Pregnant New York Workers Have Greater Potential Accommodation Rights Than Under Federal Law

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The recent NY Times article titled "Miscarrying at Work: The Physical Toll of Pregnancy Discrimination" is an important overview of the challenges faced by many pregnant American workers under current federal law.

“It was the worst thing I have ever experienced in my life,” Ms. Hayes said.

Three other women in the warehouse also had miscarriages in 2014, when it was owned by a contractor called New Breed Logistics. Later that year, a larger company, XPO Logistics, bought New Breed and the warehouse. The problems continued. Another woman miscarried there this summer. Then, in August, Ceeadria Walker did, too.

The women had all asked for light duty. Three said they brought in doctors’ notes recommending less taxing workloads and shorter shifts. They said supervisors disregarded the letters. . . . But refusing to accommodate pregnant women is often completely legal. Under federal law, companies don’t necessarily have to adjust pregnant women’s jobs, even when lighter work is available and their doctors send letters urging a reprieve. . . . It says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.” (link)

Fortunately, pregnant women working in New York State and New York City (and several other states) have broader protections than under federal law.

“Outside Washington, there have been fewer roadblocks. At least 23 states have passed laws that are stronger than current federal protections.” (link)

For employers with at least four employees, New York and New York City law explicitly requires employers to reasonably accommodate pregnant workers. This right means that, unless the accommodation would imposes what the laws describes as “an undue hardship” on the employer, the employer is legally required to provide an accommodation to a pregnant worker (physically working in New York). Under some circumstances, pregnant workers working for employers in NYC are covered by this law even if the company classifies its workers as independent contractors.

You can find guidance on the New York State pregnancy discrimination law here and the New York City pregnancy discrimination law here.

Because the potential right to a pregnancy accommodation can be a complicated legal question involving a back-and-fourth “interactive process” with the employer, pregnant workers are well-advised to seek legal guidance as soon as possible after becoming pregnant.

Can I Really Sue My Boss Individually in NYC – And What Does That Really Mean?

One important limitation of Title VII, the federal law that protects most employees at most larger companies from discrimination, is that the law only allows employees to hold the company liable.  

So, if an employee brings a claim because of a manager’s harassment under Title VII, only the company will ever have to directly pay an award of damages to the injured employee.  While the court may impose injunctive requirements on the company that affect the individual harasser, these injunctive requirements nonetheless still fall squarely on only the employer’s shoulders.  

For example, if the offending harasser leaves the organization, they will likely no longer be subject to any court-ordered injunctive requirements.

Of course, there may be internal consequences for the harassing supervisor, but any action taken against the harasser will be at the discretion of the company, not necessarily mandated by law.  While companies are usually not thrilled with supervisors who harass employees and cause them to file discrimination lawsuits, inevitably there are exceptions, where even successful lawsuits do not result in an employer fundamentally addressing issues of discrimination.

Given these limitations, technically a sexual harasser could harass many employees, resign when a lawsuit is filed, and leave without directly paying their victim(s) a single cent.

What’s an aggrieved employee to do?

Fortunately, in New York City and New York State, there are protections beyond those provided under Title VII by way of the New York City Human Rights Law  ("NYC Human Rights Law") and the New York State Human Rights Law.  

This post focuses on the unique aspects of the NYC Human Rights Law, one of the most protective anti-discrimination and retaliation statues in the country.

Under the NYC Human Rights Law, employees who meet the definition of a “supervisor” are personally liable for any discrimination they engage in.

You heard correctly.  Your supervisor may be personally liable, out of their own funds, for discrimination, along with a NYC employer.

Many NYC supervisors and other employees are likely surprised to hear this.  Indeed, it is likely that the vast majority of supervisors and other employees are unaware that this is the case in NYC.

This provision should certainly give all current and potential “supervisors” great pause with respect to their conduct in the office.   If their actions result in a lawsuit alleging discrimination or retaliation an employee, perhaps one who has no issue with the larger company -- only the specific supervisor -- could technically decide to only sue the supervisor in their personal capacity.  

While an employee is unlikely to take that route where he or she is not certain the supervisor (as opposed to the employer) could actually satisfy any judgment given their financial resources, this fact is something NYC supervisors are well-advised to keep in mind during their interactions in the workplace.

The protections of the NYC Human Rights Law not only include potential relief against individual supervisors, but, importantly, the standard for discrimination violations is also far more liberal than Title VII, making it much more likely that an employer and/or supervisor will be found liable for discrimination with respect to identical conduct.   

By way of example, in NYC, a supervisor can potentially find themselves liable for an employee’s emotional distress damages, as well as attorney’s fees and costs, by making a single harassing discriminatory statement to an employee.  

Each side may then certainly litigate the appropriate amount of emotional distress damages, but, in any event, the employee will, in many  circumstances, have an argument that the employer and/or supervisor are personally liable to them for emotional distress damages.

New York City is not only a unique place to live, it has a uniquely protective regime of anti-discrimination and anti-retaliation laws  that put employees on, at least, less unequal footing with supervisors when addressing discrimination and retaliation in the workplace.

A cautionary note, however, is that while the NYC Human Rights Law is expansive, it is not limitless.  Every workplace slight is not necessarily discrimination or retaliation, and you should consult with an attorney before assuming you have a potential claim against an employer and/or supervisor merely because you have been treated poorly or unfairly in the workplace.

The NYC Human Rights Law also does not apply to employers with less than five employees.


The Dugger Law Firm, PLLC and Liddle & Robinson L.L.P. File Race Discrimination Claim Against 643 Broadway Holdings LLC (d/b/a Bleecker Kitchen & Co.) and Joshua Berkowitz

On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC  (d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz.  The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker.  The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers.  Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and Michael Grenert of Liddle & Robinson L.L.P.

NYC Sued for Inaccessible Sidewalks For Visually and Physically Disabled

Earlier this week Disability Rights Advocates filed a class action suit against New York City regarding the inaccessibility of NYC streets to the disabled:

"In a complaint received by the United States District Court for the Southern District of New York, the group, Disability Rights Advocates, said the class-action suit aimed to “end decades of civil rights violations” in what is ‘arguably, for non-disabled residents, the most pedestrian-friendly large city in the United States.’
Sidewalks and pedestrian routes, the group said, are often inaccessible for blind New Yorkers and people who use wheelchairs, walkers and other travel aids. Among the dangers, the group described curbs without ramps at pedestrian crossings, midblock barriers like raised concrete, and broken surfaces that can imperil wheelchair and cane users.
The focus of the suit is Lower Manhattan, below 14th Street, where problems are pronounced, according to the complaint.” (link)

The lawsuit, which alleges violation of both federal and city law, seeks to certify a class action of “all persons with mobility and/or vision disabilities who have been and are being denied the benefits and advantages of New York City's pedestrian rights-of-way in Lower Manhattan because of Defendants' continuing failure to design, construct, and maintain pedestrian rights-of-way that are accessible to persons with mobility and/or vision disabilities.”

 The complaint seeks only declaratory and injunctive relief – including that the City:

a. Ensure that pedestrian rights-of-way, when viewed in their entirety, are readily accessible and usable by persons with vision and mobility impairments.

b. Undertake prompt remedial measures to eliminate physical barriers to access to pedestrian rights-of-way to make such facilities accessible to Plaintiffs in accordance with federal accessibility standards.

 c. Maintain any existing accessible features of Defendants' pedestrian rights-of-way so that such features provide full usability for persons with vision and mobility impairments.

 d. Ensure that all future new construction and alterations to sidewalks and streets results in the provision of pedestrian rights-of-way that are fully compliant with federal accessibility standards;

 e. Prepare a complete Self-Evaluation and a complete and publicly available Transition Plan regarding the accessibility of existing pedestrian rights-of-way in compliance with Title II of the ADA and Section 504.

 Some interesting observations from the complaint:

a)  more than 600,000 New Yorkers with mobility and vision disabilities continue to be excluded from the pedestrian culture that is so critical to community life in New York City because many of the City's sidewalks and pedestrian routes are too dangerous for use by persons with disabilities.”  (emphasis added).
b)    “A recent survey conducted by the Center for Independence of the Disabled ("CIDNY") of 1066 curbs in Lower Manhattan found that more than seventy-five percent of the corners surveyed had barriers presenting safety hazards to persons with mobility and vision impairments, including nearly a quarter of the curbs surveyed having no curb ramps whatsoever.” (emphasis added)

Lastly, the complaint notes that the suit was filed only after the De Blasio administration “refused to provide meaningful access to their sidewalks and pedestrian routes by making improvements to curb ramps and sidewalks over a reasonable period of time” or “participate in structured settlement negotiations to discuss these proposed improvements.”

It will be interesting to see how the professedly liberal De Blasio administration handles this litigation in the long term. 

Notably, shortly before De Blasio took office, and after several years of litigation, the Bloomberg administration finally settled a class action lawsuit concerning the accessibility of NYC taxicabs to the disabled.

The De Blasio administration obviously cannot waive a magic wand and fix every sidewalk curb in a day.  But why not enter into cooperative negotiations to formulate a reasonable plan to address this problem instead of wasting money, time, and resources defending a lawsuit - only to eventually settle anyways years later? Moreover, this suit concerns the disability rights statutes that advance the progressive platform and governance the administration has repeatedly stated it is focused on making a reality in NYC?

There are a lot of potential supporters, and ultimately votes, available from the visually or physically impaired NYC community that would also make these efforts politically worthwhile - that is if these voters can safely get to the voting booth on a NYC street.

 

Recently Pregnant Employees Also Protected From Pregnancy Discrimination For Four Months

Citing recent decisions from within the Second Circuit, New York federal Judge J. Paul Oetken found that protection from pregnancy discrimination extends to include recently pregnant women in addition to pregnant women:

Katherine Albin alleged viable pregnancy discrimination claims against Thomas Pink Inc., its corporate parent LVMH Moet Louis Vuitton Inc., and two supervisors under Title VII of the 1964 Civil Rights Act and New York state and city law, the U.S. District Court for the Southern District of New York said.  It found that the promotion denial may have occurred three and a half months after Albin gave birth to her first child.

Judge J. Paul Oetken cited emerging case law within the U.S. Court of Appeals for the Second Circuit holding that women who are four months or less removed from giving birth are still protected by Title VII's prohibition against pregnancy discrimination."

While observing that at some point after a pregnancy ends protection from pregnancy discrimination also comes to an end:

"[P]regnant women, women who very recently gave birth, and women on maternity leave are unquestionably within the protected class of pregnant persons, 'at some point in time such women are no longer 'affected by pregnancy, childbirth, or related medical conditions' and, thus, are not protected.'" (internal citations omitted) (link)

the court found that protection generally continues for approximately four months after a pregnancy:

"Distinguishing among previously pregnant women to determine who is still affected by pregnancy requires selecting a temporal cutoff based on the facts of the given case.  While ultimately dependent on the factual situation of a specific claim, a pattern has developed in this Circuit establishing a loose line at approximately four months from the date of birth." (internal citations omitted) (link)

In my view, along with age and disability discrimination, pregnancy discrimination is one of the more prevalent forms of discrimination today.  Unlike explicit race and gender discrimination, pregnancy discrimination (in its varied forms) does not carry the same heavy stigma and is surprisingly prevalent. 

Unfortunately, although prevalent, it is often unrecognized and/or unreported.

This decision goes a long way to help advance anti-discrimination protections for pregnant and recently pregnant employees.