The New York City Council and Mayor DiBlasio continue on their campaign to expand the New York City Human Rights Law to provide new protections for employees who are victims of employer conduct that would not have been considered discriminatory under prior law. The new protected category covers both actual or perceived caregivers. Effective May 6, 2016, New York City employers may not discriminate against caregivers, who are defined to be individuals who provide direct and ongoing care to a minor child or a care recipient. A care recipient is an individual with a disability who is a covered relative or an individual who resides in the caregiver's household and who relies on the caregiver for medical care or to meet daily living needs. Covered relatives include the caregiver's spouse, child, domestic partner, parent, sibling or grandparent, the child or parent of the caregiver's spouse or domestic partner or any other person who is in a familial relationship with the caregiver. It is anticipated that the New York City Commission on Human Rights will be issuing guidance that defines the contours of the familial relationships entitled to protection under this provision. Employers must now be certain that they exclude an applicant or employee's caregiving responsibilities as factors with respect to all decision-making about hiring, promotion, termination and other decisions that have a material effect on the terms and conditions of employment.
The new law does not address any requirement that employers accommodate caregivers. Accordingly, it is not anticipated that an employee who is a caregiver can claim a violation of the law based on an employer's failure to grant a request for time off for the purpose of acting as a caregiver. However, if an employer takes adverse action against an employee because he or she has attended to caretaking obligations, that adverse action would be encompassed. It remains to be determined whether the courts and the Commission will effectively build in to the law an enhanced obligation to furnish accommodation to caregivers. Employers should note that this protection may be considered complementary to protection provided under the New York State Human Rights Law with respect to discrimination based on familial status.
New York City employers should also take note of the guidance recently issued by the New York City Commission on Human Rights concerning another characteristic protected under the City Human Rights Law. The guidance addresses discrimination on the basis of gender identity or gender expression. The prohibited conduct includes, among other things, refusing to use an individual's preferred name or pronoun, refusing to allow individuals to use single-sex facilities, and sex stereotyping in terms of behavior and appearance. A link to the guidance is available here.
On the basis of these new expansions of the Human Rights Law, we recommend that New York City employers revisit their policies, practices, handbooks and training materials to ensure full compliance. We are available to assist in those efforts.
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