New York employers, both public and private, must offer equal employment opportunities to all job applicants and employees. Under New York law, employers may not discriminate in their employment practices based on the following characteristics:
- Race
- Skin color
- Creed or beliefs
- Sincerely held practice of religion
- Disability
- National origin
- Sexual orientation
- Gender identity or expression
- Military status
- Predisposing genetic characteristics
- Sex
- Age
- Marital status
- Status as a victim of domestic violence
- Criminal record of arrests or convictions
Discrimination is not only refusing to hire or promote a person but also encompasses harassment, or a “continued pattern of unwelcome behavior,” exhibited by anyone in the workplace towards any employee that is based on any of these protected characteristics.
In New York City, protections are still more broad. Discrimination in employment on the basis of the following characteristics is also prohibited:
- Immigration or citizenship status
- Sexual and reproductive health decisions
- Employment status
- Credit history
- Caregiver status
In addition, in New York City, employers cannot discriminate against workers because they participate in the following activities outside of working hours. This is true as long as they do it away from the employer’s premises and without using the employer’s equipment or other property. These activities include:
- Political activities
- Legal use of consumable products, including cannabis
- Legal recreational activities
Are There Additional Protections Under New York Laws?
New York’s state legislature signed into law provisions that add strengthened protections against discrimination and harassment, including sexual harassment. These provisions were added to New York State’s Human Rights Law, and they apply throughout the state of New York.
This legislation strengthened New York’s anti-discrimination laws. The new legislation eliminated the requirement that harassment be “severe or pervasive” in order to be characterized as discrimination.
In New York, a person can file a legal complaint about harassment even if it is not “severe and pervasive.” However, an employer may assert as a defense the claim that the actions of which the victim complains are only “petty slights or trivial inconveniences.”
New York law also mandates that all non-disclosure agreements allow employees to file a complaint for harassment or discrimination with the New York Division of Human Rights or in a court of law. Moreover, under New York law, harassment or discrimination is committed whenever a person is subjected to inferior terms, conditions, or privileges that are inferior to those offered to others in their employment.
New York anti-discrimination laws provide protections for non-employees in the workplace, including:
- Contractors
- Subcontractors
- Vendors
- Consultants
- Other individuals providing services in a workplace
Are There Any Other Laws that May Affect Employment Discrimination Claims in New York?
A worker’s immigration status can affect claims they may have of employment discrimination. Immigration discrimination arises when an applicant or a worker is treated with prejudice or unfairly because of their national origin, immigration status or protected status.
If an individual is unfairly treated due to their accent or ethnicity, because they are from a specific country, or because they appear to be of a certain ethnic background, they are being subjected to national origin discrimination. If an individual is treated unfairly because of their citizenship or immigration status, they are facing citizenship status discrimination.
Under the Immigration and Nationality Act (INA), in the employment context, it is illegal to discriminate against a job applicant or a worker because of their citizenship status or national origin. Because of these laws, employers should be familiar with all applicable anti-discrimination laws to help ensure they provide a fair and equitable workplace.
As previously discussed, workers are also protected under anti-discrimination laws no matter their immigration status. A lawyer can help applicants, workers, and employers understand the laws that apply to their workplace as well as how they can ensure they remain in compliance.
In addition to the law discussed previously, there are other presidential executive orders that affect immigration and discrimination issues, including:
- Executive Order Protecting the American People Against Invasion: This outlines enforcement policies for removal, unlawful presence, and illegal entry of individuals who are unlawfully present in the United States.
- This order seeks to expand expedited removal.
- Executive Order Realigning the United States Refugee Admissions Program (USRAP): This places limits on how an immigrant can seek legal entry into the United States.
- USRAP is suspended pending additional evaluations.
- This allows refugees to be admitted on a case-by-case basis.
- Executive Order Guaranteeing the States Protections Against Invasion: This bars all individuals from entering the United States at its southern border, including asylum seekers.
- The Secretary of State and Department of Homeland Security (DHS) are allowed to admit individuals on a case-by-case basis.
- Executive Order Protecting the Meaning and Value of American Citizenship: This seeks to end birthright citizenship where all children born in the United States automatically receive citizenship.
- One of the child’s parents must be a permanent resident of the U.S. or a citizen for a child to be provided birthright citizenship.
- Birthright citizenship will not be provided to a child whose parents are in the U.S. on a temporary visa.
- This law is prevented from being enforced by a preliminary injunction and will likely change in the future.
These and other laws in the State of New York are all subject to updates or changes at a future time when there are changes in presidential administrations. They can also directly affect employment and employment discrimination towards immigrants, as they may have an impact on an individual’s immigration status as well as whether or not they are eligible to work in the United States.
Due to these possible changes, it is very important for both workers and employers to reach out to attorneys for any employment discrimination or immigration concerns they have.
How Can an Employee Establish Liability?
In order to establish liability on the part of the employer, an employee is now relieved of the burden of identifying a similarly situated person or employee who was treated more favorably. This was previously a requirement for a complainant under New York law. This is still a requirement under the law of many other states.
Also, an employee who wants to file a complaint is no longer required to complain to their employer first or file a formal grievance as may be called for by a collective bargaining agreement per New York labor laws. A person may file a claim directly with New York State’s Division of Human Rights.
If an employee should be successful in a civil lawsuit claiming discrimination or harassment, they are entitled to punitive damages from a private employer. Attorney’s fees may be awarded in all cases claiming employment discrimination or harassment.
Under New York law, the terms of a settlement agreement for an employment discrimination claim can only remain confidential if the employee victim wants it to remain confidential. Any and all agreements to the effect that a settlement is to remain confidential must be provided in written form to all parties to a lawsuit. It should be written in plain English and in the primary native language of the employee if that is a language other than English.
Does New York Law Protect People With Disabilities?
New York human rights law defines “disability” as “a physical, mental, or medical impairment which prevents the exercise of a normal bodily function.” There are no qualifications or limitations regarding the severity of the disability.
Under the federal Americans with Disabilities Act (ADA), there is a requirement that a disability “substantially limits a major life activity.” Under the NYSHRL, a disability or impairment is defined more broadly to cover more types of disabilities. Again, the NYSHRL applies across the state of New York.
New York human rights law prohibits employers from refusing to hire, interview, or promote an employee because of their disability. Paying a person less or offering them other diminished conditions of employment because of their disability is also prohibited. Also prohibited is any refusal to make reasonable accommodations for employees with disabilities.
The protection for disabled persons does not mean an employer is prohibited from terminating or refusing to hire someone whose disability might have an impact on their job performance. It does mean, however, that employers must make reasonable accommodations for such people.
Can a More Qualified Person Be Hired Instead?
An employer is not liable simply for hiring the most qualified applicant for a job, even if the objective requirements of a job implicate a protected class of people.
For example, a person may have a disability that prevents them from doing their job. If so, an employer may refuse to hire the person or fire them if reasonable accommodations that would enable the person to do the job competently cannot be made. Of course, if reasonable accommodations would enable a disabled applicant or employee to do a job competently, then the employer must provide the accommodations.
This is also the case under the federal ADA. An employer must make reasonable accommodations for a disabled employee if these would allow the person to do their job.
For example, if an employer is seeking people to model men’s clothing, they are not breaking the law by hiring only men. In this case, women, by virtue of their gender, are not qualified to do the job.
On the other hand, New York law does not prohibit employers from implementing affirmative action programs designed to increase workplace diversity. Thus, an employer can hire a less qualified person to promote workplace diversity, and the employer will not be liable to the more qualified person for discrimination.
How Do I Report Discrimination in the Workplace?
To report repeated, illegal discrimination in a person’s workplace, they may file a complaint with the New York State Division of Human Rights. A person can obtain a form for their complaint by mail by calling 212-416-8250.
After completing the form, the person may return it by mail or fax it to 212-416-6030. Or a person may contact the New York State Division of Human Rights by sending an email to [email protected].
New York State’s Division of Human Rights website can be found at https://dhr.ny.gov/. New York City’s Human Rights website can be found at https://www.nyc.gov/site/cchr/index.page. A person can also use the form to file a complaint with the New York Division of Equal Opportunity Development.
What Is the Statute of Limitations for Discrimination?
The statute of limitations for claims of sexual harassment in employment is three years from the date of the incident. The statute of limitations for all claims of discrimination and retaliation submitted pursuant to the New York State Human Rights Law (NYSHRL) is three years.
Do I Need the Help of an Attorney for My New York Employment Discrimination Issue?
If you believe that you have been a victim of prohibited discrimination or harassment in your employer, you want to consult a qualified New York discrimination lawyer. LegalMatch.com can connect you to a lawyer who can provide you with more information if there is a legal basis for your claim.
You may be an employer and have been accused of prohibited discrimination or want to set up policies and procedures to avoid such claims. In this case, you want to consult a New York discrimination lawyer.
Generally, an employer can refuse to hire a person so long as it is not motivated by discriminatory intent. If you are unsure about a particular case in your workplace, you want to get legal guidance from a New York discrimination lawyer.
Employers and employees alike can benefit from using LegalMatch’s free lawyers matching services to make sure they are updated on the most recent protections and requirements under New York State employment laws.
