What Does The Law Say?

 

Where is the law regarding sex discrimination in employment in New York found?

 

The law that protects you from sex discrimination can be found on the New York Division of Human Rights website. The law is called the Human Rights Law and is found under Article 15 of the New York State Constitution. It is also referred to as New York Executive Law Section 296 or McKinney's Executive Law Section 296.



To whom does the New York Human Rights Law apply?

 

The New York Human Rights Law covers employers with more than 4 employees. It does not protect individuals employed by their parents, spouse or children, nor does it protect domestic servants or individual contractors.



Under the New York Human Rights Law, what is illegal?

 

It is illegal for an employer to refuse to hire or employ, to bar or to discharge from employment, or to discriminate against an individual in compensation or in terms, conditions or privileges of employment on the basis of sex.



What is sex discrimination?

 

Sex discrimination is the less favorable treatment of women in the workplace simply because they are females. Adverse employment actions, such as termination and failure to promote based on sex, are also considered to be sex discrimination. Black's Law Dictionary defines sex discrimination as "the effect of a law or established practice that confers privileges to one class or that denies privileges to a certain class because of . . . sex."



What constitutes sex or gender discrimination under The New York Human Rights Law?

 

Discrimination in any of the following areas could constitute sex discrimination under New York Human Rights Law: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; or other terms and conditions of employment. Harassment, retaliation, employment decisions based on stereotypes, and denial of employment opportunities because of marriage to or association with a member of a "protected class" may also constitute sex discrimination.



What is an "employee" under this law?

 

An employee is someone with whom the employer has an employment relationship. The existence of an employment relationship is most easily shown through payroll records. The term "employee" excludes individuals who work for their parents, spouse or children. Domestic service workers and independent contractors are also excluded from the definition.



What is an "employer" under this law?

 

An employer under the New York Human Rights Law is one with more than four employees. The law also prohibits labor unions and employment agencies from engaging in acts of discrimination.

 

Are women a "protected class"?

 

Yes, women are a protected class because they fall under the protection of federal, state and local anti-discrimination laws. The New York Human Rights Law, which prohibits discrimination based on sex, protects women as a class.



Is there a federal law about sex discrimination?

 

Title VII of the Civil Rights Act of 1964 protects you from discrimination based on sex. Other federal laws such as the Equal Pay Act of 1963 and the Pregnancy Discrimination Act also provide protection against sex discrimination.



How does the state law compare with federal in terms of coverage?

 

The standards of proof in employment discrimination cases brought under New York Human Rights Law are the same as those established by the United States Supreme Court for cases brought under Title VII of the Civil Rights Act of 1964. The main differences between federal and state coverage are: 1) that your employer must have 15 or more employees in order to file a Title VII claim and only 4 or more for a state claim; 2) that the statute of limitations is three years for a state claim, whereas you must file with the EEOC within 180 days of the most recent incident of discrimination for a federal claim; and 3) that under federal law you can be awarded up to $50,000 in combined compensatory and punitive damages, whereas under New York State law punitive damages are not available and there is no limit on compensatory damages.



Is it ever okay for my employer to treat or impact women differently because of their sex?

 

When sex is a bona fide occupational qualification (BFOQ), it may serve as an exception under the New York Human Rights Law which prohibits discrimination based on sex. In order to establish a sex-based BFOQ, an employer must show that the job itself requires workers of only one sex and that such a requirement is necessary, not merely convenient, to the proper operation of the business in question.



In a nutshell, what must I prove to win my case?

 

While every sex discrimination case is supported by a different set of facts, you must ultimately be able to demonstrate that "but for" your sex, you would not have suffered an adverse employment action. You must be able to show by a preponderance of the evidence that employment decisions were made based on sex, rather than on merit.



What could my employer do to deny my allegations, and how do I respond to its denials?

 

Once you have established the necessary elements to bring a claim of discrimination, the employer can offer any of the following legitimate, non-discriminatory reasons for an adverse employment action: 1) business-motivated downsizing or a widespread reduction in force; 2) the terminated employee's salary is economically justified in relation to the contemporaneous market conditions; 3) the hiring of a better or equally qualified applicant; and 4) the terminated employee has demonstrated poor job performance, disruptive behavior at the job, or poor interviewing skills. Upon the employer's articulation of a nondiscriminatory reason, you must provide evidence which shows that the reasons offered are pretextual (a cover up for discriminatory conduct).



Does it matter when the discrimination occurred?

 

The discrimination must have occurred within the past year in order to file a claim with the help of the New York State Division of Human Rights. If you choose to file a claim without the Division's assistance and with your own attorney in state court, you can do so up to three years after the discrimination has occurred. For equal pay claims, keep in mind that each paycheck you received would constitute an occurrence of discrimination.



What if my employer has fewer than 4 employees?

 

First, be certain that your employer actually has fewer than 4 employees. An employee is someone with whom the employer has an employment relationship. All employees, including part-time and temporary workers, are counted for purposes of determining whether an employer has a sufficient number of employees. The existence of an employment relationship is most easily shown by a person's appearance on the employer's payroll. Determining whether an employer has enough employees to be covered by the law is, ultimately, a legal question.


Unfortunately, your legal recourse under the New York Human Rights Law is limited if your employer has fewer than 4 employees. In enacting the New York Human Rights Law, the state legislature took its lead from Congress and Title VII legislation and set a minimum employee requirement. The minimum employee requirement is intended to protect very small, essentially self-employed individuals with one or two employees, from the costs of expensive discrimination litigation.


If you work for an employer with fewer than 4 employees and feel that you have been discriminated against, you might consider talking with your employer directly, or seek the help of an attorney for other possible legal remedies that may be available outside the realm of the New York Human Rights Law.



Who enforces the law?

 

New York's Human Rights Law is enforced by the New York State Department of Human Rights. See "How To File A Claim."



How do I file a claim of sex discrimination with the New York State Division of Human Rights?

 

To file a complaint with the Division, you must file within one year of the most recent act of discrimination. The Division of Human Rights has offices located throughout the state. You can contact headquarters at (718) 741-8400 to find the office located nearest to you.You may file a complaint in person or by mail. There is no fee to file a claim. See "How To File A Claim."



If I prove my sex discrimination claim, what kind of remedies am I entitled to?

 

Under New York State law, an employee who successfully proves her claim is entitled to compensatory damages, which can include front pay and back pay. No punitive damages are allowed under New York law, but there is no limit to the amount of compensatory damages that may be awarded.

 

 



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