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What Employers Need to Know about New York State’s New Discrimination and Harassment Laws: Part 2

On June 19, 2019, the New York Legislature voted to reform New York discrimination law. See NYS Assembly Bill No. A8421.  Although Governor Andrew Cuomo is expected to sign the bill, as of August 7, 2019, it still has not been delivered to him.

This post will focus on changes regarding mandatory arbitration and non-disclosure clauses, the Faragher-Ellerth defense and damages awards.  Below is a summary of some of the provisions in the bill including those covered by our prior post on the expansion of the New York State Human Rights Law (“NYSHRL”), and the effective date of each provision.

What Employers Need to Know about New York State’s New Discrimination and Harassment Laws

In 2018, in response to the #MeToo and #TimesUp movements, New York State enacted laws to provide stronger protections against workplace sexual harassment, including mandating that New York employers have a complaint and investigation process and a sexual harassment policy, and provide their employees with training.

On June 19, 2019, the New York Legislature voted to further reform New York law and to extend protections under the New York State Human Rights Law (“NYSHRL”) to employees of all protected categories from all forms of discriminatory harassment in the workplace.  See NYS Assembly Bill No. A8421.  The bill is expected to be signed by Governor Andrew Cuomo, who supported the measure.

Once enacted, some provisions will take immediate effect while others will be phased in over the course of one year.  Here is the timeline for some of the provisions:

Managing mental health issues at work

This week is UK Mental Health Awareness Week.

Managing mental health in the workplace is an increasing priority for employers, with a recent survey highlighting costs to business of nearly £35 billion a year due to sickness absence, reduced productivity and staff attrition.

The employment law issues associated with poor mental health are complex and include stress, personal injury, disability discrimination, bullying and harassment and unfair dismissal.

Employers can do much to manage the impact of poor mental health on their business, with a focus both on encouraging good mental health in the workplace through awareness, education and appropriate support frameworks, and on how best to manage mental health issues that do arise.

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers manage mental health workplace issues. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Employment and Labor practice group.

Unconscious Bias in the Workplace

April 11, 2019

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In 2019, discrimination is rarely overt or deliberate.  As a society we have come a long way from the ‘No Blacks, No Dogs, No Irish’ signs of decades past.  But conscious intent is not necessary for unlawful discrimination to occur.  We all have unconscious biases based on stereotypes and prejudices.  We may not always realise our biases, but we do need to be aware that biases related to protected characteristics such as age, sex and gender can give rise to unlawful treatment.

In the UK, under the Equality Act 2010, direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  In a discrimination claim, it falls to the Tribunal to consider the reason why the claimant was treated less favourably.  In other words, what was the conscious or subconscious reason for the treatment?  This requires the Tribunal to undertake an enquiry into the mental processes of the alleged discriminator.

As a reminder, the burden of proof lies initially with the claimant, and then shifts to the employer where the claimant shows a ‘prima facie’ case of discrimination.  If the claimant can establish a sufficient difference in treatment then there is likely to be a prima facie case of discrimination.  The alleged discriminator will then need to show a cogent reason for its actions.  Where there is no overt evidence of discrimination, the Employment Tribunal is entitled to draw inferences from the surrounding facts in order to conclude that unlawful

Caught Between a Rock and a Hard Place: #MeToo Movement Creates Challenges for Directors

The #MeToo movement continues to make headlines across the globe, toppling more than 200 powerful U.S. company leaders in entertainment, media, sports and a variety of other industries.  According to EEOC reports, sexual harassment charges have increased by 14% and EEOC-filed lawsuits asserting harassment have increased by 50%.  Larger amounts of cash are being paid to settle harassment suits, and those amounts may be minor compared to the reputational damage of being tried in the court of public opinion.

Directors have long grappled with how to oversee company “culture” and employee behaviors.  Now many boards find themselves wedged between a rock and a hard place, as they struggle to balance the need for swift action when a complaint is made versus the need for appropriate due process rights for the accused.

Boards increasingly are expected to investigate stale and non-actionable claims and off-duty conduct.  They are also expected to treat wrongdoers swiftly and severely.  Employees and stockholders push for transparency in investigations, as boards temper the need for transparency with the risks of defamation, tort or other claims that may be brought by the accused, as well as personal privacy rights when dealing with controversial, off-duty conduct.

The potential unintended consequence of polarizing genders also must be monitored by the board.  Recent research found that two-thirds of male executives hesitate to hold one-on-one meetings with women in more junior positions for fear they could be misconstrued.  This behavior effectively deprives one gender of valuable mentorship and opportunities to interact with

NYC Lactation Policies Going into Effect on March 18, 2019

In October 2018, the New York City Council passed two bills, Int. 879-2018 and Int. 905-2018, to supplement existing federal and state laws concerning lactation accommodation policies in the workplace.  Currently, New York State Labor Law Section 2016-c  mandates employers to provide employees with a reasonable number of breaks; and a private sanitary space, other than a restroom, with a chair and flat surface on which to place the breast pump and other personal items, to express breast milk during the workday.

Effective March 18, 2019, Int. 879-2018 requires NYC employers, with four or more employees, to provide lactation rooms[1] with an electrical outlet, as well as refrigerators, in reasonable proximity to work areas, for the purposes of expressing and storing breast milk.  Those employers who cannot provide a lactation room, as required under the new law because of undue hardship, are required to engage in cooperative dialogue with affected employees to find a reasonable, alternative accommodation.

The second measure, Int. 905-2018 requires employers to “establish, and distribute to all new employees, policies describing lactation room accommodations, including the process by which an employee can request such accommodation”.  The policy shall: (1) specify how an employee can submit a request for a lactation room; (2) require the employer to respond to such a request no later than five (5) business days; (3) provide a procedure to follow when two (2) or more individuals need to use the lactation room at the same time,

Practical Tips to Address Implicit Bias in the Workplace

Over the past half century, employers have made great strides in protecting employees and applicants from conscious bias on the basis of race, gender, age and other protected characteristics.  But what about unconscious – or “implicit” – bias?

What is “Implicit Bias”?

Implicit bias refers to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”  See http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/ .

Each of us has implicit biases, formed based on our experiences and exposures from a variety of sources over time.

What are the Implications of Implicit Bias for the Workplace?

By their nature, implicit biases may cause decision-makers to unconsciously form opinions – and make employment decisions – about applicants and employees in a manner that has a negative effect based on protected characteristics such as race, gender, and age.

Some studies have shown, for example, that when reviewers were given copies of a memorandum with identical errors, but some reviewers were told the writer was African-American and others were told the writer was Caucasian, the average score on a scale from 1 to 5 was nearly a point higher for the Caucasian writer, and the Caucasian writer was described as having “potential” while the African American writer was called “sloppy.”  See http://nextions.com/wp-content/uploads/2017/05/written-in-black-and-white-yellow-paper-series.pdf.

What can Employers do about Implicit Bias?

Unfortunately, implicit biases operate at a subconscious level.  As a result, our implicit biases may run counter to what we consciously believe.  This can make it difficult for decision-makers to realize that their decisions

Hands-Free Laws: Practical Considerations for Employers

As of July 1, 2018, Georgia is now one of 16 states that have banned the use of a hand-held cell phone while driving.  Under the new Hands-Free Georgia Act (House Bill 673), drivers in Georgia may not:

  • Physically hold or support a wireless communication device or stand-alone electronic device with any part of the body;
  • Write, send, or read any text based communications on such devices;
  • Watch a video or movie on such devices; or
  • Record or broadcast a video on such devices.

The Hands-Free Georgia Act does allow drivers to use a single button on a wireless device to make a voice phone call.  Under the new law, drivers may also use a wireless device for voice-to-text communications and for navigation purposes.   Drivers may use a wireless device in a lawfully parked vehicle, but not while the vehicle is at a stop light or in stopped traffic.

Violations of the Hand-Free Georgia Act carry a fine of up to $50 for a first conviction, $100 for a second conviction, and  $150 for a third conviction.  First-time offenders can avoid a fine by appearing in court with a device or receipt for a device that allows for hand-free calls.

Similar hands-free laws have also been enacted in California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and West Virginia, as well as the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.

With the growing use

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