New York State and City anti-discrimination laws go significantly further than federal law to protect employees from discrimination by employers. New York protects more categories of people and makes proving some forms of NY state employment discrimination easier than current federal law.
Here’s the rundown of types of illegal, enforceable discrimination against employees New York employers are prohibited to discriminate based on:
- National origin
- Religion, sex (including pregnancy, childbirth, and related medical conditions)
- Disability (physical or mental)
- Genetic characteristics
- Marital status
- Familial status (being pregnant, caring for a child under 18, or seeking to adopt a child under 18)
- Sexual orientation (includes perceived sexual orientation)
- Gender identity
- Lawful use of any product or lawful recreational activities when not at work (for example, marijuana when used medicinally)
- Military status or service
- Observance of Sabbath (but observance must not be unduly burdensome to the employer)
- Political activities
- Use of service dog
- Prior arrests or criminal accusation
- Prior convictions (unless certain requirements have been met)
- Domestic violence victim status
- In New York City, your credit history
Each of these categories of discrimination has a common denominator, that is discriminatory intent. Any act or acts which look like discrimination may well be discrimination, but the Plaintiff in an employment context has to show that the boss meant to do some sort of harm because the employee falls into one or more of the above categories. If, for example, you are of a certain religion and you are fired, the question becomes whether your religion played a role in the decision to fire you.
Non-Discrimination and Other Allowable Reasons You Can Be Fired in NY
An employer can be mean, rude, and harsh. An employer can fire you for any reason or no reason as long as it’s not based on one of the categories above prohibited by law. Proving workplace discrimination can be tricky.
New York law is very clear on this.
I have handled cases for both the employer and employee and it is a rare case where discrimination is clear-cut. Typically, there is no “smoking gun” on which to rely to prove that there was or wasn’t discriminatory intent behind an employer’s decision to fire, or take other adverse employment action against an employee. For example, it would be odd for an employer to send an email to an employee saying you’re being fired because you’re too old or I don’t want any pregnant women in the office, or because you turned down my sexual advances. That being said, cases are often brought and won even without this type of evidence.
Often, evidence of job discrimination is revealed by looking at an employer’s patterns. Are the employees at the company mostly of the same race or national origin? Are these employees being replaced with workers of different races or national origins? Does the employer terminate or discipline a disproportionate number of persons who are of the same race or religion? These patterns can show what is known as “disparate treatment,” meaning unequal treatment that can be linked sufficiently to an employee’s membership in one of the protected classes listed above.
The hostile work environment is slightly different. If you are subjected to unwanted language or acts that relate to your membership in one of the protected classes, then it may be considered a hostile work environment. Typically, but not always, the hostile work environment takes the form of sexual harassment. For example a boss who makes suggestive comments about an employee or exposes the employee to sexually explicit language or writings would be acts of sexual harassment. If this type of activity persists, it can be considered sexual harassment. If the conduct is infrequent or just a one-off it can be seen as a “stray remark” Just as a hostile environment can be based on sex, it can be based on any other category.
Setting Employee Guidelines are important in order to to protect both the employee and the employer
Employers would be wise to post clear instructions on how to report sexual harassment confidentially. If an employee fails to follow the instructions, the employer may have a defense in some instances. Under federal law, the defense is called the Faragher-Ellerth defense, based on two US Supreme Court cases that basically say if you don’t follow the employer’s reporting guidelines, that may be a complete defense to a sexual harassment lawsuit. This is not true under New York State or City law, where the Faragher-Ellerth defense has been largely eliminated by the legislature.
Finally, the question is always raised as to how much your case is worth. That depends on many factors, including whether you lost pay or benefits as a result of discrimination, and how severe the treatment was. On a scale of one to ten, did the employer treat you about as bad as anyone can be treated? Or did he/she make one or two remarks that you [rightly] found offensive? Such cases are common but usually do not result in large awards. This is a question for a jury to decide and one for attorneys and clients to discuss before deciding whether to go to trial or settle.