New York City Human Rights Law

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.

Our colleagues at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the health care industry: “NYC Commission on Human Rights Issues Guidance on Employers’ Obligations Under the City’s Disability Discrimination Laws.”

Following is an excerpt:

The New York City Commission on Human Rights (“Commission”) recently issued a 146-page guide titled “Legal Enforcement Guidance on Discrimination on the Basis of Disability” (“Guidance”) to educate employers and other covered entities on their responsibilities to job applicants and employees with respect to both preventing disability discrimination and accommodating disabilities. The New York City Human Rights Law (“NYCHRL”) defines “disability discrimination” more broadly than does state or federal disability law, and the Guidance is useful in understanding how the Commission will be interpreting and enforcing the law. …

Read the full post here.

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.

As we have previously reported, there has been an uptick of new employment decisions finding in favor of registered medical marijuana users.  In keeping with these decisions, an administrative law judge (“ALJ”) at New York City’s Office of Administrative Trials & Hearings (“OATH”) also issued a report and recommendation, subsequently adopted by the relevant City commissioner, to dismiss a petition against a taxi driver that would have stripped him of his driver license because of his lawful medical marijuana use.

In Taxi & Limousine Comm’n v. W.R., OATH Index. No. 2503/17 (July 14, 2017), adopted, Comm’r Dec. (July 25, 2017), the Taxi & Limousine Commission (“TLC”) filed a petition seeking the revocation of the respondent taxi driver’s TLC Driver License because the driver tested positive for marijuana.  OATH disagreed and recommended that the petition be dismissed, finding that revocation solely because of the driver’s status as a certified medical marijuana patient would violate New York City and State laws.  The TLC adopted the OATH decision.

The rationale was simply stated. Under the New York Compassionate Care Act, certified patients may not be subject to penalty or denied any right or privilege solely for the certified use of medical marijuana.  Because the patient certification is analogous to a prescription, the certified use of marijuana could not constitute an illegal drug use that would serve as the basis to revoke a license.  Further, certified patients are deemed to have a disability under the New York State Human Rights Law.  Because the New York State Human Rights Law prohibits discrimination on the basis of disability, as does the New York City Human Rights Law, the driver had additional protections against revocation of his license.

Key Takeaways

This case serves as another illustration of the intersection of medical marijuana use and disability, and the potential pitfalls for those companies that maintain zero-tolerance drug policies.

New York City employers should be particularly cautious in the use of drug tests and the enforcement of their drug policies. While this decision involves a licensee rather than an employee, the reasoning employed by the ALJ could be equally applied to the employment context.  Additionally, OATH—as an independent administrative tribunal within the City—hears cases brought by any City agency, board, or commission, including the New York City Commission on Human Rights (“CCHR”).  In a case brought by the CCHR, OATH issues a report and recommendation to the City Human Rights Commissioner.  While the Commissioner has discretion to adopt, modify, or reject the report and recommendation, if such rationale were applied in an employment case, there is little doubt that this rationale would be followed by the Commissioner in employment discrimination cases.

Our colleagues Peter M. Panken, Nancy L. Gunzenhauser, and Marc-Joseph Gansah have a post on the Retail Labor and Employment Blog that will be of interest to many of our readers in the health care industry: “Employers Should Care About This: New York City’s Amendment on Caregiver Discrimination.”

Following is an excerpt:

The New York City’s Human Rights law (“NYCHRL”) prohibits employment discrimination against specified protected classes of employees and applicants including:

race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status, partnership status, any lawful source of income, status as a victim of domestic violence or status as a victim of sex offenses or stalking, whether children are, may be or would be residing with a person or conviction or arrest record.

If this list wasn’t long enough, on May 4, 2016, NYCHRL will add “caregivers” to the protected classes including, anyone who provides ongoing medical  or “daily living” care for a minor, any disabled relative or disabled non-relative who lives in the caregiver’s household. …

Read the full post here.