Gender Discrimination in New York

New York State, City, and federal law prohibit employers from discriminating on the basis of sex or gender. Gender, or sex, discrimination occurs when an employee is treated unfairly or unequally based on the fact that the employee is a man or woman. The New York City Human Rights Law was amended in 2002 to change the definition of gender to include an individual’s actual or perceived sex. An employer is now prohibited from discriminating on the basis of both biological characteristics and social constructions, or a combination of the two. Gender discrimination is also not limited to members of the opposite sex. Accordingly, a female employee can be harassed by either a male or female supervisor or co-worker. While women are the most common victims of gender discrimination, federal and state anti-discrimination laws apply to both men and women.

An employee must establish several factors before moving forward with a gender-based discrimination claim under both federal and New York law. To demonstrate gender discrimination, an employee must show the following: (1) He or she is a member of a protected class, (2) He or she is qualified for the position, (3) He or she suffered an adverse employment action, and (4) The adverse action took place under conditions giving rise to an inference of discrimination. In a gender-based discrimination action, the first element is already satisfied because gender is a protected characteristic. An employee must establish a case by a preponderance of the evidence. This means the employee’s gender was more likely than not the reason for the discrimination. In order to make such a showing, employees most commonly present statistical evidence of discrimination. Title VII of the Civil Rights Act of 1964 is a federal law protecting employees from discrimination based on gender. While Title VII applies only to employers with at least 15 employees, New York State and City laws cover employers with less than 15 employees. Under both the New York State and City Human Rights Laws, it is unlawful for an employer to make an employment decision on the basis of gender. To qualify as an employer under New York State Human Rights Law, the company must employ at least four employees. However, in New York, there is no requirement for number of employees if the gender-based discrimination claim is for sexual harassment.

Gender discrimination can result in disparate treatment or impact, a hostile work environment, or quid pro quo harassment. Disparate treatment occurs when an employee is treated differently based on his or her gender. A disparate impact may result from a company policy that excludes or otherwise adversely affects employees on the basis of gender. Disparate impact may be unintentional and merely the result of current employment patterns or practices. A hostile work environment is created when unwelcome verbal or physical conduct negatively interferes with an employee’s ability to do his or her job. To determine whether a hostile work environment exists, a court will look at the severity or pervasiveness of the incidents in question. Quid pro quo is generally defined as, “this for that.” In the workplace, quid pro quo harassment occurs when an employers offers an employee something with the expectation of receiving something in return.

An employer’s policies and practices should be equal for men and women throughout every phase of the employment process. At the initial stage of employment, an employer cannot discriminate on the basis of gender when deciding whether or not to hire an applicant. In very rare situations, an employer may use sex as a qualification for a position. In such a case, an employer must establish that gender is a bona fide occupational qualification (BFOQ) of employment. An example of this would be hiring a female actress to play a female character in a movie. In addition, opportunities for promotions should be equal between similarly situated male and female employees. Employers are also prohibited from paying men and women differently for a “substantially similar position.” The Equal Pay Act (EPA) requires men and women in substantially similar positions to be paid equally. This refers not only to salary, but also to benefits, bonuses, stock options and overtime pay.  Under the EPA, the jobs do not have to be identical, just similar in scope and scale. Further, the focus is on the content of the work performed by men and women, instead of the title itself.

There are several subdivisions of gender discrimination, including familial status or pregnancy discrimination. In New York, employers are prohibited from treating employees differently based on their familial status or pregnancy. Familial status refers to whether an employee is married or unmarried, or a parent. Gender discrimination relating to familial status may result from spousal-benefit programs offered by an employer. For example, an employer cannot provide benefits to wives of male employees, but not to husbands of female employees. Pregnancy discrimination is also a subset of gender discrimination because it can unfairly affect female employees. In New York, it is unlawful to refuse to promote or hire a woman because she is currently pregnant or plans to become pregnant.

An employee who has been the victim of gender discrimination has three options when deciding where to file a claim in New York. The claim may be filed with the EEOC, the New York Division of Human Rights (DHR), or the New York City Commission on Human Rights (CHR). While federal and New York State and City law require the same prima facie showing by an employee, they each provide different damages. In a federal suit, the Equal Employment Opportunity Commission (EEOC) investigates discrimination claims to determine whether there is sufficient evidence to support a finding of discrimination. If an employee is successful in a federal suit, he or she is entitled to compensatory and punitive damages. However, federal suits place a limit on punitive damages. On the other hand, New York City Human Rights Law does not place a limit on a punitive damages award. While punitive damages may not be awarded under New York State Human Rights Law, there is no limit for compensatory damages.