Employment discrimination is rarely easy to prove. In 2019 New York’s Executive Law was amended, making employment discrimination a little easier to prove. It’s still not easy.

Circumstantial evidence is not direct evidence. And circumstantial evidence is the type of evidence usually gathered to prove discrimination at work.

The most common classes of employees who file complaints or discrimination charges include ones for:

  1. Race discrimination
  2. Sex or gender discrimination
  3. Disability or associational discrimination

Bullying by itself is not discriminatory. A victim of bullying must be a member of one or more protected classes. Those classes could be one of the three just mentioned or others. Here’s a video where I talk about why bullying by itself is generally not employment discrimination.

Employment discrimination is almost always hard to prove but it should be easier now.

But if the bullying is because of an employee’s race, sex, gender, sexual orientation, disability, a combination of those or others, it probably is discriminatory.

It is not uncommon to find race discrimination combined with gender or sex discrimination. An employer may attempt to defend discrimination by claiming that it replaced a black female with a black male. But such a defense is no better than one alleging that gender plays no role in employment decisions because the employer continues to employ equal numbers of males and females.

Neither sex nor race nor any other combination of protected classes should be compared in isolation of other protected classes. Black males are unique to black females. Neither males nor females of any ethnicity or race should be compared with others who do not share similarities of intersectional protection.

Similar analyses apply for sex and disability discrimination.

Sometimes employees are subject to associational discrimination.

Subjecting an employee to disciplinary action for their association with a former alcohol or drug addicted person is illegal. Associational discrimination applies to sexual identity, disability or perceived disability status, age and every other protected class of employee.

On August 12, 2020 sexually harassed employees will have up to 3 years to file such claims with New York’s Division of Human Rights instead of the current 1 year to do so.

Other less frequently filed employment discrimination charges or complaints, expanded by the New York State and New York City Human Rights Laws, include:

  • Religion or creed
  • Age – shall not be a factor at all in New York State; shall not be a factor for those over 40 under federal law
  • National origin
  • Sexual orientation
  • Gender identity or expression
  • Military status
  • Predisposing genetic characteristics
  • Familial status
  • Marital status
  • Domestic violence victim status

Some highlights of the 2019 enhanced New York Executive Law include:

  • Elimination of the severe or pervasive requirement unless an employer shows the actions to be “petty slights or trivial inconveniences” which are not actionable
  • No longer necessary for employees to identify some “similarly situated person/employee” who was treated more favorably
  • Unnecessary for employees to complain to employers or to file grievances placing employers on notice
  • Non-employees are now protected from workplace discrimination AND the NYS Human Rights Law now applies to all sizes of employers and not just those with 4 or more employees
  • Punitive damages are now available but only against private employers
  • All employment cases may have attorney’s fees awarded
  • Nondisclosure agreement in all employment discrimination cases can only exist if the complainant or employee prefers same

Employees must keep in mind that under state law, complaints must still be filed within 1 year of an adverse employment action. For employment sexual harassment claims that time period will be extended to 3 years on August 12, 2020.

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