in the Workplace

As an employer, it’s crucial to understand the legal obligations and best practices for accommodating employees with disabilities. On July 26, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released a new technical assistance document specifically addressing visual disabilities in the workplace. While the EEOC focuses on the Americans with Disabilities Act (ADA), state or local laws may also be relevant to this topic.

The ADA

The ADA is a federal law that prohibits discrimination against qualified individuals with disabilities. Under the ADA, individuals with disabilities include those who have a physical or mental impairment that substantially limits one or more major life activities, have a record or history of such an impairment, or are subject to an adverse action because of an actual or perceived physical or mental impairment.

The ADA applies to private employers with 15 or more employees and all state and local government employers.

Visual Disabilities

The EEOC guidance uses the term “visual disabilities” to refer to disabilities related to an individual’s vision. It uses the term “vision impairments” to encompass various vision-related conditions such as blindness, low vision, limited visual fields, photosensitivity, color vision deficiencies, or night blindness. A vision impairment constitutes a visual disability if it meets one of the three definitions of disability: actual, record of, or regarded as.

Not everyone who wears glasses or contact lenses qualifies as an individual with a disability under the ADA. As the guidance explains, “An individual who uses ordinary eyeglasses or contact lenses that are intended to fully correct their vision typically will not be covered under the ADA as an individual with an ‘actual’ or a ‘record of’ a visual disability.”

Prevalence of Visual Disabilities

According to the U.S. Centers for Disease Control and Prevention (CDC), approximately 18.4% of all U.S. adults are blind or have difficulty seeing even when wearing corrective lenses. Vision impairments can start or occur throughout one’s lifetime and can be caused by various factors, including eye diseases, eye injuries, burns, or surgical complications.

Employer Obligations and Reasonable Accommodations

Many individuals with vision impairments can successfully and safely perform their jobs with or without reasonable accommodation. Under the ADA, employers should not deny employment opportunities to these individuals based on stereotypes or incorrect assumptions. The document provides guidance on when an employer may ask an applicant or employee questions about a vision impairment, what types of reasonable accommodations may be needed, and how to handle safety concerns.

Ultimately, if an employee’s visual disability cannot be accommodated in such a way as to prevent unreasonable safety risks, then an employer is not necessarily required to continue their employment.

Protecting Employees from Harassment

The document also addresses the importance of ensuring that no employee is harassed because of a visual disability. Employers have a responsibility to create a safe and inclusive work environment for all employees, including those with visual disabilities.

Confidentiality

The ADA requires employers to keep medical information about applicants and employees confidential. However, some internal disclosure regarding vision impairments is permissible for legitimate business purposes.

Retaliation

Like most employment discrimination laws, the ADA prohibits retaliation against individuals seeking its protections. Accordingly, employers must not treat employees negatively for any activities related to their rights under the law.

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.

Don’t Miss My Future Webinars!

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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.