Supreme Court Holds That Title VII Protects Homosexual And Transgender Employees

The U.S. Supreme Court ruled Monday, June 15, 2020, that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 protects homosexual and transgender workers. In a 6 to 3 decision with Justice Neil M. Gorsuch writing for the majority, the Court interpreted the Civil Rights Act of 1964’s prohibition against discrimination based on sex to include discrimination based on sexual orientation and gender identity.

The Supreme Court’s ruling came through a set of three cases that were consolidated for oral argument. In Harris Funeral Homes v. EEOC, an employee was fired shortly after informing her employer of her intent to transition. The Sixth Circuit ruled in her favor. In Altitude Express, Inc. v. Zarda, a skydiving instructor was fired after telling a patron that he was gay. The Second Circuit ruled against him. In Bostock v. Clayton County, GA, a gay employee was fired after a colleague made a disparaging remark about the employee’s sexual orientation and participation in a gay softball league. The Eleventh Circuit ruled against the employee.

All three cases turned on the same issue: whether the phrase “sex,” as used in Title VII, includes an individual’s sexual orientation or gender identity. The employers argued that “sex” literally refers to status as male or female, as determined by reproductive biology. The employees alleged that the definition of “sex” is broader and encompasses sexual orientation and gender identity.

Judge Gorsuch opined that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Court summarized its opinion with the following example:
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”

The full text of the decision is available here.

NYSHRL Guidance on COVID-19

The New York State Division of Human Rights recently issued guidance related to COVID-19 under the New York State Human Rights Law (“NYSHRL”). The guidance makes clear that individuals may file a complaint with the Division regarding discrimination because of a “perceived connection between [the person’s] race, national origin, or disability and the novel Coronavirus.” It also makes clear that the NYSHRL prohibits discrimination against individuals who are assumed to have been exposed to COVID-19 based on their protected characteristics, including race, national origin, and disability. The guidance provides that these protections cover employment, housing, education, and places of public accommodation.

The guidance provides the following examples of prohibited conduct:

  • Public places such as hotels, restaurants, transportation services, and retail stores cannot deny you entry or access to goods or services based on a perception that your national origin, race, or disability indicates possible exposure to the coronavirus.
  • Your employer cannot fire you, send you home, or tell you not to come to work because they think you may have been exposed to the coronavirus based solely on your race, national origin, or disability.
    It is an unlawful discriminatory practice to terminate an employee or prevent them from working based on speculation that the employee’s race, national origin, or disability indicates possible exposure to the coronavirus.
  • If your employer terminates you or sends you home based on what is later found to be a discriminatory policy, your employer could be responsible for your missed wages.
  • If you are wearing a face mask as a precaution, you are still protected against discrimination.
    The HRL prohibits discrimination based on a perceived connection between race, national origin, or disability and possible exposure to coronavirus. Wearing a face mask does not change this.
  • If you have been harassed or threatened because someone thinks you have the coronavirus, call 911 and contact law enforcement to report the incident immediately.
    Threats and harassment based on race national origin may be considered hate crimes. You may bring this to the attention of the New York State Hate Crimes Task Force by calling 1-888-392-3644

Finally, the guidance instructs individuals how to report harassment and/or discrimination.

New York State’s Sick Leave Law

While New York City has had in place a sick leave law for years now, New York State is now following suit by enacting its own laws as it pertains to sick time from employment.  See New York Labor Law §196-b.  These are permanent sick time measures that will require New York State employers to provide various amounts of sick time to employees starting on January 1, 2021.

Amount of Sick Time

Below is a summary of the amount of sick time that New York State employers must provide during any consecutive twelve (12) month period (e.g., fiscal or calendar year):

  • Employers with 4 or fewer employees AND a net income of less than $1,000,000 in the previous tax year must provide up to 40 hours (5 days) of unpaid sick leave each year;

 

  • Employers with 4 or fewer employees AND a net income of more than $1,000,000 in the previous tax year must provide up to 40 hours (5 days) of paid sick leave each year;

 

  • Employers with 5 to 99 employees must provide up to 40 hours (5 days) of paid sick leave each year;

 

  • Employers with 100 or more employees must provide up to 56 hours (5 days) of paid sick leave each year;

Commencing on September 30, 2020, employees will start accruing 1 hour of sick time for every 30 hours worked, up to the maximum days set forth in the above summary.  This is a baseline for employers to follow, but they may enact policies that provide for more leave time or a faster accrual rate than the law requires. Employers may set reasonable minimum increment amounts for the use of sick leave, but such increments shall not exceed 4 hours.

Under the new law, employers must allow employees to carry over accrued but unused sick time into the next year.  However, the maximum hours of sick leave time do not need to change for the following year (so that it is still capped at 40 or 56 for the employee).

Importantly, unless otherwise stated in a policy, employers are not required to pay out unused sick time upon separation from the company.

Permitted Sick Leave Uses

The law allows for employees to use their accrued sick time for themselves or a “family member” (defined as a child, spouse, domestic partner, parent sibling, grandchild, grandparent, or child/parent of a spouse/domestic partner) for the following purposes:

  • for a mental or physical illness, injury, or health condition of the employee or the
    employee’s family member, regardless of whether the illness, injury or health condition has been diagnosed or requires medical care at the time the employee requests leave;

 

  • for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or the need for medical diagnosis of, or preventive care for, the employee or the employee’s family member; or

 

  • for an absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking: (a) to obtain services from a domestic violence shelter, rape crisis center, or other services program; (b) to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members; (c) to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding; (d) to file a complaint or domestic incident report with law enforcement; (e) to meet with a district attorney’s office; (f) to enroll children in a new school; or (g) to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

 

Notably, the law specifies that an “employer may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of such employee or such employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave pursuant to this section.

Documentation Requirements

“Upon the oral or written request of an employee, an employer shall provide a summary of the amounts of sick leave accrued and used by such employee in the current calendar year and/or any previous calendar year.  The employer shall provide such information to the employee within three business days of such request.”  Accordingly, employers are required to track accrual and use of the sick time of its employees, which records must be maintained with other required payroll records for six years.

Violations of the Law

The law includes anti-retaliation and job security provisions.  Therefore, employers are prohibited from disciplining an employee in any way based upon the exercise of sick time leave rights or failing to restore the employee to their previous position (with the same pay and other conditions of employment) after taking leave.

Employer’s Existing Policies

Employers in New York State who meet or exceed the leave requirements, accrual rates and carryover rules that allow employees to take sick time for the reasons set forth above will not have to modify their policies.  Notably, however, there are some differences between the State and City laws, which should be reviewed to ensure compliance with both laws.

Sexual Harassment – Independent Contractors Now to Receive Anti-Harassment Training

Recently, the New York City Commission on Human Rights amended its guidance to require employers in New York City to provide sexual harassment prevention training to its independent contractors and freelancers.

Initially, the guidance under the Stop Sexual Harassment Act contained Frequently Asked Questions (“FAQs”) that required NYC employers with fifteen or more employees to train their independent contractors, but that guidance was later reversed to not require such training.

However, the guidance has since been changed again, likely in response to the amendments to the New York City Human Rights Law that went into effect on January 11, 2020, which expanded the law to protect independent contractors.

The FAQ is now as follows:

Are employers required to have their independent contractors complete annual sexual harassment prevention training?

Yes. Similar to employees and interns, if an independent contractor works for an employer of 15 or more people and works (a) more than 80 hours in a calendar year AND (b) for at least 90 days (does not need to be consecutive), then the independent contractor must be trained. If an independent contractor worked less than 90 days, or less than 80 hours in a calendar year, they do not need to be trained.

Notably, if an independent contractor or freelancer obtained the annual training from another company where they worked over the course of the year, then such training will be deemed sufficient. To ensure compliance, it is recommended that the employer obtain proof from the independent contractor that they complied with the training from another source.

The Law Offices of Yale Pollack, P.C., located on Long Island in Syosset (Nassau County), New York, can assist in reviewing policies, agreement and trainings to ensure compliance with the laws.

Reminder: New York State Wage Increases As Of December 31, 2019

As the end of the year is approaching, it is important to remind New York State employers and employees of the increased minimum wages that affect both hourly and salaried employees.

For hourly, non-exempt workers, please see the below chart for basic hourly minimum wage increases that go into effect as of December 31, 2019:

New York CityEmployees in Nassau, Suffolk and Westchester CountiesWorkers in the Remainder of New York State (“Upstate”)
$15.00$13.00 (up from $12.00)$11.80 (up from $11.10)

To the extent you or your workforce are paying basic minimum wage, it is important to make sure that the increased wages are reflected as of December 31, 2019.

For employers and employees in the Hospitality Industry, such as restaurants, the “tip credit” rate is also being increased as of December 31, 2019, as follows:

New York CityEmployees in Nassau, Suffolk and Westchester CountiesWorkers in the Remainder of New York State (“Upstate”)
$10.00 Tip Credit: $5.00 $8.65 Tip Credit: $4.35 $7.85 Tip Credit: $3.95

The “tip credit” rules can be difficult to follow, so it is important to track this information to ensure that tipped employees are receiving at least basic minimum wage, inclusive of tips, when calculating wages.

“Fast food” workers minimum wage, which is as follows:

New York City New York State Outside New York City
$15.00 $12.75

More information about the Hospitality Industry – including fast foot establishments, can be found here.

Finally, there are increases in the minimum salary threshold that must be met for exempt employees. As of December 31, 2019, the following minimum salaries must be paid for exempt administrative and executive employees:

New York CityEmployees in Nassau, Suffolk and Westchester CountiesWorkers in the Remainder of New York State (“Upstate”)
$1,125.00 per week ($58,500 annually) $975.00 per week ($50,700 annually) $885.00 per week ($46,020 annually)

With the upcoming changes, it is important to update policies and pay practices to stay in compliance. For questions as an employer or employee in New York, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com

 

U.S. Department of Labor Announces Final Overtime Rule

Today, more than 1.3 million Americans became eligible for overtime under the Federal Labor Standards Act (“FLSA”), with the increase of the salary threshold going from $455 per week (or $23,660 per year) to $684 per week (or $35,568 per year).  The new rule will be implemented on January 1, 2020.  This is the first time the salary threshold has been increased since 2004.

 

Generally, unless employees are exempt, they are required to be paid 1 ½ times their regular rate of pay under the FLSA and the New York Labor Law (“NYLL”).  If an employer classifies an employee as exempt, then they can be paid a salary without overtime pay so long as the employee passes both a salary and duties test.  The new rule, as it stands, only addresses the salary threshold by increasing it nearly $12,000 per year for exempt employees to remain eligible under an exemption (e.g. executive, administrative, professional, etc.).  In addition, the new rule increased the salary threshold from $100,000 to $107,432 per year for employees to qualify under the “highly compensated” exemption under the FLSA. 

 

Notably, in New York, the salary basis test for employees was already higher than the newly increased threshold under the FLSA, as in 2020, employees will have to be paid the following salary in order to qualify for an exemption:

 

Employees in New York CityEmployees in Nassau, Suffolk and Westchester CountiesEmployees in the Remainder of New York State (“Upstate”)
$1,125.00 per week

($58,500 annually)

$975.00 per week

($50,700 annually)

$885.00 per week

($46,020 annually)

 

With the upcoming changes, it is important to update policies and pay practices to stay in compliance.  For questions as an employer or employee in New York, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com

 

New York State Human Rights Law Amendments Signed into Law

Previously, we posted about the changes that were being made to the New York State Human Rights Law (“NYSHRL”), more of which can be found here.  On August 12, 2019, Governor Cuomo officially signed the bill into law.   This is the latest of the laws signed by Governor Cuomo, since previously signing laws governing pay equity, salary history disclosure and hair discrimination.  Now that the bill has been signed into law, the below sets forth the various effective dates of the law for employers and employees in New York should be aware of:

Description of AmendmentEffective Date
Bans discrimination based on natural hair or hair stylesJuly 12, 2019
Requires courts to interpret the NYSHRL liberally regardless of the federal rollback of rights August 12, 2019
Requires employers to provide their employees with notice about the employer’s sexual harassment prevention policy in English as well as the employee’s primary language August 12, 2019
Allows for attorneys’ fees and punitive damages to be awarded to employees October 11, 2019
Eliminates Faragher-Ellerth affirmative defense for corrective action October 11, 2019
Eliminates Protects employees’ rights to pursue complaints by mandating that all non-disclosure agreements in employment contracts include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation October 11, 2019
Extends protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers October 11, 2019
Prohibits mandatory arbitration to resolve cases of discrimination and harassment in the workplace October 11, 2019
Creates statutory claim for discriminatory harassment October 11, 2019
Expands the coverage of the NYSHRL to all employers in the state (used to only cover employers with four or more employees) February 8, 2020
Extends the statute of limitations for employment sexual harassment claims filed with the Division of Human Rights from one year to three years August 12, 2020

Many employers in New York City are already bound by the amendments to the NYSHRL, but they should still review their policies to conform to the amendments. Indeed, the NYSHRL now contains a different standard than the New York City Human Rights Law (“NYCHRL”) by having an employee show that she was subjected to “inferior terms, conditions or privileges of employment” because of the employee’s membership in a protected class, which varies from the “treated less well” standard under the NYCHRL. Indeed, an employee does now not need to identify others within the employer’s workforce as a comparator to the plaintiff.

Employers outside of New York City must now revamp their policies and procedures to comply with the NYSHRL and understand that all employers can now be liable for significant damages, regardless of the employer’s size.  For further information, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com.

Sweeping Changes to the New York State Human Rights Law – Advantage : Employees

The New York State Legislature made sweeping changes to New York State’s anti-discrimination and anti-harassment laws, generally lowering the burdens for employees to file claims against their employers. Below are some of the highlights of the changes, which will go into effect on various dates after Governor Cuomo signs the bill:

1. All New York State Employers Are Covered
Previously, the New York State York State Human Rights Law (“NYSHRL”) only generally covered employers with four or more employees. This limitation is being eliminated so that all employers are now covered, regardless of how many employees they have.

2. Attorneys’ Fees Are Available in All Discrimination Cases
Immediately upon enactment, attorneys’ fees are going to be awarded to a prevailing party in any discrimination case covered by the NYSHRL. Previously, attorneys’ fee awards were discretionary and only applied to gender-based discrimination claims (along with housing discrimination).

3. Punitive Damages Are Available
Going in line with the City’s law, the NYSHRL will now allow punitive damages as a remedy in discrimination, harassment and retaliation lawsuits. This will apply to cases filed 60 days after the bill is signed into law.

4. No More “Severe or Pervasive” Standard
Previously, for employees to prevail on a sexual harassment claim, they were required to prove that the conduct to which they were subjected was severe or pervasive. Now, harassment of any kind can be demonstrated without proving it was severe or pervasive, although “petty slights and trivial inconveniences” will still not be actionable.

5. Faragher/Ellerth Defense is Eliminated
This defense allowed businesses to possibly dismiss claims for discrimination or harassment if they failed to follow internal complaint procedures in places by the company. Now, “[t]he fact that such individual did not make a complaint about the harassment to such employer [] shall not be determinative of whether such employer [] shall be liable.”

6. Similar-Situated Comparators No Longer Required
As another lowered threshold for employees, those claiming discrimination will no longer be required to show that they were treated less favorably than a comparator (being someone outside the employee’s protected class).

7. Protections for Non-Employees and Domestic Workers Expanded
Last year, the NYSHRL (and City law) was expanded to allow non-employees to file sexual harassment claims against employers. Now, the law is being expanded further to protect non-employees form any form of discrimination, harassment or retaliation, stating: “[a]n employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”

8. No More Non-Disclosure Provisions in Discrimination Settlements
Employers are now prohibited from including non-disclosure provisions in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, [] that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.”If the complainant is the one requesting the non-disclosure provision, it must be in plain English in the complainant’s primary language. The complainant will then have 21 days to consider the non-disclosure provision before signing and 7 days to revoke his/her signature.

9. Carve-Outs Required in Employment Agreements with Non-Disclosure Provisions
Commencing on January 1, 2020, if there is a non-disclosure provision in an employment agreement, such an agreement must have an express carve out stating that the employee is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”

10. No More Mandatory Arbitration Clauses
Just as with the passage of barring mandatory arbitration of sexual harassment claims last year, the amendments now expand the prohibition to all discrimination or retaliation claims.

11. Sexual Harassment Requirements Expanded
Employers with employees in New York will now be required to provide notice to such employees, both at the time of hire and during annual sexual harassment prevention training, that contains both the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.” Employers must provide this information both “in English and in the language identified by each employee as the primary language of such employee.”

12. Statute of Limitations Expanded to Three Years for Sexual Harassment Claims
While there is generally a one-year limitations period to file a gender discrimination claim with an administrative agency, the statute of limitations is now expanded to three years for filing a sexual harassment whether in court or with an administrative agency.

13. Liberal Construction of the NYSHRL
As with the City law, the NYSHRL is now going to be construed liberally and exceptions to the law construed narrowly in order to “maximize deterrence of discriminatory conduct.”

Employers throughout New York should be prepared for these changes and should revise their policies accordingly. For further information, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com.

Salary History Ban Going Into Effect In Suffolk County, New York

Last year, the Suffolk County Legislature unanimously passedthe Restrict Information Regarding Salary and Earnings Act (“RISE”), becoming one of the latest jurisdictions to ban employers from inquiring on an applicant’s salary history or using such information in assessing an applicant’s or employee’s compensation.  The purpose of RISE is to “break the cycle of wage discrimination and close the wage gap” that has historically impacted women and racial and ethnic minorities.

Commencing on June 30, 2019, employers and employment agencies in Suffolk County with four or more employees will be prohibited from:

  • Inquiring (meaning orally or in writing, or otherwise searching for such information), whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits; and
  • Relying on salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

RISE, however, allows employers to disclose and verify an applicant’s salary history when such disclosure or verification is required under federal, state or local law.  As well, RISE does not apply to the exercise of any right of an employer or employee pursuant to a collective bargaining agreement.

If there is a violation of RISE, an applicant may file an administrative complaint with the Suffolk County Commission on Human Rights, which could imposecivil penalties of up to $50,000, or up to $100,000 if the violation is “willful, wanton or malicious” against a covered employer or agency.  The applicant can also file a civil action, under which she could possibly recover compensatory damages, back pay, attorneys’ fees and costs if she prevails against the employer in the action.

Accordingly, employers in Suffolk County, New York should review their current applications and other hiring policies to confirm that they are not violating RISE that can subject them to civil penalties and litigation.  Furthermore, interviewers should be properly trained on the restrictions of asking about prior salary when interviewing an applicant.  For further information, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340or ypollack@yalepollacklaw.com.

TOMORROW is the Deadline for NYS Employers to Distribute a Compliant Sexual Harassment Policy

As a reminder to ALL employers in New York State, tomorrow is the deadline to distribute a policy compliant with the NYS sexual harassment law. If you follow this link, you will be able to locate the Model Sexual Harassment Policy and Complaint Form published by the State. If you need a WORD version, they are accessible on the State’s website.

The requirement to distribute compliant policies applies to ALL employers in New York State, regardless of size (yes, one (1) employee is sufficient to be governed by this law).
For the document itself, we suggest naming your company in the “Employer Name” section and then defining your company as (the “Company”) after providing the name. From there, you can simply insert “the Company” wherever is asks for “Employer Name.” As well, please ensure that you follow the other prompts for information, including the individual/department to where complaints should be made, along with contact information and instructions for filing a complaint in the Company.

Please note that this policy covers sexual harassment only. However, employers should know that sexual harassment (which is a form of gender discrimination) is not the only type of harassment covered by the law. Federal, state and local laws also prohibit unlawful discrimination and harassment for other protected classes.

The Law Offices of Yale Pollack, P.C. has prepared Equal Employment Opportunity policies that cover all forms of discrimination and harassment in the workplace, along with appropriate complaint forms. Although not required, it is suggested that employers adopt policies demonstrating their compliance with the law by adopting policies that prohibit all forms of discrimination in the workplace.

In addition to the policy, New York has also enacted laws that require training to all employees on sexual harassment. Such training must be completed no later than October 9, 2019. Again, the firm can assist with training employees against discrimination and harassment.

For further information, please call Yale Pollack at (516) 634-6340, or email ypollack@yalepollacklaw.com

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