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A month ago, we introduced a new series through which we aim to educate and enlighten you about New York State and City laws that are applicable to the issues of workplace harassment, discrimination, & retaliation. In Part IV of this series, we covered the diverse classes that are protected against unlawful conduct and workplace harassment, discrimination, & retaliation by several laws including the New York City Human Rights Law (NYCHRL) (NYC Administrative Code 8-101 et seq.), the New York Equal Pay Act (N.Y. Lab. Law § 194), the New York State Human Rights Law (NYSHRL) (N.Y. Exec. Law § 290 et seq.), and the Reproductive Health Discrimination Protection (N.Y. Lab. Law § 203-e). In this blog, which is Part V of this series, we shall move forward the discussion and hammer on “Prohibitions,” particularly any conduct that is prohibited by these laws. As usually, we shall look into these laws in the same order as in other Parts of the series.

New York City Human Rights Law (NYCHRL)

As we have seen in the past blogs, the NYCHRL is the most comprehensive law when it comes to protecting New York City’s employees from many issues of workplace harassment, discrimination, & retaliation. Under the NYCHRL, employers are prohibited from:

  • Harassment based on the membership of an individual in a protected category
  • Discrimination in hiring or firing or training selection.
  • Retaliating against an applicant or employee for assisting or testifying in a proceeding under the NYCHRL, filing a complaint, or opposing discriminatory practices.
  • Discrimination in compensation or other terms and conditions of employment.
  • Failing to provide a reasonable accommodation for a psychological, mental, or physical impairment.
  • Abetting or aiding any conduct that the NYCHRL prohibits.
  • Failing to reasonably accommodate an applicant or employee’s religious observance or beliefs.
  • Making an inquiry, printing or circulating an advertisement or a statement, or employment application with prospective employment that expresses a limitation on the basis of membership to a protected class.
  • Failing or refusing to take part in a cooperative dialogue within a reasonable time with an individual whom the employer has notice may require an accommodation or a person who has requested a reasonable accommodation due to needs as a victim of stalking, sex offences, or domestic violence, childbirth, pregnancy, disability or related medical conditions, or due to religious needs.

In addition to these prohibitions, the NYCHRL has also provided additional guidance regarding other forms of discrimination. Some of these include:

Hair-based race discrimination – In a directive issued by the New York City Commission on Human Rights in February 2019, it is clear that the individuals’ rights to maintain hairstyles or hair that are closely associated with their cultural, ethnic, or racial identities are protected by the NYCHRL. This guidance focuses on policies addressing natural or hairstyles that are most typically associated with black people following the acknowledgment that many communities are adversely affect by grooming policies. Currently, the NYCHRL considers direct evidence of disparate treatment based on race and/or other relevant protected classes to include policies that force employees to relax, straighten, or otherwise keep their hair in a certain way to conform to employer expectations.

Examples of violations include grooming policies that:

  • Prohibit hair that extends a given number of inches from the scalp.
  • Require the alteration (straightening or relaxing hair) of the state of employees’ hair to conform to the employer’s appearance standards.
  • Prohibit fades Bantu knots, Afros, cornrows, braids, locks, or twists.

Gender-based (including identity & expression) Discrimination – Similarly, the New York City Commission on Human Rights’ rules were amended effective March 9, 2019 to provide instances of unlawful gender discrimination under the NYCHRL. Under the amended rules, an employer is considered to have violated the NYCHRL is the employer deliberates refuses to use a person’s self-identified name, gendered title, or pronoun, especially if the individual’s gender motivated such a refusal.

Discrimination against stalking victims, sex offenses, or domestic violence – As provided for under NYC Administrative Code 8-107, subd. 27(a), the NYCHRL prohibits employment discrimination based on an applicant or employee’s status as a victim of stalking, sex offence, or domestic violence. Further, an employer who refuses to take part in a cooperative dialogue within a reasonable time with an employee who the employer has notice may require an accommodation or who has requested such a reasonable accommodation out of need as a victim of stalking, sex offence, or domestic violence is considered to have violated the NYCHRL.

Further, the NYCHRL also prohibits employment discriminatory practices based on other issues such as an employee or applicant’s criminal history, ban-the-box, consumer credit history, and salary history.

New York Equal Pay Act

Under this law, employers are prohibited from:

  • Terminating or disciplining employees for discussing their current salary or wages. However, it is crucial to note that on February 1, 2017, new regulations promulgated by the New York Department of Labor allows employers to place reasonable limitations on the manner, place, and time that wages and salaries can be discussed by employees. As provided for under N.Y. Comp. Codes R. & Regs. tit. 12, § 194-1.3, any such limitations must be (1) crafted to leave open ample alternative channels for the communication of information, (2) narrowly tailored to serve a significant interest, and (3) justified without reference to the content of the regulated speech.
  • As provided for under N.Y. Lab. Law § 194(1), payment discrimination, effective October 8, 2019, between an employee with status within one or more protected classes and another employee without status within the same protected class or classes for substantially similar work, jobs that are performed under similar working conditions, or that require equal responsibility.

New York State Human Rights Law (NYSHRL)

Conduct that is prohibited by the NYSHRL include, but not limited to:

  • Harassment.
  • Discrimination in hiring or firing.
  • Retaliating against an applicant or employee for assisting or testifying in a proceeding under the NYSHRL, filing a complaint, or opposing discriminatory practices.
  • Discrimination in compensation or other terms and conditions of employment.
  • Failing to provide a reasonable accommodation for a medical, mental, or physical impairment.
  • Abetting or aiding any conduct that the NYSHRL prohibits.
  • Failing to reasonably accommodate an applicant or employee’s religious observance or beliefs.
  • Making an inquiry, printing or circulating an advertisement or a statement, or employment application with prospective employment that expresses a limitation based upon a protected class.
  • Discriminating against an individual with a disability based upon their use of a service dog.

Reproductive Health Discrimination Protection

Under the New York State Labor Law, an employer is prohibited from:

  • Taking any retaliatory personnel action or discriminating against an employee with regards to privileges, conditions, compensation, or terms of employment based on or because of the employee’s or their dependent’s decision making in reproductive health on issues such as the access or use a given medical service, device, or drug.
  • Retaliating against an employee or applicant for taking part or contributing to a proceeding concerning discriminatory conduct, being the cause of the institution of such a proceeding, or for complaining of discriminatory practices.
  • Accessing personal information of an employee concerning the employee’s or their dependent’s decision making in reproductive health on issues such as the access or use a given medical service, device, or drug without prior informed affirmative written consent from the employee.
  • Asking an employee to sign a waiver or other document with the aim of denying the employee the right to make their own decisions regarding reproductive health on issues such as the access or use a given medical service, device, or drug.

In Part VI of this series, we endeavor to provide you with a hands-on guide on how to go about “Discrimination and Harassment Claims” under the various laws discussed in this blog.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.