FAQs: EMPLOYMENT LAW

 

Protected Characteristics

There are a number of different employment laws at the federal, state, and local levels.  Generally, the employment discrimination laws make unlawful certain conduct that is discriminatory based on what the law defines as a "protected characteristic".  Some protected characteristics include:

  • Race

  • Religion

  • Sex

  • National Origin

  • Age

  • Disability

The law prohibits employers from discriminating against employees in various employment contexts on the basis of these characteristics, including in hiring, promotions, pay, benefits, and termination.

Title VII of the Civil Rights Act of 1964 is the federal law that outlaws discrimination based on an employee's race, national origin, religion, or sex, as well as pregnancy.  The Americans with Disabilities Act is the federal law concerning discrimination against employees with disabilities.  The Age Discrimination in Employment Act is the federal law which makes age discrimination unlawful.

All of these federal laws also make it unlawful for employers to retaliate against employees who complain of discrimination.

New York State has its own anti-discrimination law called the New York State Human Rights Law, and New York City likewise has the New York City Human Rights Law.  Generally speaking, these laws, and especially the City law, are more employee-friendly than their federal counterparts, as the standards for what constitutes discrimination are lower under the City law than under federal law.  The City law also defines "disability" much more broadly than does the federal law.

The City law also protects certain characteristics that the federal laws do not, including:

  • Marital status

  • Partnership status

  • Caregiver Status

  • Domestic violence victim status

  • Previous arrests and convictions

  • Sexual Orientation (although a recent ruling has protected sexual orientation under federal law)

Hostile Work Environment

In order for a hostile work environment to violate any of the employment statutes, the hostile work environment must be based on a protected characteristic.  A work environment which is hostile but for reasons other than a protected characteristic will not violate the employment statutes.  Under federal law, for discrimination to constitute a hostile work environment, it must be "severe or pervasive".  Under the City law, discrimination amounting to a hostile work environment must be "above a petty slight or trivial inconvenience". 

Retaliation

The employment statutes make it unlawful for employers to retaliate against any employee who engages in "protected activity".  Under the federal law, an employee engages in protected activity when they either oppose discriminatory conduct or participate in any investigation, proceeding, or hearing relating to the anti-discrimination statute.  Opposition to discriminatory conduct generally takes the form of complaints to the employer. However, other actions, and sometimes inaction, may be deemed opposition and thus may constitute protected activity.  The types of activities that can constitute protected activity are wide-ranging and ever-evolving.

Once an employee has engaged in protected activity, he or she will have a claim against an employer who retaliates against them because of that protected activity.  The federal law generally requires the employee to have suffered an adverse employment action in order to maintain a claim for retaliation (e.g. termination, reduction in pay, given less hours, etc.).  The City law, on the other hand, defines retaliation much more broadly, and any action which would reasonably deter a person from engaging in protected activity will constitute retaliation under the City law.

 
 
 

 

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DISABILITY DISCRIMINATION LAWS:

What Types of Disabilities are Covered

The Americans With Disabilities Act, as well as the New York State and New York City Human Rights laws, all outlaw disability discrimination in employment.  All of these statutes first require that an employee have a disability as defined by the statute in order to be protected by the statute.  The federal law defines disability much more narrowly than the State and City laws, and includes only disabilities which "substantially limit a major life activity".  The City law defines disability as "any physical, medical, mental or psychological impairment, or a history or record of such impairment."

Reasonable Accommodations

The law then may require employers to provide reasonable accommodations to employees with disabilities.  In order to state a claim for disability discrimination, an employee must show both that an accommodation was reasonable, and that the employee could perform the "essential functions" of the job with or without the reasonable accommodation.  Many cases involving disability discrimination will depend on an analysis of the essential functions of the job, as well as the reasonableness of a proposed accommodation.  In some circumstances, giving an employee with a disability time off may be a viable accommodation, while factors such as the length of the leave may effect the reasonableness of the accommodation.  There are numerous potential accommodations to allow persons will disabilities to maintain their employment, and many are specific to an industry or even a particular job.

 
 

the family medical leave act:

The Family Medical Leave Act, or "FMLA", is a federal law that allows employees who meet certain criteria to take twelve weeks of unpaid leave per year due to a disability or to care for a family member.  Generally, to qualify for FMLA leave, an employee must (1) have been employed by the employer for at least twelve months, (2) have worked at least 1250 hours over the prior twelve months, and (3) works at a location where the employer has at least 50 employees within a 75 mile radius.  Assuming these criteria are met, an employee may be entitled to FMLA leave for any serious health condition which renders the employee unable to perform the essential functions of their job, the birth or adoption of a child, or to care for an immediate family member who has a serious health condition.  FMLA leave is not required to be taken in one continuous allotment, but rather may be used intermittently when the need arises so long as the leave remains under 12 twelve weeks per year.  An employee who qualifies for FMLA leave may not be terminated for taking such leave, and must be returned to their same or a substantially similar position up returning from the leave. 

 

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