Kovel Law Chronicle Vol. 4: Let's talk about discrimination.

Daniel Kovel • April 13, 2021

As a solo entrepreneur working in New York City, did you know that you are a part of a small minority of independent contractors in America who are protected from discrimination in your workplace? Initially, statutory protections against employment discrimination applied only to “employees” in New York City. This limitation was used by countless companies as a shield to permit and condone acts of discrimination against solo entrepreneurs. Now, with the 2019 passing of the Local Law 172, which created New York City Human Rights Law Sec. 8-107(23), you are protected from discrimination regardless of whether you are an employee or freelancer. But what is unlawful employment discrimination? Let’s talk about it and how the law works.

New York City Human Rights Law Sec. 8-107(1)(a) provides: “It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service or alienage or citizenship status of any person:
(1) To represent that any employment or position is not available when in fact it is available;
(2) To refuse to hire or employ or to bar or to discharge from employment such person; or
(3) To discriminate against such person in compensation or in terms, conditions or privileges of employment.”

Sec. 8-107(23) further provides: “The protections of this chapter relating to employees apply to interns, freelancers, and independent contractors.”

In its simplest terms, and trust me nothing about employment discrimination is simple, to be protected by this law you will need to demonstrate that you: (a) experienced “adverse employment action” (b) “because of (or at least in part because of)” (c) the company’s discriminatory bias or “animus” against you (d) regarding one or more of your “protected categor(ies)” enumerated in the statutory language above. As you can see, the analysis can be broken down into four-parts, but you need to demonstrate ALL FOUR parts to be protected.

Generally, the most difficult parts to demonstrate are how you know that the person or people who negatively impacted your work have discriminatory bias and how that bias played a role in the adverse employment action you endured. Your coworkers or supervisors DO NOT need to tell you that they don’t like you because of your race, gender identity, sexual orientation, etc., or make a negative comment about the protected category in general. Discriminatory bias can also be demonstrated through actions, even when those actions are insidious. But you still need to demonstrate these parts of the analysis. This is one reason why speaking with legal counsel experienced with handling employment discrimination matters can make all of the difference.

When you sign a service agreement with Company X you sign up for using your skills for Company X’s benefit. You do not sign up for unwelcome comments about your hair, body, skin, religion, gender identity, sexual orientation, or any of the other myriad characteristics that make you, you. After all, what does your sexual orientation, for example, have to do with the fact that you are an expert in your craft? Nothing. Your sexual orientation is unrelated to your ability to get the job done well. When the discriminatory bias of others in the company negatively affects your pay, your self-worth, or your ability to get the job done, the New York City Human Rights Law may kick in to protect you.

Let’s talk about what happened to you at work as soon as possible. If you’re still in the workplace, the next steps we plan together can potentially make the difference in salvaging the relationship. (Although to be clear, I have done this work long enough to know no one can guarantee any result for you!) If you’ve been let go, you may be entitled to compensation for the way in which you were treated and then dismissed.

Let’s make the case for a better workplace for you and others.

October 2, 2024
As companies shift away from hybrid or remote work setups, many employees may face challenges when needing to work from home due to medical or religious reasons. It’s important to know that certain laws may protect your right to request this kind of accommodation. In New York, the NYC Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) both provide protections against discrimination, including for employees who need reasonable accommodations due to disabilities or religious beliefs. Additionally, the Family and Medical Leave Act (FMLA) offers certain rights for those needing medical leave or accommodations. However, whether or not you can secure a work-from-home arrangement depends on various factors, including the nature of your role and your employer's ability to accommodate the request. Understanding the Interactive Process If you need to work from home for medical reasons, your employer is required by law to engage in what’s called an interactive process. This is a cooperative dialogue between you and your employer to explore what reasonable accommodations can be made. The aim is to find a solution that enables you to perform your essential job functions without undue hardship to your employer. For example, if you have a medical condition that makes commuting or working in an office unsafe, the interactive process would involve discussing possible adjustments, which could include working from home. The same applies if you need an accommodation for religious reasons, such as observing religious practices that may conflict with an office schedule. Cooperative Dialogue Is Key Your employer is required to engage in a cooperative dialogue when you request an accommodation. This means they must listen to your needs and work with you to figure out how to best accommodate them. Employers cannot simply deny your request without exploring reasonable alternatives. The dialogue is meant to be an ongoing conversation—if your circumstances change, or if a proposed accommodation isn't working, the conversation should continue until a suitable arrangement is found. Legal Protections You Should Know About Both NYC and NY State human rights laws are some of the most progressive in the country when it comes to employee rights. Here’s a brief overview of what these laws and the FMLA might cover: NYC Human Rights Law (NYCHRL): Employers must provide reasonable accommodations for employees with disabilities or those who need accommodations for religious observances. This could include allowing you to work from home if it doesn’t impose an undue burden on your employer. New York State Human Rights Law (NYSHRL): Similar to the NYC law, this state law requires employers to accommodate employees' religious practices or disabilities, which can include adjustments to work arrangements. FMLA: While the FMLA primarily covers unpaid medical leave, in certain situations, it may support an employee’s request to work from home as a reasonable accommodation if it helps them manage a serious health condition. Is Work From Home a Reasonable Accommodation? Whether working from home is considered a reasonable accommodation depends largely on the nature of your job. If the essential functions of your position can be done remotely without placing undue strain on your employer’s operations, then it’s likely that working from home could be a reasonable accommodation. However, jobs that require physical presence, like certain hands-on roles or customer-facing positions, may not lend themselves to remote work. If you believe your employer has denied your request for an accommodation without proper consideration, you may have grounds for legal action. To better understand your rights or to navigate the process of requesting a work-from-home accommodation, schedule a consultation with Kovel Law PLLC . We can help guide you through the legal steps and ensure your rights are protected.
August 1, 2024
Navigating work leave interference in New York City can be challenging, but understanding your rights can help ensure you're treated fairly. Whether you're an employee or a freelancer, it's crucial to know what protections you have and what steps you can take if you face issues with taking leave. Understanding Work Leave Interference Work leave interference happens when an employer denies or restricts your ability to take legally entitled leave. In NYC, employers are required to follow specific statutes that protect your right to leave for medical or family reasons. Here's what you need to know: 1. Interactive Process Requirement NYC employers cannot deny your medical leave outright. They must engage in an interactive process with you to understand your need for leave and determine a suitable accommodation. This means they should discuss with you any potential adjustments or alternatives that allow you to take your leave without disrupting the workplace unduly. 2. Protected by Statutes Employees in NYC are protected by several statutes, including the Family and Medical Leave Act (FMLA), the NYC Paid Safe and Sick Leave Law, and the Americans with Disabilities Act (ADA). These laws ensure that you can take leave for specific reasons without fear of job loss or retaliation. Reasons covered include: Serious health conditions Maternity or paternity leave Caring for a family member with a serious health condition Domestic violence or sexual assault recovery 3. Types of Leave Covered Only certain types of leave are covered under these protections. For instance, the FMLA allows up to 12 weeks of unpaid leave for eligible employees, while the NYC Paid Safe and Sick Leave Law provides paid leave for specific circumstances. Understanding which types of leave are protected is crucial in asserting your rights. Rights of Freelancers If you're a freelancer, the landscape is slightly different. Freelancers typically don't have the same protections under traditional employment statutes. However, there are still steps you can take: 1. Contractual Agreements Ensure your contracts include clauses that address leave and accommodations. Clear terms in your agreements can provide a framework for requesting leave without jeopardizing your work relationship. 2. NYC Freelance Isn’t Free Act This act provides some protections for freelancers, particularly regarding timely payment and contract enforcement. While it doesn't directly cover leave, it can empower you to negotiate terms that include leave provisions. 3. Seek Legal Advice If you face challenges in taking leave, consulting with a legal professional can help you understand your options and rights. Legal advice can be invaluable in navigating disputes or negotiations with clients. Take Action Understanding your rights is the first step toward ensuring fair treatment. If you believe your right to take leave is being interfered with: Document Everything: Keep records of your communications and any interactions regarding your leave request. Engage in the Interactive Process: Actively participate in discussions with your employer about your leave needs. Seek Legal Help: If necessary, consult with a legal professional to explore your options. By knowing your rights and taking proactive steps, you can ensure that your needs for medical or family leave are respected and accommodated. Schedule a Consultation with Kovel Law PLLC today to discuss your specific situation and ensure your rights are fully protected. Our experienced team is here to help you navigate these complex issues with confidence.
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