Employers: Be Knowledgeable About New Employee Protections

New York State has a history of providing civil rights protection to various groups deemed to be in protected classes within our society.  Many decades ago, New York State established the Human Rights Law (codified in the Executive Law) that granted protection against discrimination and retaliation for those certain protected class individuals in public accommodations – which accommodations included restaurants, and places of employment.

Over the years, the classes protected by the Human Rights Law/Executive Law have expanded to include race, gender/sex, religion, national origin, disability, and - in conjunction with the Corrections Law - prior conviction.  Additionally, New York State's law is more expansive than Federal Law, as New York State's Human Rights Law also protects those individuals who are gay or lesbian (homosexual).  An employer may not take adverse employment action against an individual who is a member of one of the protected classes under the Human Rights Law purely because of their membership in that protected class.  Of course, employers can still take adverse action – including demotion, suspension, or termination – for non-discriminatory reasons, including economic reasons or because of employee misconduct.

Much as changed in the legal landscape following the United States Supreme Court's 2015 decision in Obergefell v. Hodges, in which the Supreme Court held that marriage is a fundamental right, and extended to gays and lesbians the ability to be legally married.  Further efforts for legal equality have been championed by those who support transgender individuals in our society.  While Federal Law still does not protect those individuals who find themselves in a class of people characterized as gay, lesbian, bisexual or transgender (LGBT), New York State law continues to expand in this area.  Employers should be aware and knowledgeable that in October 2015, New York Governor Andrew Cuomo announced that by Executive Order he has directed the New York State Division of Human Rights to expand regulations under the Human Rights Law/Executive Law to include protections for transgender individuals.  Therefore, employers are included in the panoply of public accommodations who will be prohibited from taking adverse actions against individuals purely because of their transgender status – regardless of the employer's individual feelings concerning the issue of transgender individuals.

Once the regulations are proposed, there will be a 45-day public comment period before the regulations go into effect.  Thereafter, transgender individuals will find themselves with the same protections as other protected classes under Article 15 of the New York State Human Rights Law/Executive Law, Section 290, et seq. – and if they believe that they have been discriminated against in a public accommodation, including their employment, they would have the ability to seek relief under the law either before the New York State Division of Human Rights or in the State Courts.  A report could also be issued to the New York State Department of Labor and/or the New York State Attorney General's Office seeking their assistance.

Relief provided under the law includes any back pay that the employee has lost because of a wrongful adverse employment action, injunctive relief, compensatory damages and emotional distress damages.  Employers should also be aware that an adverse employment action taken against an employee who makes a complaint either internally within the employer organization, or externally to the New York State Division of Human Rights, could face a charge of retaliation or retaliatory animus, which can serve as a separate claim before either the Division of Human Rights or the New York State Courts, and for which the same damages/relief are available under the law.

Therefore, employers should continue to educate themselves concerning all of the regulations and changes in the relevant laws, and should consult with the appropriate individuals whenever necessary (including human resources professionals and legal counsel) to ensure that the employer is not exposed to liability under the Human Rights Law/Executive Law.

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