The New York City Commission on Human Rights published legal enforcement guidance defining an individual’s right to wear “natural hair, treated or untreated hairstyles such a locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”   The guidance applies to workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles”:

[W]hile an employer can impose requirements around maintaining a work appropriate appearance, [employers] cannot enforce such policies in a discriminatory manner and/or target specific hair textures or hairstyles. Therefore, a grooming policy to maintain a ‘neat and orderly’ appearance that prohibits locs or cornrows is discriminatory against Black people because it presumes that these hairstyles, which are commonly associated with Black people, are inherently messy or disorderly. This type of policy is also rooted in racially discriminatory stereotypes about Black people, and racial stereotyping is unlawful discrimination under the [New York City Human Rights Law].

A grooming or appearance policy prohibiting natural hair and/or treated/untreated hairstyles to conform to the employer’s expectations “constitutes direct evidence of disparate treatment based on race” in violation of the City’s Human Rights Law. Examples of such policies include:

  • A grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people.
  • A grooming policy requiring employees to alter the state of their hair to conform to the company’s appearance standards, including having to straighten or relax hair (i.e, use of chemicals or heat).
  • A grooming policy banning hair that extends a certain number of inches from the scalp thereby limiting Afros.

Workplace policies prohibiting natural hair and/or treated/untreated hairstyles may not be implemented “to promote a certain corporate image, because of a customer preference, or under the guise of speculative health or safety concerns.” Where there is a legitimate health or safety concern, alternative ways to address the concern (e.g., hair ties, nets, head coverings and alternative safety equipment) must be considered before imposing a ban or restriction on the employee’s hairstyle.

Employers within New York City should review their workplace grooming and appearance policies to ensure compliance with the newly issued legal enforcement guidance.

The New York City Council recently passed two bills affecting New York City employers and their employees. The first bill, Int. No. 1399, passed by the Council on December 6, 2017, amends Chapter 12 of title 20 of the City’s administrative code (colloquially known as the “Fair Workweek Law”) to include a new subchapter 6 to protect employees who seek temporary changes to work schedules for personal events.  Int. No. 1399 entitles New York City employees to request temporary schedule changes twice per calendar year, without retaliation, in certain situations, e.g., caregiver emergency, attendance at a legal proceeding involving subsistence benefits, or safe or sick time under the New York City administrative code.  The bill establishes procedures for employees to request temporary work schedule changes and employer responses.  Exempt from the bill are employees: (i) who are covered by a collective bargaining agreement; (ii) who have been employed for fewer than 120 days; (iii) who work less than 80 hours in the city in a calendar year; and (iv) who work in the theater, film, or television industries.

The second bill, Int. No. 804-A, passed by the Council on December 19, 2017, amends New York City’s Human Rights law to require covered entities engage in a “cooperative dialogue” with individuals who may be entitled to a reasonable accommodation. Covered entitles include employers, providers of public accommodations and providers of housing accommodations.  The term “cooperative dialogue” means the process by which a covered entity and an individual who may be entitled to an accommodation engage in a discussion to identify what reasonable accommodations are available to assist the individual.  The bill requires the covered entity to provide the individual requesting an accommodation a written final determination identifying any accommodation granted or denied.  This determination may only be made after the parties have engaged, or the covered entity has attempted to engage, in the “cooperative dialogue.”

Mayor DeBlasio likely will sign both bills into law by the end of the year.  New York City employers should be prepared to comply with the new requirements.

In Makinen v. City of New York, New York’s Court of Appeals held the New York City Human Rights Law precludes an individual from bringing a claim of disability discrimination based on a mistaken perception of untreated alcoholism.

The question arose in a case brought by police officers against the City of New York and certain individuals alleging discrimination based on the mistaken perception that the plaintiffs were alcoholics. The plaintiffs had been referred to an internal counseling service and directed to undergo treatment even though neither plaintiff had been diagnosed as suffering from alcoholism. The plaintiffs filed a lawsuit in federal court under New York State and City Human Rights Laws and the Americans with Disabilities Act.  The district court held individuals regarded as untreated alcoholics could state a claim under the City Human Rights law because analogous claims were available under state and federal law.  On appeal, the Second Circuit certified the following question to the Court of Appeals: “Whether sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

The Court of Appeals answered the certified question in the affirmative, finding the City Human Rights law was “only open to one reasonable interpretation: the disability of alcoholism shall only apply to a person who (1) is recovering or has recovered, and (2) currently is free of such abuse.”

Since the Restoration Act of 2005, courts have broadly construed the City Human Rights law to provide greater protections for employees than its federal and state counterparts. The Court of Appeals’ decision in Makinen represents a rare finding that the City Human Rights law provides less protection than state and federal law. Even so, employers should remain cognizant of the provisions of the New York State Human Rights Law and the Americans with Disabilities Act, as they already prohibit discrimination based on perceived alcoholism.

On April 20, 2017, in Marshall v. The Rawlings Company LLC, No. 16-5614, slip op., (6th Cir. April 20, 2017) the Sixth Circuit Court of Appeals, which covers federal courts in Kentucky, Michigan, Ohio and Tennessee, for the first time adopted the cat’s paw theory of liability in the context of a retaliation claim brought under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.  The term “cat’s paw” was coined by Judge Richard Posner of the Seventh Circuit and introduced in Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) as a standard by which liability may be imputed to an employer for the discriminatory animus of a biased low-level supervisor.

In Marshall, the company demoted and ultimately terminated the plaintiff-employee after she used FMLA leave to address acute mental health problems.  The employee sued the employer for FMLA retaliation and other employment discrimination claims, alleging two lower-level supervisors exhibited bias against her because she had taken approved medical leave.  The two supervisors allegedly influenced the decision to demote the employee after she returned from leave and the ultimate decision to terminate her employment.  The district court granted summary judgment to the employer and dismissed all claims.

On appeal, a split panel of the Sixth Circuit reversed.  After holding the cat’s paw theory applicable to the employee’s FMLA retaliation claims, the majority determined:

  1. the cat’s paw theory of liability applies even in cases involving multiple layers of supervision between the employee and the ultimate decision-maker;
  2. an employee pursuing a claim of FMLA retaliation under a cat’s paw theory must satisfy the McDonnel Douglas framework and prove that the decision-maker was the cat’s paw of the biased low-level supervisor; and
  3. the honest-belief rule is not applicable in cat’s paw cases because the honesty of the decision-maker’s belief is not relevant to the issue of whether a biased low-level supervisor intentionally manipulated the decision-maker.  Nonetheless, an employer may still protect itself from liability under the cat’s paw theory by showing that the decision-maker conducted an independent investigation and determined that the adverse employment action was justified.

The decision in Marshall emphasizes the importance for employers of conducting reasonable, independent investigations to confirm disciplinary action is justified by objective evidence and clearly documented, particularly where a protected category or activity is implicated.  The ultimate decision-makers should not rely solely upon the recommendation of a subordinate supervisor when making employment related decisions, but rather should probe the subordinate supervisor’s rationale and reach an independent determination of the basis for the adverse action.

Our colleague Laura A. Stutz has a Retail Employment Law Blog post that will be of interest to many of our health industry readers: “EEOC Implements Nationwide Program to Disclose Employer Position Statements and Supporting Documents.”

Following is an excerpt:

The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer position statements to Charging Parties upon request. The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.

Before releasing the supporting documents to the Charging Party, the EEOC will review the employer’s submissions and withhold only information the Commission decides should be considered confidential. The type of information considered confidential by the EEOC includes:

  • Sensitive medical information (except for the Charging Party’s medical information)
  • Social Security Numbers
  • Confidential commercial or confidential financial information
  • Trade secrets
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, e.g., dates of birth in non-age cases, residential addresses, personal telephone numbers, personal email addresses, etc.
  • References to Charges filed with the EEOC by other Charging Parties

Read the full post here.