Written by Michael Arnold
Sitting here in the Big Apple, the thought of the New York City Council voting to narrow the reach of the New York City Human Rights Law seems roughly equivalent to the thought of a Game of Thrones episode without any violence. It’s just not going to happen.
The New York City Human Rights Law is widely regarded as one of the broadest anti-discrimination laws in the nation, with the New York City Council even going so far as to amend it about a decade ago to make it perfectly clear that courts should interpret it liberally and separately from its state and federal counterparts. The law includes protected categories and imposes obligations on employers not seen in almost any other jurisdiction’s human rights law. Employers can still be held liable despite taking steps to investigate and remedy an internal complaint of discrimination. The law also extends liability to individuals, allows for the recovery of attorneys’ fees and does not cap damage awards, including punitive damage awards.
In just the law few years, the City Council has amended the City law to add an individual’s current unemployment status as a protected class. It now explicitly protects interns, and requires employers to provide reasonable accommodations to employees who are pregnant or who have a medical condition related to pregnancy or childbirth. It also recently expanded an employer’s obligation to accommodate religious requests. And there are efforts underway to expand the statute further, including by prohibiting discrimination based on credit history, certain criminal activity, and because of caregiver status. Given that the Council is an overwhelmingly liberal governing body, we expect the law’s expansion to continue.
Meanwhile, about 900 miles down the road, another human rights law is set to contract. Tennessee’s legislature recently amended the Tennessee Human Rights Act to eliminate individual and aider and abettor liability, cap potential non-pecuniary damages such as pain and suffering, mental anguish and loss of enjoyment of life between $25,000 and $300,000 depending on the size of the employer, and limit the scope of potential retaliation claims. These amendments, which become effective on July 1, are consistent with Tennessee’s business-friendly legislative agenda. In fact, the last time the legislature amended the Human Rights Act to expand its reach was almost 25 years ago. (And no, I am not counting the passage of the Tennessee Healthy Workplace Act in May, the first-anti-bullying law in the nation, because it only extends to public employers and allows employers to escape liability rather easily.)
The different trajectories of these two laws reveal local governing bodies with substantially different legislative priorities and political leanings. Who has the better policy argument of the two is irrelevant for purposes of this post. What is relevant is that both of these jurisdictions, like dozens of other jurisdictions, whether on the federal, state or local level, prohibit employers from discriminating against their workers in some form.
Therefore, employers must take care to familiarize themselves with the human rights laws of each jurisdiction in which they operate to understand what is and is not protected. Their efforts to avoid EEO claims in one jurisdiction may be insufficient in another as would be the case with New York City and Tennessee. Familiarity with the human rights laws allows employers to take the steps necessary to properly stamp out all applicable forms of discrimination, harassment and retaliation in their workplace. In addition, employers would be well-advised to consider the following to limit their exposure:
- Document and communicate performance expectations and issues in a timely manner. Doing so provides employers with the best chance of having a case tossed before trial or, if necessary, at trial. Employers shouldn’t necessarily wait to document and communicate performance issues until an employee’s annual performance review; rather, if feasible, they should do so at the time the performance issue arises. Further, employers should set clearly defined written performance goals for the employee, communicate the same, and then periodically revisit those goals with the employee.
- Create, implement and periodically review discrimination/harassment/retaliation policies. Often times, the best defense is a good offense. Employers should create broad, or broaden their existing, non-discrimination/non-harassment/non-retaliation policies, distribute these policies (at least annually) to new hires and existing employees, require review and acknowledgement of these policies, provide the employee with the opportunity to ask questions regarding these policies, and ensure that these policies include workable complaint mechanisms and investigation procedures.
- Don’t Skimp Out on Training. Having a written policy only goes so far. A key to prevention is training. Employers should develop and administer comprehensive non-discrimination/harassment/retaliation training programs for all employees, managerial, supervisory or otherwise, and ensure that managers and supervisors can recognize, process, and correct discriminatory behavior.
- Consistently enforce your policies. If an employee complains, you must take it seriously and investigate the complaint. And if you discover any wrongdoing, you are well-advised to take the necessary and appropriate corrective action. Failing to enforce your policy consistently not exposes you to a claim, but sends a message that the company is not serious about creating a discrimination-free workplace.
- Consider using arbitration agreements or jury waivers. In the last few years, the law has moved decidedly in management’s favor to allow for the use of arbitration agreements to resolve human rights disputes. Employers can also use jury waivers as an alternative. Trying a case before a judge or arbitrator instead of a jury provides the employer with several advantages: they (mostly) take less time and money, and studies suggest that employers are twice as likely to prevail, and if they lose, the employee typically will likely receive a substantially lower damage award.