At Miletti Law, the Authoritative Force in Employment and Labor Law, we work relentlessly to keep you #InTheKnow about local, state, and federal laws that affect you, as the employer or employee, or your business.

We are firm of our word, we honor our promises to our unusually motivated® readers and, thus, we will continue updating this series with yet another enlightening, trustworthy, and essential piece of information in a manner that only Miletti Law can. Picking up from the last blog, we continue to power through some of the more significant laws developed as it concerns New York City’s labor and employment industry, specifically regarding workplace harassment and discrimination issues.

As we are the authoritative force in Employment and Labor Law we drive to educate both employers and employees with tips and guidance on how to remain compliant and ahead of the game.

Key to this series, this post contains a very critical section on what the anti-discrimination law says about dealing with COVID-19 at the workplace.

WORKPLACE HARASSMENT & DISCRIMINATION; A CONTINUATION

In the previous post “#BeInTheKnow: Of NYC Major Labor and Employment Laws: An Update,” we mentioned that The New York City Human Rights Law (NYCHRL) is one the most vital local law that affects employees and employers indiscriminately.

What Punitive Damages, Cost of Claims, Expert Fees, Attorney’s Fees, and Civil Penalties are involved?

Punitive Damages

While there is no cap, punitive damages are recoverable in a civil action brought under the NYCHRL. Under the NYCHRL, the standard through which punitive damages are recovered is less difficult and easier to satisfy, as compared to the same under Title VII of the Civil Rights Act. Specifically, the standard in which damages are determined under the NYCHRL regards whether the wrongdoer has taken part in discrimination with conduct so reckless as to amount such disregard, a ‘conscious disregard of the rights of others, or recklessness, or wanton or willful negligence.

Cost of Claims, Expert Fees, Attorney’s Fees

As per the NYCHRL, cost of claims and reasonable costs of claims, expert fees, and attorney’s fees may be awarded to the prevailing party in City Commission proceedings. These fees and costs are available even when a Plaintiff prevails for a nuisance value about.

Civil Penalties

Under the NYCHRL, a civil penalty of up to $125,000 can be imposed by the City Commission against any individual who has taken part in a discriminatory practice. Further still, the City Commission may impose a penalty of up to $250,000 if it establishes that the discriminatory practice was the outcome of malicious, wanton, or willful conduct by the individual.

EMPLOYER COMPLIANT TIPS

How Do You Avoid Sexual Harassment Claims under the NYCHRL?

As the old adage goes, an ounce of prevention is better than a pound of cure. Therefore, employers should be proactive in taking the necessary measures to prevent and avoid such claims in the first place. Such proactive measures include:

  • Staying compliant with the Stop Sexual Harassment in NYC Act by creating a sexual harassment policy, keeping and maintaining records, conducting anti-sexual harassment interactive drills for all employees and training new employees, posting and distributing the NYC Commission’s anti-sexual harassment rights and responsibilities notice to all employees;
  • Taking appropriate disciplinary action against anyone who engages in conduct that constitutes sexual harassment in the workplace;
  • Conducting thorough and prompt investigation regarding all sexual harassment complaints and keeping record of actions taken against individual and such complaints;
  • Adopting a policy on romantic relationships that bars and demands prompt reporting of sexual and romantic relationships between subordinates and supervisors;
  • Using training sessions and policies to create, promote, reinforcing a ‘speak up’ culture in the workplace.

How Do You Defend Sexual Harassment Claims under the NYCHRL?

Unfortunately, things tend to get out of hand sometimes. In such cases, you should factor in the following tips when evaluating possible defenses and the merits of a claim if you are an employer with a position that allows you to defend NYCHRL sexual harassment claims:

  • Checking for procedural defects such as failure to file within the permissible 3-year statute of limitations period;
  • Conducting thorough investigations on the substance and truth of the allegations;
  • Establishing as an affirmative defense that the sexual harassment complaint is what could be rendered as “petty slights or trivial inconveniences.”

What is NYCHRL’s Coverage on “Discrimination” related to COVID-19?

Hitherto, no amendments have been to the NYCHRL in response to COVID-19. However, in a recent notice, the NYC Commission on Human Rights directed employers that under the NYCHRL, perceived or actual COVID-19 infection should be protected as a disability. In the same notice, the Commission directed employers not to harass or discriminate against employees with perceived or actual COVID-19 infection, or based on a perceived or actual history of such an infection. Further, the Commission directed that it is a crime for employers to discriminate or harass against employees, based on the assumption that they are more likely to be infected with or contract COVID-19 because of perceived or actual personal characteristics such as disability, national origin, color, race, or any other protected status.

This means that before you make any assumptions and find yourself on the wrong side of the anti-discrimination law in NYC, the existing provisions of the NYCHRL still affords protections to persons facing COVID-19-related discrimination based on the personal characteristics mentioned above.

As usual, don’t miss the next piece so that we, the authoritative force in Employment and Labor Law, can keep you informed and enlightened! In the interim, if there are any questions or comments, please let us know via the Contact Us page!