Many employers utilize artificial intelligence or algorithms to select new employees, monitor performance, and determine pay or promotions. There are scored tests and resume analysis that are both common place in the big business world. However, the EEOC and DOJ just shot a cannon across the bow of big business' boat by stating that "[t]hese tools may result in unlawful discrimination against people with disabilities in violation of the Americans with Disability Act (ADA)."

To determine if discrimination has occurred, consider the following questions:

1. Was there an accommodations policy available and made known to employees / applicants?
1. If not, there likely was discrimination.
2. Does the AI / algorithm ask about the precise nature of the disability / medical condition? 
1. If so, there likely was discrimination. 

Does your company blindly outsource HR to your payroll company? Aren't you concerned whether they are getting it right? You do know that you remain liable even if you outsource?   

In acknowledging that many NYS employers blindly outsource their payroll services, the Governor signed, A7786 into law on May 6, 2022, and ordered the Superintendent of Financial Services to review the industry. 

Specifically, the law requires a review of:

1. Employee protections in the industry;
2. Small business employer protections in the industry;
3. Incidence of fraud or misappropriation of payroll funds; 
4. Number of NYS small businesses that use payroll services;
5. Number and size of NYS payroll service providers;
6. Specific causal or facilitative facts regarding instances of fraud or misappropriation by providers;
7. Feasibility & advisability of requiring providers to obtain insurance, post bonds, or utilize other risk management tools to address potential situations in which payroll monies owed to employees on behalf of businesses are stolen, misappropriated, or otherwise rendered unavailable after being transmitted from an employer to a provider; &
8. Feasibility & advisability of the DFS having regulatory oversight over third-party payroll service providers.

On March 29, 2022, we blogged about the new NYC Salary Transparency in Job Advertisements Law, which has just been updated and amended on April 28, 2022. 

Now, the effective date is moved to November 1, 2022 and most importantly, there is now an ability for an employer to cure their violation, without penalty, if accomplished within 30 days of service of a copy of the applicable complaint pursuant to section 8-109.

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

When it comes to education, you and your child have a right to be free from harassment, bullying and other forms of wrongful discrimination that is perpetrated by teachers, the administration, or even other students (your peers). This applies to public schools, non-religious private schools, colleges and universities. Simply, you and your child can't be denied a right to learn because of who you are. 

Anti-discrimination laws in education apply regardless of whether the discrimination is explicit or implicit. While we've all heard about equal access to sports between the sexes / genders, or even teachers having sex with their students, discrimination lawsuits more commonly concern bullying of minorities, the failure to give testing accommodations to disabled students, and, even, the failure to extend days off to religious observers. Simply, it is the administration's duty to make education equally accessible to all and this failure can result in a lawsuit.  

On the federal level, Title IX of the Educational Amendments protects against sex discrimination while Title VI of the Civil Rights Act addresses race, color, and national origin discrimination, and finally Title II of the Americans with Disabilities Act (ADA) protects against disability discrimination. However, these federal laws on education discrimination were just limited by the Supreme Court and can, mostly, no longer result in victims receiving emotional distress or punitive damages.

Nonetheless, states, like New York, provide victims with the right to recover for their emotional distress and punitive damages. Moreover, New York adds protections by covering victims of discrimination with respect to additional categories, such as race, color, religion, disability, national origin, sexual orientation, military status, sex, age and marital status. New York even makes clear that it's own public school districts can be held accountable for discrimination based on an amendment to its laws from July 25, 2019, A3425.

If you or your child were a victim of education discrimination, it is important to act quickly and file your claim after hiring a lawyer. In New York State, claims against public school districts must be filed within 3 months after the discriminatory event. While the State's anti-discrimination laws otherwise provide up to 3 years for lawsuits against non-public schools (i.e., private schools / colleges / universities), it's nonetheless important to act quickly to preserve all the discriminatory evidence (i.e., audio / video), which is done by immediately sending what is known as a spoliation notice.

To be clear, discrimination victims, in New York, can recover compensatory damages (being made whole with emotional distress damages), punitive damages (punishment damages), and your attorneys' fees. The perpetrator can lose their license (if licensed as educators or otherwise), 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. 

Don't be afraid to speak-up. If you are advancing an anti-discrimination right for yourself or your child, you are protected from retaliation. Even if it is ultimately found that you or your child was not discriminated against, you both can nonetheless be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination rights. Again, this is not just true if you are advancing your own rights, it also applies if you are raising your child's rights, or another student's rights, because anti-retaliation laws protect anyone who aids and/or encourages someone else in exercising their rights to be free from discrimination. 

Attorney Advertising

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. 

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. 

National interview with NEWSY and Attorney Andrew Lieb about the increase of labor unions across america.