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March, 2018
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March is turning out to be quite a wild ride and we are not even halfway through the month. Among the employment law developments of note, (1) the Second Circuit Court of Appeals (the highest federal court covering New York State, Vermont and Connecticut, can only be overruled by the U.S. Supreme Court) decided that existing federal law prohibits discrimination based on sexual orientation; (2) New York City continues to be actively legislating for the workplace by giving workers the right, under certain circumstances, to have their employers change their work schedule to accommodate the employees' need to attend to personal matters; and (3) the NYC Council is now considering (and will likely pass) legislation to require businesses with 15 or more employees to provide sexual harassment training for all of their employees.
Second Circuit Rules that Title VII Prohibits Sexual Orientation Discrimination

          In a ground-breaking decision, the Second Circuit ruled, in Zarda v. Altitude Express, that discrimination based on sexual orientation violates the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964.
          The Second Circuit stated that although Title VII does not expressly state that sexual orientation is a protected category, sexual orientation discrimination is a subset of sex discrimination. The Court reasoned that this is the case because sexual orientation is a function of sex, meaning that sexual orientation cannot be fully defined without reference to someone's sex. The Court pointed out that the prevailing analysis for whether an employment practice constitutes sex discrimination-whether the employee would have been treated differently "but for" his or her sex-supports the conclusion that sexual orientation discrimination is a subset of sex discrimination. For example, in the case of a woman who is subject to adverse employment action because she is attracted to women, had she been a man who is attracted to women she would not have been subject to the adverse action. Thus, the woman would not have been discriminated against "but for" her sex, and, as a result, sexual orientation discrimination is a subset of sex discrimination.
          This decision has important implications for New York State employers, particularly those located outside of New York City. Previously, while employees located in New York City were protected from sexual orientation discrimination under the New York City Human Rights Law, there were no federal protections against such discrimination. Thus, New York employers located outside of New York City were at almost no risk for liability based on sexual orientation discrimination, and employers in New York City were limited to liability under local law. Following the decision in Zarda, however, employers in New York State who take adverse employment action against an employee based on that employee's sexual orientation expose themselves to liability under Title VII.
          In the future, Zarda may have nationwide implications. The Second Circuit is the second federal court of appeals to rule that Title VII proscribes sexual orientation discrimination, following the Seventh Circuit. The Eleventh Circuit has ruled the opposite way, finding that sexual orientation discrimination is not prohibited by Title VII. It is likely that the U.S. Supreme Court has taken note of this emerging circuit split, and therefore it may choose to rule on the issue the next time the opportunity presents itself.  

New York City Gives Employees Right to Change Work Schedules

          A new law will soon allow employees in New York City to temporarily change their work schedules to attend to certain personal events. Effective July 18 of this year, employers will be required to grant employees' requests for a temporary change to their work schedule at least two times per calendar year for up to one business day per request. An employer may permit an employee to use two business days for one request, in which case it need not grant a second request.
          To request a schedule change, employees must:
  • Notify their employer or direct supervisor as soon as they become aware of their need for a temporary change to their work schedule resulting from a personal event such as the need for a caregiver to provide care to a minor child or the need to attend a legal proceeding or hearing for subsistence benefits;
  • Propose a temporary change to their work schedule (unless they seek leave without pay); and
  • Submit a request in writing - as soon as is practicable, and no later than the second business day after they return to work - indicating the date for which the change was requested and that it was due to their personal event.
          An employer that receives a request for a schedule change must respond "immediately," but need not put this initial response in writing. As soon as is practicable, and no later than 14 days after an employee submits the request in writing, the employer must provide a written response, which must include:
  • Whether the employer will agree to the temporary schedule change in the manner requested by the employee, or will provide the temporary change to the work schedule as leave without pay;
  • If the employer denies the request for a temporary change to the work schedule, an explanation for the denial; and
  • How many requests and how many business days the employee has left in the calendar year after taking into account the employer's decision contained in the written response.
          This obligation to respond in writing is waived if the employee failed to submit his or her written request.

          An employer may deny requests for temporary schedule changes if the employee:
  • Has already exhausted his or her two allotted requests in the calendar year;
  • Has been employed by the employer for fewer than 120 days;
  • Works fewer than 80 hours in the city in a calendar year;
  • Is covered by a valid collective bargaining agreement that waives the aforementioned rights and addresses temporary changes to work schedules.
          Employers that fail to grant requests for temporary schedule changes may be assessed with civil penalties of $500 per violation.
New York City May Require Businesses to Provide Sexual Harassment Training
          New York City is considering a bill that would mandate that all private employers with 15 or more employees must conduct annual anti-sexual harassment training. The training must be "interactive;" i.e., either in person or with audiovisual material approved by the New York City Commission on Human Rights. Additionally, the employer must keep a record of all training-including signed employee acknowledgements-for at least three years.
          Supervisors and managerial employees of covered employers would be required to receive additional training focusing on the specific responsibilities of those employees in the prevention of sexual harassment and retaliation, and measures they may take to appropriately address sexual harassment complaints.
          Penalties for noncompliance range from $100, for a first violation, to $2,000 for each succeeding violation. If enacted, the new law will take effect on September 1, 2018.
          Under related proposed legislation, every private employer would also be required to display a poster with practical examples of sexual harassment, as well as ways to contact federal, state and local authorities with complaints.
          Given New York City's penchant for employee-friendly and progressive legislation, and given the prevalence of sexual harassment as a major societal issue, we expect that this legislation will become law.
If you would like more information regarding any of the issues in this newsletter, the attorneys at Moskowitz & Book would be pleased to help you.
Moskowitz & Book, LLP  | cbook@mb-llp.com  | http://mb-llp.com/

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