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Tag Archives: Civil Rights

Five Things You Need To Know About Marital Status Discrimination In New York

 

Discrimination on the basis of an employee’s marital status is prohibited under Section 296 of the New York State Human Rights Law and under Section 8-107(a) of the New York City Administrative Code. However, “marital status discrimination” might not be what you think it is – and the definition is different depending on whether you are looking at the State statute or the New York City statute.

  1. Under New York State Law, Marital Status Discrimination Is Not…

The decision to be aware of here is Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y. 2d 506 (1980), which went like this: Notwithstanding an employer’s anti-nepotism rule, an employee had worked under the supervision of her husband for approximately four years. When a new manager took over, he terminated the wife’s employment pursuant to the anti-nepotism rule. The New York State Court of Appeals concluded that the employer’s action was not marital status discrimination. How is this possible? Because, reasoned the Court, marital status is a question of whether the employee is married, single, widowed, separated, or divorced. Marital status has nothing to do with whom the employee is married to. The employee in Manhattan Pizza Hut was not fired because she was married, but because she was married to her supervisor.

The Manhattan Pizza Hut logic has carried into situations where a company refused to hire an applicant because her husband was already employed there (Matter of Campbell Plastics v. New York State Human Rights Appeal Board, 81 A.D. 2d 1991 (3rd Dept. 1981)) and to a denial of health insurance to an employee who has comparable coverage under a spouse’s insurance benefit (Police Ass’n v. NYS PERB, 126 A.D. 2d 824 (3rd Dept. 1987)). A corrections officer who married an inmate was discharged, not because of her status as “married,” but because she broke a rule against having a relationship with an inmate. Vega v. Dept. of Correctional Services, 186 A.D. 2d 340 (3rd Dept. 1992). In Cramer v. Newburgh Molded Products, 228 A.D. 2d 541 (2d Dept. 1996) an allegation that a plaintiff was terminated “because she was married to Joseph Cramer” did not survive a motion to dismiss because the termination was based on her being married “to Joseph Cramer” rather than simply on her being married. In McGrath v. Nassau Health Care Corp. , 217 F. Supp. 2d 319 (EDNY 2002), an employee who was sexually harassed did not additionally have a marital status discrimination claim even though her harasser made comments to the effect that she would be “stupid” to marry her fiancé, refused to give her time off to plan her wedding, told her she should not be sleeping with her husband, and tried to dissuade her from going through with the marriage during the wedding.

  1. Marital Status Discrimination Might Be…

In Kipper v. Doron Precision Systems, 194 A.D. 2d 855 (3rd Dept. 1993), an employee’s marital discrimination suit survived dismissal[1] because there was evidence his supervisor told him he was chosen for layoff because he would not experience financial hardships as severe as his married co-workers. The Kipper plaintiff was not laid off because of his involvement or non-involvement with anyone in particular, but because the employer considered him less vulnerable to financial hardship because he was single.[2]

  1. Meanwhile, in New York City…

Contrary to State Law, New York City’s marital status discrimination prohibition is given a “broader meaning than simply married or not married.” Morse v. Fidessa Corp., 165 A.D. 3d 61 (1st Dept. 2018). In direct contrast to the State Court of Appeals’ analysis of State Human Rights Law, the First Department has concluded that the “plain meaning” of marital status includes who the person is married to. In Fidessa, the First Department rejected the Manhattan Pizza Hut definition of “marital status” and specifically found that, under New York City Code, it also encompasses who is married (or not married) to whom.

Likewise, very recently, where a University rescinded its invitation to be part of a new institute following a professor’s divorce from another professor, the NYC marital discrimination suit survived summary judgment.[3] Karayiorgou v. Trustees of Columbia University, 2021 N.Y.  Slip. Op. 31044(U) (NY Co. January 14, 2021). Although factual issues of Karayiorgou remain to be determined, the Court noted strong evidence that the professor had been invited on the strength of her significant contributions to the scientific community, and that un-inviting her based on her ending her relationship with another professor not only constituted marital discrimination, but also smacked of gender bias in that the University’s arguments tried to downplay the plaintiff’s credentials and accomplishments.

  1. What About Other States?

Unfortunately, for the vast majority of employees,[4] federal discrimination law does not specifically prohibit discrimination on the basis of marital status. A survey of the 50 states’ laws on marital discrimination is beyond the scope of this article, so as always we strongly encourage you to consult with a qualified employment attorney in your jurisdiction.

  1. Wait, am I protected or not?

Short answer: Employees in New York City have relatively strong protections against marital status discrimination. Employees in New York State have protections that have been significantly limited by decisional law. Protections in other states depend on state and local laws and regulations. Bottom line, if you believe you have been discriminated against due to your marital status, the first thing you should do is contact an employment lawyer in your jurisdiction to see what kind of protections you might have, and what if anything can be done to protect your rights.

[1] Surviving a motion to dismiss just means that the case isn’t thrown out of court. It doesn’t mean he won.

[2] Notice anything about the breakdown between plaintiffs’ genders in Item #1 versus Item #2? Don’t try to hang your legal hat on it, but it may say something about what these decisions are trying to accomplish.

[3] Like a motion to dismiss, surviving summary judgment just means that the case isn’t thrown out of court. It doesn’t mean she won.

[4] Employees in the Federal Civil Service do have some protections under the Civil Service Reform Act of 1978, which includes marital status as a protected status.

Ask A Worker’s Rights Attorney!

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The Satter Ruhlen Law Firm presents:

 

Ask A Worker’s Rights Attorney!

A webinar for workers.

Thursday, March 11, 2021 at 6:00 pm

 

Do you work in New York?  Do you have a question about your workplace rights?  This is your chance to ask an attorney about it.  One lawyer, six participants, eight minutes per participant (we’ll have a timer!)  Quick answers to your questions about wage and hour violations, discrimination, harassment, whistleblowing, unionizing, non-compete clauses, and other questions like “can they really do that to me?”

CLICK HERE TO REGISTER

Space is limited, so sign up soon!*

Participants will receive a 10% discount on a one-hour consultation with the Satter Ruhlen Law Firm.

Please note that this webinar is for informational purposes and is not to be considered legal advice. Participation in the webinar does not create or imply an attorney-client relationship. If you would like a dedicated one-hour consultation with us, please contact the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

*Registrations will be screened for employees’ protection.

 

Getting Fired in Turbulent Times

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It happens.  When the public is already highly-charged with emotion, employees get fired.  They get fired for good reasons, like getting caught being racist on camera or refusing to wear face masks.  They get fired for bad reasons, like reporting discrimination.  And they get fired for scary reasons, like getting arrested while engaging in peaceful protests. 

This post isn’t about how to not get arrested at a protest.[1]  If you are engaging in civil disobedience against state-sanctioned murder of people of color today, in all likelihood you have already weighed the pros and cons of making your voice heard versus being arrested for blocking traffic or disturbing the peace.  These are the choices every person has to make for themselves. 

This post is about what to do if your employer calls you on the carpet on Monday because they saw you protesting. Or because you got arrested.  Or because they saw your facebook page.

First, unless your employer is a Government agency, remember that you do not have first amendment rights in the workplace.[2]  In most cases, your employer can fire you for any reason or no reason at all. 

That said, pay attention to what the Employer says and does.  Is everyone who got arrested getting fired? Or just a subset, for instance, people of color or people from a particular nation?  Are some people getting lesser penalties, such as suspensions?  How about people who got arrested for counter-protesting? 

If penalties for similar conduct split along racial lines, then start writing.  Take copious notes.  Note what the employer says to you and what the employer’s security guards say while they’re escorting you out.  Write it all down.  It might or might not be evidence of discriminatory intent (let the lawyer sort that out). When you get home, write up your observations in an email and send them to yourself. 

Do’s

  • Do call your Union Rep.  If you’re in a Union, the “for cause” provision in your CBA is the strongest protection you have against politically-motivated terminations.
  • Do apply for unemployment benefits immediately. 
  • Do call your criminal defense attorney and let them know that you may be asking them to communicate with your employment law attorney.  (Your employment law attorney will probably need information such as whether you should be asserting the Fifth Amendment during any investigations by the State Division of Human Rights).
  • Do ask your defense attorney whether the conduct for which you were arrested was actually illegal or not.  In the State of New York, you are not supposed to be fired for engaging in legal off-duty conduct.[3]  So if you were actually not obstructing traffic or disturbing the peace, the employment law attorney needs to know that.
  • Do call an employment law attorney.
  • Do bring the employment law attorney your notes and any paperwork provided to you by the Employer.
  • Do tell the employment law attorney about any prior disciplinary actions taken against you during the course of your employment.  The employment law attorney may be able to neutralize the effect of those disciplines, but can’t do it without all the facts. 
  • Do bring the employment law attorney your notes about any previous discriminatory conduct or conduct that went negative after you reported discrimination.  The attorney needs names, dates, and witnesses for each incident, and will ask you very specific questions about what precisely was said at what point.

and Don’ts 

  • Don’t take anything from the employer’s premises other than your own belongings.  It is tempting to download all your emails and the files you were working on in an attempt to defend yourself.  Don’t do it.  That is the employer’s property and a vindictive employer will come after you for “stealing” it. 
  • Don’t send emails from your work account to your personal account.  Even if you’re not emailing yourself documents, it still “looks” like stealing, and it may give the employer an excuse to subpoena your personal devices.
  • Don’t sign anything.  If someone is trying to pressure you into signing a severance agreement immediately, it may mean that they sense they are subject to liability.
  • Don’t give the employer a reason to fire you.  Don’t talk back, use profanity, or engage in hostile or aggressive conduct.  Stay calm and observe everything around you. 
  • Don’t assume that the employer’s conduct is actionable.  Don’t assume it’s not actionable.  The employment law attorney is the expert.  Let that person figure out the legalities of what the employer did. 
  • Don’t let getting fired stand in the way of your continued activism.  You are doing the hard work that citizens have to do in a democracy.  And the other activists around you may know about jobs that don’t interfere with your work.

If you’re protesting today, your day job should be the last thing on your mind. Your primary concerns should be making your voice heard and staying safe.  But if work gets crazy on Monday morning, the above steps may help you protect your workplace rights.


[1] If you’re out there today protesting, please make sure you know how to identify protest monitors and legal observers, and have a safety plan.

[2] If your employer is a Government agency, you have limited First Amendment rights in the workplace, and only in very limited  circumstances will they protect you from being fired. 

[3] Note the words “supposed to.”  The reality of this prohibition is extremely messy and difficult to prove. 

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