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.
Finally, in 2019, 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.
The 2019 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.”
The new 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.
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.
New York anti-discrimination laws protect non-employees in the workplace, that is, workers such as contractors, subcontractors, vendors, consultants, or others providing services in the workplace.
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 Civil.Rights@ag.ny.gov.
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 new laws passed in 2019 extended the statute of limitations for claims of sexual harassment in employment from 1 year to 3 years.
A law just passed in New York in 2023 extends the statute of limitations for all claims of discrimination and retaliation submitted pursuant to the New York State Human Rights Law (NYSHRL) from 1 year to 3 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.
