Second Circuit Reaffirms Broad Application of New York City Human Rights Law

As we have mentioned in the past, the New York City Human Rights Law provides employees that work in New York City with some of the broadest anti-discrimination and anti-retaliation protection of any employment laws, far more than what is covered by federal and state laws.  Recently, the Second Circuit reaffirmed this point when it reversed a lower federal court decision dismissing an individual’s claims against her former employer.  The case is Mihalik v. Credit Agricole Cheuvreux North America, Inc. and the decision can be found here.

Facts of Mihalik’s Case

In this case, Mihalik alleged that, from the beginning of her employment, her manager (who was also the CEO) paid “special attention” to her, including: (i) asking her about her relationship status and whether she preferred older men or was a “cougar,” (ii) often commenting on her appearance by telling her she looked “sexy” or “promiscuous” and that she should “dress like that every day,” (iii) telling her that they should coordinate business travel arrangements so that they could “enjoy traveling together,” (iv) engaging in explicit sexual conversations in the workplace, and (v) propositioning her on at least two occasions.  Overall, Mihalik alleged that her manager’s conduct was typical of the boy’s club atmosphere which existed in the office.  For her part, Mihalek rejected her manager’s propositions and complained to a number of the company’s other employees.  Shortly thereafter, Mihalek was fired for “failing to complete an assignment.”

After she was fired, Mihalik filed a complaint in federal court asserting claims under the NYCHRL.  After the parties completed discovery, the court dismissed Mihalik’s complaint after analyzing her claims under the stricter federal standards as well as the more lenient NYCHRL standards.

2005 Amendments to the NYCHRL

In 2005, the New York City Council passed the Local Civil Rights Restoration Act which explicitly provided that courts had been construing the NYCHRL “too narrowly to ensure protection of the civil rights of all persons covered by the law” and “underscore[d] that the provisions of New York City’s Human Rights Law are to be construed independently from similar or identical provisions of New York state or federal statutes.”  Despite the plain language of the amendment, courts continued to erroneously apply the stricter state and federal standards to claims under the NYCHRL until a state appellate court explicitly rejected such an analysis of claims under the NYCHRL.

Second Circuit’s Decision

In reversing the district court’s dismissal of Mihalik’s complaint, the Second Circuit reiterated a few key points:

  • The NYCHRL is not a “general civility code” and will not provide a claim where an individual has an obnoxious or overbearing boss, instead, a plaintiff in a gender discrimination case must show that he or she was treated less well at least in part because of their gender;
  • In order for an employer to avoid a claim of discrimination, it must present evidence which establishes, as a matter of law, that discrimination played “no role” in the employer’s action;
  • Even a single comment that objectifies women made in circumstances where that comment would, for example, signal views about the role of women in the workplace may be actionable;
  • An employee is not required to show that the discrimination or harassment was “so severe or pervasive so as to alter the terms and conditions of employment” (as federal and state law require), instead the Second Circuit reiterated that “a focus on unequal treatment based on gender . . . is in fact the approach that is most faithful to the uniquely broad and remedial purposes of the local statute;”
  • “Even a poorly-performing employee is entitled to an environment free from sexual harassment” and “analysis of the NYCHRL must be guided by the need to make sure that discrimination plays no role in the workplace.”

While the Second Circuit’s decision doesn’t break any new legal ground, the decision reaffirms the broad application of the NYCHRL and to address the “uniquely broad and remedial purposes” of the NYCHRL.  The NYCHRL remains a powerful tool for employees in New York City to use to fight all types of discrimination in the workplace.

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Is A Verbal Employment Contract Enforceable In New York?

The general rule is that oral employment contracts are NOT enforceable in New York; instead, an employee will be an employee “at will” – meaning that your employment can be terminated for any or no reason with little or no notice.  So while your boss may like you and value your contributions to the company, it doesn’t mean anything if he or she tells you that you can work there “as long as you want,” “for a long time” or “forever.”  There is simply no guarantee that you will be employed for any period of time or that your job duties or salary couldn’t change at a moment’s notice.

Statute of Frauds

New York’s Statute of Frauds is a general law that requires that certain types of agreements be in writing.  While the Statute of Frauds has a number of provisions that apply to all contracts, the provision that is of particular importance here is the section that requires that any agreement that is not – or cannot – be performed within one year, must be in writing and signed by the party that it is being enforced against (in your case, your employer).  Courts have typically held that oral employment agreements that are open ended or for an undefined period of time violate the Statute of Frauds and, as a result, are unenforceable and the employee will be “at will.”

Conversely, if the oral employment agreement is meant to last for less than one year (which is likely rare), it can be enforceable if there is sufficient evidence that the parties have reached an agreement as to all the important terms.

Importance of Written Agreements

As the above makes clear, if you want to be sure that you have an agreement for a specific period of time, you should make sure that you get the agreement in writing.  While many employers will be reluctant to do so, this is really the only way to ensure that you have an agreement that will be enforceable in court.  If you have additional questions about drafting, negotiating or enforcing a written agreement, it is important that you consult with an attorney that specializes in this area of the law.  If you would like to be connected with an attorney that may be able to help you, please contact us here.

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Can I File for Unemployment if I was Fired?

The general rule is that you are eligible for unemployment unless you quit your job without a good reason or were fired for engaging in “misconduct.”  Many people think that they can’t receive  unemployment if they are fired for any reason, but that is simply not the case.

While the Unemployment Insurance Law does not define “misconduct,” it is generally held to mean “any volitional [meaning ‘voluntary’ or ‘done of your own free will’] act or omission which is detrimental to an employer’s interests.”  This definition is still pretty broad, but courts have held that inefficiency, inadequate performance, inadvertent or ordinary negligence, and good faith errors in judgment do NOT meet the definition of “misconduct.”  Additionally, if your employer terminates you for something that you have done in the past that the employer knew about and did not fire you, the employer cannot later claim that it terminated you for this misconduct.  However, if you are fired for repeated absences or latenesses without a good reason, that is considered misconduct and you may be disqualified from receiving unemployment benefits.

With this in mind, it is important to remember that each case is unique and will depend on the specific facts and circumstances.  If you have questions about whether you are entitled to unemployment compensation, you should speak with an attorney.  If you would like to be connected with an attorney, please contact us here.

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Can My Boss Refuse To Let My Attorney Attend A Meeting?

Unless you are member of a labor union, it will be up to your employer whether you will be permitted to bring an attorney or other representative to any meeting, whether it be in response to a complaint you made or in order to discipline you for something.  For the most part, employers are unwilling to permit an employee to bring an attorney with them.  As an employee, you don’t have much choice; if you refuse to meet with them without an attorney or representative, you can be disciplined for insubordination or failing to cooperate with an investigation.

Labor Union’s and “Weingarten Rights”

The National Labor Relations Board and the U.S. Supreme Court have held that members of a labor union are entitled to have a union representative (not necessarily a lawyer) present for an investigatory interviews  – which is generally interpreted as (1) any meeting where management questions an employee to obtain information AND (2) the employee has a reasonable belief that discipline or other adverse consequences may result from the meeting.  If it is an investigatory interview, the employee can request union representation either before or at any point during the interview and the manager has three choices:

  1. Grant the request and delay questioning until the union rep arrives;
  2. Deny the request and end the interview; or
  3. Give the employee the choice of having the interview without representation or ending the interview.

If the manager denies the request and continues with the meeting, the employee can refuse to answer questions and the manager’s conduct may give rise to a separate unfair labor practice charge.

Non-Unionized Employees

If you are not a member of a labor union, it’s up to the employer and, as noted above, most employers refuse to permit an attorney to be present for the simple fact that there is nothing in it for them to allow an attorney to attend.  They also may fear that the attorney will attempt to disrupt the meeting or investigation.  If you are an employee that is being asked to meet with your manager and you have questions about what your rights are, you should consult with an attorney that can answer your questions.  If you would like to be connected with an attorney that may be able to assist you, contact us here.

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Can I Be Fired For Something I Post on Facebook or Twitter? [UPDATED]

Every week, it seems there is another story of someone being fired for something wrote on either Facebook or Twitter.  Because we believe it is our mission here to help educate the workers of New York City and because we don’t want to see more people lose their jobs, we recommend that employees exercise caution in the Facebook and Twitter usage.  The old saying, “Don’t say anything you wouldn’t want to see on the cover of the New York Times,” is just as true as ever in this age of social media.

Posting on Facebook or Twitter are treated the same as any other workplace discussions – only they can be preserved for all eternity.  As we have commented many times on our blog, New York is an at-will employment state, so your employer can terminate your employment for any or no reason – including because they didn’t like what you wrote on a social media website.  By the same token, if you call out sick and your boss sees that you are posting pictures from Mexico, he would be perfectly justified in firing you for improperly taking a sick day.  That being said, there is one growing area of protection for employees.

The NLRA’s Protection of Concerted Activity

There are certain times where your comments on a social media site can be considered protected activity which an employer cannot legally use as a basis to terminate your employment.  While the National Labor Relations Act is generally considered to protect employee’s rights to organize, join and participate in labor unions, the law goes much further than that and protects employees that engage in “concerted activity” – which is defined as two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.  Examples of concerted activity include:

  • two or more employees addressing their employer about improving their pay;
  • two or more employees discussing other work-related issues (e.g., safety concerns); or
  • an employee speaking to to an employer on behalf of one or more co-workers about improving workplace conditions.

So if your Facebook/Twitter posts can fit in one of the above categories, then you may be protected – but we suspect that the vast majority of people’s posts do not fall into these categories, so consider yourself warned.  Finally, here are some helpful tips from about posting on social media and not getting fired.

[UPDATE] Union Employees

The above does not necessarily apply to many members of labor unions that can only be terminated for “cause” – meaning that they are not “at-will” employees.  As a result, an employer can’t simply fire a unionized employee for something that they post on Facebook.  A recent case involving a N.Y.C. Department of Education teacher provides a good example of the protection provided to unionized employees.

According to court documents, Christine Rubino was a teacher at the P.S. 203 in Brooklyn who, after a bad day at work, vented on Facebook: “After today, I am thinking a field trip to the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS!  They are the devil’s spawn!”  Her post was an apparent reference to an incident the previous day where a student at another school drowned during a field trip.  A colleague reported Rubino to administrators and an investigation was conducted.  While Rubino initially said that a friend had written the posts – and her friend initially took the blame – she later recanted.  Rubino was then fired and an arbitrator upheld the termination, however, Rubino appealed and a judge reversed the decision, finding that the DOE’s punishment was too severe.  The DOE challenged the judge’s ruling, but an appellate court upheld it.  While the appellate court found that the comments were “clearly inappropriate,” the court noted that (i) Rubino was just venting to her Facebook friends after a bad day at work, (ii) the comments were not meant for the public, students or parents, and (iii) Rubino eventually admitted to making the comments and that they were improper.  [NYTimes]

Thus, the lesson to be learned here is that unionized employees have significantly more protection when it comes to posting on social media websites that “at-will” employees and that comments that are clearly inappropriate, vile and/or disgusting may not be sufficient “just cause” for termination – at least not in New York City.

If you have additional questions or if you have been fired from your job and would like to be connected with an attorney to discuss whether you were fired unlawfully, please contact us here.

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What is Sex Stereotype Discrimination?

As we noted in yesterday’s post, federal anti-discrimination laws do not prohibit an employer from discriminating on the basis of an employee’s sexual orientation – while New York State and City law do.  Despite Congress’s failure to enact such legislation, creative plaintiff’s attorneys have been advancing “sex stereotype” discrimination as an offshoot of gender discrimination that provides some protection against discrimination for gay and lesbian employees.  In a nutshell, this theory is based on the argument that discrimination against employees that fail to conform to certain gender stereotypes or fail to fit the employer’s mold of how a man or woman should act is gender discrimination.  For example, treating a gay employee differently because he isn’t “masculine enough” or referring to him as “girl” or “bitch” could constitute sex stereotype discrimination.  The same holds true for lesbian employees who are subjected to discrimination or comments because they don’t wear make-up or dresses.

While it is encouraging that the courts are expanding the definition of gender discrimination to provide some protection to gay and lesbian employees and the EEOC has included sex stereotyping within its definition of gender discrimination, all of this would not be necessary if Congress would simply pass legislation prohibiting discrimination in the workplace based on an employee’s sexual orientation.  While such a bill has repeatedly been introduced in Congress, it has not generated enough support to pass.

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What Types of Employment Discrimination Are Illegal in New York City?

One of the more common misconceptions about anti-discrimination and anti-harassment laws is that these laws prevent ALL types of discrimination and harassment in the workplace.  This is simply not true.  Discrimination or harassment is only illegal if it is for one of a number of protected reasons.  New York is an at-will employment state.  That means that, unless you have an employment contract, an employer can terminate your employment for any or no reason, with little or no notice.  If your boss doesn’t like you and wants to fire you, that’s not illegal.  If your boss is giving you a hard time because he or she is jealous of you, that’s not illegal.  It might not be fair, but the law isn’t always fair.

The primary exceptions to New York’s at-will employment doctrine are the federal, state and local laws which prohibit certain types of discrimination and harassment in the workplace.  There are a number of such laws that apply in New York City and the primary ones are summarized below:

  1. Title VII of the Civil Rights Act of 1964: Federal law that prohibits discrimination on the basis of race, color, religion, sex/gender or national origin.  Enforced by the Equal Employment Opportunity Commission.
  2. Americans with Disabilities Act: Federal law that prohibits discrimination on the basis of disability or perceived disability.  Also requires an employer to try to accomodate an individual with a disability.  Enforced by the Equal Employment Opportunity Commission.
  3. Age Discrimination in Employment Act: Federal law that prohibits discrimination against individuals over age 40.  Enforced by the EEOC.
  4. New York State Human Rights Law: State law that prohibits discrimination on the basis of race, color, creed, national origin, sex/gender, age, disability, sexual orientation, marital status, domestic violence victim status, arrest or conviction record, an individual’s predisposing genetic characteristics.  Enforced by the New York State Division of Human Rights.
  5. New York City Human Rights Law: City law that prohibits discrimination on the basis of age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage/citizenship status.  Enforced by the New York City Commission on Human Rights.

As you can see, both the New York State and New York City Human Rights Laws offer much broader protection that federal laws.  For example, while state and city law prohibit discrimination on the basis of sexual orientation, federal law does not.  By the same token, the New York City Human Rights law prohibits discrimination on the basis of your citizenship status (that is, whether you are a citizen of the United States or some other country), while the New York State Human Rights Law does not prohibit this discrimination.

The above list is not meant to be a thorough list as there are a number of other federal, state and local laws which may apply to your employment situation – for example, New York Labor Law § 201-d prohibits discrimination against employees for engaging in “lawful, leisure-time” activities.  As a result, if you have a question about whether you are being subjected to unlawful harassment or discrimination in the workplace, you should speak with an attorney who can advise you of your legal rights.  If you would like to be connected with an attorney that may be able to help you, contact us here.

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