How New York City Anti-Discrimination Laws Protect You (Part I)

Since the New York City legislature amended the New York City Human Rights Law in 2005 with the passing of the Restoration Act, New York Courts have liberally applied the Act, following through with the legislature’s intention of providing aggrieved and discriminated employees more access to remedies that had been taken away from them with sweeping Supreme Court decisions. In two parts, I’d like to explore how the Restoration Act has made a marked improvement on the already expansive New York City Human Rights Law.

In the content of disability discrimination – under federal and state law, employees with disabilities are entitled to reasonable accommodation to allow them to perform the essential functions of a job. The employer and employee are encouraged to enter into an interactive process to determine if there is a reasonable accommodation available, but are under no means required to engage in this process. Additionally, an employer is only obligated to offer a reasonable accommodation (one which is not unduly burdensome to the employer) and need not accept an accommodation that is preferred by the individual with a disability.

Beginning with the case of Phillips v. City of New York, the Appellate Division honed in on the city law’s offering more wide-ranging protections than the federal law and state law, going so far as to hold that if said accommodation is one that the employer does not want to implement, the employer will have the burden of proving undue hardship, even if the employer offers an alternative effective accommodation.  This was a great win for employees, since major multi-million/billion dollar corporations would clearly have a tougher time demonstrating that accommodations, which are desperately needed by disabled employees, are cost-prohibitive.

Another great step in the expansion of ant-discrimination laws in New York City came with the loosening of requirements in proving retaliation. An aggrieved employee is still required to demonstrate that they were involved in a protected activity, such as reporting a complaint to Human Resources or filing a claim with the Equal Employment opportunity Commission, but prior to the passage of the Restoration Act, under federal anti-discrimination laws, actionable retaliation required proof of “conduct that has caused a materially adverse impact on the terms and conditions of employment.” New York City decided to do away with that requirement and instead requires: The retaliation or discrimination complained of … need not result in an ultimate action with respect to employment, … or in a materially adverse change in the terms and conditions of employment, … provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.

With that said, in several landmark cases the Appellate Division indicated that almost any change in duties or place of employment could be considered retaliatory under city law and, therefore, Courts have suggested, this is always a jury question.  Again, the aggrieved employee/victim of retaliation is set to benefit – employers are less likely to get away with subtle retaliatory conduct that would not necessarily qualify as material and adverse under state and federal anti-discrimination laws.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Jeffrey Risman of Risman & Risman, P.C. Receives 2013 Clients’ Choice Award

When you choose to use a service or a product, it’s nice to know that you are getting the best. When it comes to legal representation for employment actions, the quality of the service you receive is even more crucial—it can mean the difference of a case won or lost, the difference between a future of financial stability or of financial hardship. When retaining New York Employment Attorney Jeffrey Risman of Risman & Risman, P.C., you can rest assured you are working with a legal professional who only provides the highest caliber of legal representation—clients have attested to it. This attorney recently received the Clients’ Choice Award for 2013 from Avvo due to the high level of top-ranking client reviews he received on his Avvo profile.

Avvo, a lawyer-rating website that is well known in the industry, provides its Clients’ Choice Award to attorneys who have received five or more client reviews with either 4-star or 5-star ratings. Not only has Mr. Risman met that requirement, but he has far exceeded it. His client reviews show that every single category of every single one of his client reviews has attained a 5-star “Excellent” rating (the highest client review rating available).

That means that those who have reviewed Mr. Risman on his profile believed he did the best job possible in multiple areas, which are titled “Trustworthy,” “Responsive,” “Knowledgeable,” and “Kept me informed.” There is also a place where clients can score the attorney’s overall rating.

Mr. Risman and his firm handle a broad spectrum of employment cases. By contacting the firm, you can work with a strong legal professional whose skills have been acknowledged by former clients, but also from his peers from inside and outside of the industry. Contact us today to set up a free initial consultation.

 

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New York City Offers New Protections for the Unemployed, Hooray!

June 11, 2013 is the date that New York City’s new law prohibiting discrimination in the hiring process of persons based on employment status finally goes into effect, specifically focusing on the “unemployed.” The legislative intent behind this amendment of the New York City Human Rights Law (“NYCHRL”) is steeped in the reality that the unemployed are having an extremely difficult time gaining new employment because of: 1) extended time they’ve been out of the workforce; or 2)the preconceived notion of an employer that a prospective hire is unemployed because they are a “bad” employee, or for several other unsubstantiated and predetermined reasons an employer may have for discriminating against someone for being unemployed.  This amendment to the NYCHRL will constitute another beneficial addition to the already broad and expansive anti-discrimination laws of New York City.

In order to truly understand what this amendment will prohibit, we need to examine the definition of what unemployment means.  “Unemployment” under the NYCHRL is defined as “not having a job, being available for work, and seeking employment.”  The amendment prohibits an employer from basing “an employment decision with regard to hiring, compensation or the terms, conditions or privileges of employment on an applicant’s unemployment.” The amendment additionally forbids employment advertisements that require current employment as a qualification for employment or disqualify applicants based on previous unemployment.  Lastly, the amendment further prohibits policies and practices that may have a disparate impact on unemployed potential hires, unless the employer proves as an affirmative defense that the policy is based on a substantially job-related qualification or the policy or practice does not contribute to the disparate impact.

As always, the NYCHRL applies to employers that employ four or more individuals (whether as employees or independent contractors (who are not themselves employers)), and where the impact of the employer’s alleged discriminatory conduct will be felt within the boundaries of New York City. Additionally, the NYCHRL provides for a broad array of remedies, including unlimited compensatory and punitive damages and attorneys fees awards.

Seeing that this is a brand new law, it’s unclear how employers will react – if they will adjust their interviewing or advertising processes proactively or wait until it’s too late and they’re being hauled into court.  There are also many unresolved questions since the law has not been litigated in court – does the law only bar considering current unemployment, or does it also bar taking into account a history of unemployment? What are examples of a substantially job-related reason for considering unemployment? Many questions are left unanswered about this new amendment to the NYCHRL, but what’s clear is the intent behind this legislation is virtuous and will hopefully provide much needed protection to the unemployed.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.