LIEB BLOG

Legal Media Analysts

Showing posts with label title vii. Show all posts
Showing posts with label title vii. Show all posts

Tuesday, May 03, 2022

Employment Discrimination & Your Rights - What Victims Should Know

Discrimination in employment is illegal throughout the United States and in certain states, like New York, there are even greater protections, rights, and damages available to victims. 


Whether you were discriminated against in your workplace by your boss (owner / supervisor / manager), a co-worker, a vendor, a client / customer / patron, a Professional Employment Organization (PEO) / temp agency, or a franchisor, you are entitled to compensation. This is true wherever the discrimination occurred (at the office / zoom / conference / meeting/ holiday party) so long as you were fulfilling your work responsibilities when it happened. This is often even true whether you are an employee, domestic worker or independent contractor. This is even true if the discrimination was unintentional or caused by the perpetrator's implicit biases. 


Anti-discrimination rights and protections entitle victims to sue for compensation if discrimination occurred because of your protected status / protected class, which statuses / classes vary throughout the United States, but may include your race, ethnic background, visible traits (hair texture, hairstyle, donning of religious garments or items), color, national origin, citizenship status, alienage status, immigration status, lawful source of income (subsidy recipient status), occupation, religion, creed, marital status, partnership status, sex, gender, sexual orientation, gender identity or expression (transgender status), domestic violence victim status, stalking victim status, sex offense victim status, familial status, pregnancy, presence of children, handicap (disability), age, military status, uniformed service, veteran status, first responder status, arrest record, and sealed conviction record.


The law prevents hiring managers from changing available compensation, wages, rates of pay, hours or other terms and conditions, or availability of, employment based on your protected class status. Job listings can't be discriminatory on their face and in places like NYC, wage transparency is required when jobs are advertised. Plus, wages must be substantially equal between the genders.


Employment discrimination laws apply beyond hiring, where firing / discharge / layoffs cannot be motivated by discrimination either. Speaking of termination, be warned that severance agreements generally waive your anti-discrimination rights so don't sign them if you think that you have a claim until you speak to your lawyer.   


Most importantly, workplace discrimination laws protect workers while they are on the job where seniority or other privileges of employment cannot be influenced by discriminatory animus. Stated otherwise, sex can't be traded for job benefits and no one should experience a hostile environment where they are treated inferiorly to someone else because of their protected class status. The old boys club is over and we now exist in a meritocracy.  


To get this message across, many places, like NYS, require employers to provide anti-discrimination trainings, policies, and complaint forms to employees/ independent contractors.  


Beyond discrimination laws preventing employers from treating victims inferiorly, employees who are handicapped / disabled are also entitled to receive reasonable accommodations (change to policies / procedures / rules) and reasonable modification (change to structure) so that you can enjoy equal employment opportunities. Plus, if you are a disabled employee, your actual diagnosis need not be fully revealed and can remain confidential when you seek such an accommodation / modification. The most common handicap / disability cases that we see involve job task changes, reserved parking, modified work areas, and other failure-to-accommodate cases. When it comes to handicapped / disabled people, it's all about providing access.  


The same is true for religious accommodations. Simply put, unless its an essential job function or causes your employer an undue hardship, your employment opportunities should not be denied for religious observance. The most common religious accommodation that we see are flexible schedules, because your holidays or high holy days may not be the same as your employers, and dress code flexibility so you can wear the appropriate attire to respect your belief system. 


Don't be afraid to speak-up. If you are advancing an anti-discrimination right, you are protected from retaliation. Even if it is ultimately found that you were not discriminated against, you can nonetheless be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination rights. This is not just true if you are advancing your own rights, it also applies if you are an ally who is aiding and/or encouraging someone else to exercise their rights to be free from discrimination. 


Title VII, the Americans with Disabilities Act, and other state / local anti-discrimination laws make work available to everyone without stigma, loss of dignity, or other harms. If you are a victim, you can recover compensatory damages (being made whole with emotional distress damages, back-pay, front-pay and/or reinstatement), punitive damages (punishment damages), and your attorneys' fees. The perpetrator can lose their license (if licensed), be required to take trainings, and be ordered to stop their offensive behavior. There are fines and more. Discrimination is wrong and must be stopped. 



Attorney Advertising. 

Monday, May 02, 2022

US Supreme Court Eliminates Availability of Emotional Distress Damages in Certain Discrimination Cases - Congress?

Discrimination victims may only recover compensatory damages and injunctive relief, not punitive damages or emotional distress damages, when they bring cases under the Rehabilitation Act of 1973, the Patient Protection and Affordable Care Act, Title VI of the Civil Rights Act, and Title IX of the Educational Amendments, unless Congress acts NOW! 


As a desk reference:

  1. The Rehabilitation Act of 1973 bars funding recipients from discriminating because of disability;
  2. Title VI of the Civil Rights Act forbids race, color, and national origin discrimination in federally funded programs or activities; 
  3. Title IX of the Educational Amendments prohibits sex-based discrimination education program or activity receiving federal financial assistance; and
  4. The Patient Protection and Affordable Care Act outlaws discrimination on any of the proceeding grounds, in addition to age, by healthcare entities receiving federal funds.


Until April 28, 2022, it remained an open question whether discrimination victims could recover emotional distress damages under those 4 federal statutes. Without emotional distress damages, a victim's recovery is limited because discrimination under these statutes do not concern fixed damages, like in employment where there is back-pay and forward-pay. Instead, most victims only experience humiliation, frustration, and loss of dignity when they are discriminated in healthcare, education, or by general recipients of federal funding. Nonetheless, the US Supreme Court ruled that emotional distress damages are not recoverable in discrimination cases brought under these 4 statutes when it issued its decision in Cummings v. Premier Rehab Keller


The case involved an accommodation request by a deaf and legally blind physical therapy recipient who requested an American Sign Language Interpreter at her sessions. You know, so that she could communicate and all. But, the provider said no, which was clearly an act of discrimination and not at issue before the Court. Instead, the Court was faced with determining whether the discrimination victim could recover emotional distress damages under the applicable statutes. 


Stated otherwise, the Court was charged with determining what recovery was available to a victim of discrimination where the Court had previously ruled that punitive damages were unavailable under the 4 statutes. So, what was left? Shouldn't emotional distress damages compensate a victim for their terrible and dehumanizing experience? 


No, said the Supreme Court because these 4 statutes were enacted under Congress' Spending Clause authority and such statutes are analyzed as contracts where defendants must have received clear notice of exposure to emotional distress damages for them to be recoverable. 


Yet, this clearly devastating decision to discrimination victims also has a clear solution. Congress needs to amend these 4 statutes today and provide clear notice that emotional distress damages are recoverable in all discrimination cases. Congress needs to act now. 



 

Tuesday, March 29, 2022

NYC Salary Transparency in Job Advertisements FAQ Published

The NYC Commission on Human Rights published its FAQ that needs to be reviewed and adhered to by any employer advertising positions that may be performed in NYC starting on May 15, 2022.  


If you are an employer who is seeking an employee whose job may be performed, in whole or in part, in NYC, you will need to comply with Local Law 32 of 2022, which requires salary transparency. 


To comply, employers' advertisements "must state the minimum and maximum salary they in good faith believe at the time of the posting." 


Be sure to do this correctly because the FAQ reminds employers that "[e]mployers and employment agencies who are found to have violated the NYCHRL may have to pay monetary damages to affected employees and civil penalties of up to $250,000."




Wednesday, November 24, 2021

Artificial Intelligence Decides if You're Hired! Is It Discriminatory?

Wonder why you were denied the last job or promotion you applied for? 


Wonder no more, because there is a good chance that it wasn't a human's decision. In fact, Artificial Intelligence "AI" has become the judge on who is hired or who is promoted for most employers and employment agencies. However, AI isn't perfect and may be infringing on your anti-discrimination rights if it's not properly programmed and regularly audited. 


That is why AI or Automated Employment Decision Tool "AEDT" has been the target of much scrutiny. Experts point out that AEDT are prone to bias in their hiring and promotion process. Biases include racial, sexual, and ethnic discrimination, amongst so many other protected categories. This problem has become so worrisome that New York City is putting in place an amendment to the New York City Administrative Code to curb the use of AI in hiring. 


Such amendment was approved by the New York City Counsel on November 10th, 2021. It can be read here.  The purpose of the Bill is to require employers and employment agencies to assess employees and candidates without the use of machine learned biases. The effects of such machine learned biases are discriminatory in nature.

Now, the Bill is on the Mayor's desk and goes into effect on January 1, 2023.


The Bill is limited to regulating AI decisions that screen candidates for employment or screen employees for promotion. This limitation is not without exception. An AEDT is allowed if the tool has undergone an independent bias audit no more than one year prior to it use. The audit's summary then must become publicly available on the employers' or employment agencies' website.


But how will you know if the employer or employment agency is using AEDT on you? The law enforces notification guidelines that will inform employees and candidates of its use.


If caught in violation of the law, employers and employment agencies face fines of up to $500 for the 1st violation, and fines between $500 to $1,500 for each subsequent violation. Plus, they may be exposed to a discrimination lawsuit with compensatory damages, punitive damages, penalties and attorneys' fees being awarded to the victim. If you believe that you were discriminated against by an AI / AEDT, your lawyer will be able to determine it's involvement during the lawsuit and leverage the company's non-compliance with the NYC Bill to win your case. 





Tuesday, June 16, 2020

Supreme Court Rules that Homosexual and Transgender Employees are Protected from Discrimination Under Title VII

On June 15, 2020, the United States Supreme Court issued a decision in three companion cases (Bostock v. Clayton County; Altitude Express, Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC) holding that Title VII of the Civil Rights Act of 1964 protects homosexual and transgender employees from discrimination/harassment in the workplace.

In all three (3) cases, the employer terminated the employee's employment after it was revealed that the employee was homosexual or transgender. Each employee brought suit under Title VII claiming that they were fired because of their "sex" (Title VII prohibits discrimination based on race, color, religion, sex and national origin). The Supreme Court held that "sex", pursuant to Title VII, includes sexual orientation and transgender as protected classes because, as the Court reasoned, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

The Court provided the following example to illustrate its position: An employer has two employees, a female and a male, both of whom are attracted to men. If the employer fires the  male employee for no reason other than the fact he is attracted to men, the employer discriminates against him because the employer is tolerating the same trait or behavior from the female employee. The employer, the Supreme Court held, has thus terminated the employee "because of sex" in violation of Title VII.

This decision is particularly noteworthy because Justice Gorsuch and Chief Justice Roberts, typically known as  "conservative" justices, were in the majority (Justice Gorsuch authored the Decision). This signifies the courts continued emphasis on interpreting laws to protect employees from discrimination in the workplace. Employers should, thus, take even more proactive steps (including but not limited to policies and training) to mitigate the risks of discrimination lawsuits.