How to Handle an Employment Discrimination Case May 16, 2016; 6:00 PM – 9:00 PM

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Hollis Pfitsch

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Jeanine Conley

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HOW TO HANDLE AN EMPLOYMENT

NSTITUTE DISCRIMINATION CASE I

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for May 16, 2016

CLE

Program Chair and Moderator: Louis Pechman, Pechman Law Group PLLC

Faculty: Greg Chiarello, Outten & Golden LLP; Jeanine Conley, Baker Hostetler; Hollis Pfitsch, Law Enforcement Bureau, NYC Commission on Human Rights

NYCLA

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours; 1 Professional Practice/Law Practice Management;. 2 Skills. This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification How to Handle an Employment Discrimination Case May 16, 2016; 6:00 PM to 9:00 PM

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New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Handle an Employment Discrimination Case Monday, May 16, 2016; 6:00 PM to 9:00 PM

Program Chair: Louis Pechman, Esq. Pechman Law Group PLLC

Faculty: Greg Chiarello, Outten & Golden LLP; Jeanine Conley, Baker Hostetler; Hollis Pfitsch, Law Enforcement Bureau, NYC Commission on Human Rights

AGENDA

5:30 PM – 6:00 PM Registration

6:00 PM – 6:10 PM Introduction and Announcements

6:10 PM – 6:50 PM Overview of Agency Practice; Drafting a Complaint/Answer Hollis Pfitsch

6:50 PM – 7:30 PM Discovery Tips from the Plaintiff’s Perspective Greg Chiarello, Esq.

7:30 PM – 7: 40 PM BREAK

7:40 PM – 8:20 PM Discovery Tips from the Defendant’s Perspective Jeanine Conley Esq.

8:20 PM – 8:50 PM Questions and Answers

§1-11 Complaints Generally.

(a) Who may file.

(1) Any person claiming to be aggrieved by an unlawful discriminatory practice may in person, by his or her attorney, or by a representative acting with appropriate legal authority make, sign and file a written verified complaint with the Law Enforcement Bureau in accordance with these rules.

(2) The Law Enforcement Bureau may make, sign, and file a verified complaint alleging that a person has committed an unlawful discriminatory practice.

(b) Form of complaints.

All complaints shall be typewritten, and must be signed and verified by the person making the complaint or, in the case of a Commission- initiated complaint, by the Commission. A complaint initiated by a person other than the Commission shall be signed before a notary public or other person authorized by law to administer oaths. Each complaint shall recite the name of each complainant and respondent in a caption in the following form:

CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS ------x In the Matter of the Complaint of: Verified Complaint

Complainant, Case No. -against- Respondent. ------x

(1) the full name and address of the person or persons making the complaint or such other designation as appropriate. Each such person shall be denominated a complainant. If a complaint is prepared by a complainant’s attorney, the attorney’s name, address, telephone number and facsimile number, if any, shall also appear on the complaint;

(2) the full name and address, where known, of the person or persons alleged to have committed an unlawful discriminatory practice. Each such person shall be denominated a respondent;

(3) a statement of the specific facts constituting the alleged unlawful discriminatory practice. The statement shall contain, to the extent known to the complainant, the exact or approximate date or dates of the alleged discriminatory practices and, if the alleged discriminatory practices are of a continuing nature, the dates between which those continuing acts of discrimination are alleged to have occurred; and the addresses or approximate locations of any places where the acts complained of are alleged to have occurred; and

(4) whether complainant has previously filed any other civil or administrative action alleging an unlawful discriminatory practice with respect to the allegations of discrimination which are the subject of the complaint. In the event of a prior filing, a statement of the title, docket, or similar identifying number, and forum before which such other claim was filed, and a statement of the status or disposition of such other action or proceeding should be made.

(d) What constitutes filing of a complaint or answer. A complaint or answer is filed when it is accepted for filing by the Office of the Docketing Clerk of the Law Enforcement Bureau.

(e) Procedure upon receipt of complaint. The Law Enforcement Bureau shall accept complaints for filing, note the date of filing on the complaint, and assign a complaint number to the complaint. The Law Enforcement Bureau shall thereafter serve by mail a copy of the filed complaint upon each respondent and necessary party and shall advise the respondent of his or her procedural rights and obligations. Commission on Human Rights - Filing a Complaint - The Complaint Process 11/30/15, 10:49 PM

NYC Resources 311 Oﬃce of the Mayor

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Home THE CCHR COMPLAINT PROCESS

About the Commission on A complaint filed with the Commission’s Law Enforcement Bureau (LEB) starts with investigation by LEB. Human Rights Before there is a final order, there are several additional stages involving other governmental entities and NYC Human Rights Law judicial bodies independent from LEB:

Filing a Complaint The Complaint Process

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http://www.nyc.gov/html/cchr/html/complaint/complaint-process.shtml Page 1 of 2 Commission on Human Rights - Filing a Complaint - The Complaint Process 11/30/15, 10:49 PM

http://www.nyc.gov/html/cchr/html/complaint/complaint-process.shtml Page 2 of 2 TM Commission on Human Rights Date Intake #

INTAKE FORM Your Information Name Preferred Title Date of Birth (e.g. Dr., Ms., Mx)

Address City State Zip Cell Phone Other Phone Occupation

Email Race/Ethnicity Primary Language

Family Status:  Married  Domestic partner  Single  Other ______Emergency Contact

Information About the Person or Entity that Took Action Against You Name Company if any Address City State Zip Phone Second Contact Address City State Zip Phone Date of most recent incident of discrimination: Borough where incident occurred:

Have you filed any complaint about this incident in any other place?  Yes  No If yes, check the place or describe below:  EEOC  NY State Division of Human Rights  HUD  HPD  NYCHA  Court  Other: ______My inquiry has to do with: Have you ever had an appointment with (check one, and then fill out the next section depending on the Commission before? your answer)  Yes  No  Housing (Complete Section A and D)  Public Accommodation (store, restaurant, taxi, dentist office, etc.) List when, and the result of your inquiry: (Complete Section B and D) ______ Employment (Complete Section C and D) ______ Discriminatory Harassment (Complete Section D) ______ Bias-based Profiling by Law Enforcement(Complete Section D) ______

SECTION A: Housing (fill outonly if your inquiry involves housing) Type of Housing:  Co-op  Commercial  Rental  Shelter  SRO  Owner-occupied  Condo Approx. Number of Units ______Basis of Discrimination -- Check all that apply:  Race  Color  Presence of Children  Marital Status  Gender  Gender Identity  National Origin  Sexual Orientation  Religion/Creed  Occupation  Lawful Source of Income  Alienage/Citizenship Status  Age  Disability/Failure to Accommodate

100 Gold Street, Suite 4600 | New York, NY 10038 | NYC.gov/HumanRights | @NYCCHR TM Commission on Human Rights

SECTION B: Public Accommodation (fill outonly if your inquiry involves a public accommodation) Basis of Discrimination -- Check all that apply:  Race  Age  Religion/Creed  National Origin  Sexual Orientation  Color  Gender  Gender Identity  Marital Status  Alienage/Citizenship Status  Disability/Failure to Accommodate

SECTION C: Employment (fill outonly if your inquiry involves employment) How many employees does your employer have?  More than 4  More than 15 Are you in a union?  Yes  No Which union? ______Basis of Discrimination -- Check all that apply:  Race  Color  Sexual Orientation  Alienage/Citizenship Status  Gender  Gender Identity  Credit History  Disability/Failure to Accommodate  Pregnancy  Marital Status  National Origin  Arrest/Conviction Record  Age  Religion/Creed  Unemployment Status  Status as victim of domestic violence, sexual violence, or stalking SECTION D: Explain Briefly describe what happened: ______

OFFICE USE ONLY*****OFFICE USE ONLY *****OFFICE USE ONLY Date of Intake Intake Number Attorney Assigned

1. Statute of Limitations deadline: LEB ______EEOC ______2. How did this person hear about the Commission? (check all that apply)  CRB  Social Services  City Agency  Internet  Elected Official  Community Org.  Commissioner  CCHR Website  311  Private Lawyer  Social Media  Legal Services Org.  Press  TV  Radio  Newspaper  Email  Flyer/Brochure  Taxi TV  Other Complainant  Advertisement (Please specify if possible) ______Details: (If Elected Official, City Agency, Commissioner, or Other, write in the name/more information) ______3. Language Access Issues: a. Limited English Proficient?  Yes  No b. Primary Language of Complainant: ______c. In which language was intake conducted? ______d. Method of interpretation:  LEB staff  Phone  Volunteer  Paid Interpreter 4. Were referrals made?  Yes  No Where? ______5. Was a complaint filed?  Yes  No

______Approved by

100 Gold Street, Suite 4600 | New York, NY 10038 | NYC.gov/HumanRights | @NYCCHR TM Commission on Human Rights

NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy: Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22)

The New York City Human Rights Law (“NYCHRL”) prohibits discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based profiling by law enforcement. The NYCHRL, pursuant to the 2005 Civil Rights Restoration Act, must be construed “independently from similar or identical provisions of New York state or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”1 In addition, exemptions to the NYCHRL must be construed “narrowly in order to maximize deterrence of discriminatory conduct.”2 The New York City Commission on Human Rights (the “Commission”) is the City agency charged with enforcing the NYCHRL. Individuals interested in vindicating their rights under the NYCHRL can choose to file a complaint with the Commission’s Law Enforcement Bureau within one (1) year of the discriminatory act or file a complaint in court within three (3) years of the discriminatory act. The NYCHRL prohibits unlawful discrimination in employment, public accommodations, and housing, on the basis of pregnancy or perceived pregnancy, through its prohibitions on discrimination based on gender. It also requires employers to reasonably accommodate the “needs of an employee for her pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job, provided that such employee’s pregnancy, childbirth, or related medical condition is known or should have been known by the employer.”3 This document serves as the Commission’s legal enforcement guidance on the NYCHRL’s protections as they apply to discrimination and reasonable accommodations based on pregnancy, childbirth, or related medical condition. This document is not intended to serve as an exhaustive list of all forms of pregnancy-related discrimination claims under the NYCHRL.

I Legislative Intent

Pregnancy discrimination under the NYCHRL is discrimination based on gender.4 Prior to 2014, however, people who needed accommodations in the workplace relating to pregnancy or for medical conditions related to pregnancy or childbirth had to show that their conditions amounted to a temporary disability. As a result, people with routine pregnancies were regularly denied even the most minor accommodations and forced to work under conditions that compromised their pregnancies. Realizing that the law, as it was often interpreted, excluded individuals with routine pregnancies from requesting and receiving accommodations, on October 2, 2013, the City enacted Local Law 78, the Pregnant Workers Fairness Act, to affirmatively require employers to reasonably accommodate “the needs of an employee for her pregnancy, childbirth, or related medical condition,” without necessitating that the employee’s limitation qualifies as a disability to be protected.5

1 Local Law No. 85 § 1 (2005); see N.Y.C. Admin. Code § 8-130(a) (“The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York state civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.”) 2 Local Law No. 35 (2016); N.Y.C. Admin. Code § 8-130(b). 3 Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22)(a). 4 See Wilcox v. Cornell Univ., 986 F. Supp. 2d 281, 285 (S.D.N.Y. 2013) (noting that “[u]nder Title VII, the NYSHRL, and the NYCHRL, discrimination on the basis of a woman’s pregnancy – including because of any related medical conditions – constitutes discrimination on the basis of sex.”) (internal quotations and citations omitted). 5 N.Y.C. Admin. Code § 8-107(22)(a).

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 1 TM Commission on Human Rights

The legislative history of the Pregnant Workers Fairness Act reflects the growing recognition that expanded protections for employees related to pregnancy, childbirth, and related medical conditions are increasingly necessary. Given the often time-sensitive nature of accommodations needed for pregnancy, childbirth, and related medical conditions, and the relatively short duration of the need, reasonable accommodations related to pregnancy, childbirth, and related medical conditions are intended to be liberally granted so that employees may continue working without compromising their health or safety. With an overwhelming majority of women working late into their pregnancies and an increasing number of families relying on the income of working women as primary breadwinners,6 protecting an individual’s right to maintain stable employment while raising a family is increasingly important to the overall health and well-being of families and children.

II Definitions

These definitions are intended to help people understand the following guidance as well as their rights and responsibilities under the NYCHRL.

Pregnancy: being pregnant, and symptoms of pregnancy, including, without limitation, nausea, morning sickness, dehydration, increased appetite, swelling of extremities, and increased body temperature.

Childbirth: labor or childbirth, whether or not it results in a live birth.

Cooperative Dialogue: the process by which an employer engages with an employee in an open problem-solving conversation based on the employee’s request for an accommodation or the belief that an employee might benefit from an accommodation. A cooperative dialogue involves consideration of a proposed accommodation or alternative accommodation for an employee’s pregnancy, childbirth, or related medical condition while allowing them to perform the essential requisites of the job without creating an undue hardship on the employer.

Related Medical Condition: the state of seeking to become pregnant; any medical condition that is related to or caused by pregnancy or childbirth, including, but not limited to, infertility, gestational diabetes, pregnancy- induced hypertension, preeclampsia, post-partum depression, miscarriage, lactation; and recovery from childbirth, miscarriage, and termination of pregnancy.

III Violations of the NYCHRL’S Prohibitions on Pregnancy Discrimination

A. Disparate Treatment

Pregnancy discrimination is a form of gender-based discrimination under the NYCHRL and is prohibited in employment, housing, and public accommodations. Treating an individual less well than others because of their pregnancy, or perceived pregnancy, is discrimination and a violation of the NYCHRL. To establish disparate treatment under the NYCHRL, an individual must show that the treatment or adverse action was at least in part motivated by discriminatory animus. An individual may demonstrate this through direct evidence of discrimination or indirect evidence that gives rise to an inference of discrimination. Once an individual puts forward indirect evidence of discrimination, the burden shifts to

6 A Better Balance & National Women’s Law Center, “It Shouldn’t Be a Heavy Lift: Fair Treatment for Pregnant Workers,” at 1, 3 (2013), http://www.abetterbalance.org/web/images/stories/ItShouldntBeAHeavyLift.pdf (last visited May 4, 2016).

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 2 TM Commission on Human Rights the covered entity to demonstrate a non-discriminatory justification for the alleged conduct. If the covered entity is able to do so, the burden shifts back to the aggrieved individual to show either that the proffered non-discriminatory motive was pretextual, false, or misleading, or that direct or circumstantial evidence indicates that discrimination motivated the conduct at least in part.

1. Treating Individuals Less Well Because of Their Pregnancy

While adverse treatment may be overt, such as refusing to accept a rental application for an apartment because the applicant is pregnant or firing an employee because they are pregnant, discriminatory conduct on the basis of pregnancy often manifests itself in more subtle and patronizing ways. Such subtle forms of discrimination are actionable under the NYCHRL because they subject pregnant workers to lesser treatment. Whether intentional or unintentional, these actions push pregnant individuals out of the job market, disrupt earnings, hamper economic advancement, and violate the NYCHRL. Gender-based harassment related to pregnancy is a form of discrimination, and may consist of a single incident7 or repeated acts or behavior. Unlawful harassment exists when the behavior creates an environment or culture of sex stereotyping, degradation, humiliation, bias, or objectification. Under the NYCHRL, gender-based harassment related to pregnancy covers a broad range of conduct that causes an individual to be treated less well because of their pregnancy. While the severity or pervasiveness of the harassment is relevant to damages, the existence of differential treatment based on pregnancy is sufficient under the NYCHRL to state a claim of harassment. Harassment may include comments about a pregnant individual’s weight or appearance, their age in relation to their pregnancy, their commitment to their job, or their ability to focus.

Examples of Violations

• An employer who does not hire someone otherwise qualified because they are pregnant.

• A landlord who refuses to accept a housing application from a person based in part on their pregnancy.

• An employer who does not permit an individual to continue to accrue vacation and sick time while on leave to recover from childbirth despite allowing other employees to continue to accrue vacation and sick time while on temporary disability leave.

• An employer who jokes about a pregnant individiual’s weight gain, and who repeatedly responds to that individual’s complaints about the jokes by stating that being pregnant is making the individual overly sensitive and emotional.

2. Policies that Single Out Pregnant Individuals

Any policy that singles out pregnant individuals is unlawful disparate treatment under the NYCHRL unless the covered entity can demonstrate a legitimate non-discriminatory justification for the distinction. Discriminatory policies may be directed at individuals who are currently pregnant, or those believed capable of or likely to become pregnant in the future. Unlawful policies include those that categorically exclude pregnant workers or workers who are capable of becoming pregnant from specific job categories or positions, deny entrance to pregnant individuals to certain public accommodations, or refuse to serve certain food or drinks to pregnant individuals or individuals perceived to be pregnant. While covered entities may attempt to justify certain categorical exclusions based on maternal or fetal safety, using safety as a pretext for discrimination or as a way to reinforce traditional gender norms or stereotypes is unlawful.

7 See Cardenas v. Automatic Meter Reading Corp., OATH 1240/13, Dec. & Order., 2015 WL 7260567, at *8 (Oct. 28, 2015) (citing Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 41 n.30 (App. Div. 2009)).

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 3 TM Commission on Human Rights

Examples of Violations

• An employer refuses to hire pregnant individuals for specific positions or consider them for certain promotions because the positions involve working with hazardous chemicals.

• A restaurant policy that prohibits staff from serving pregnant individuals raw fish or alcohol.

• A blanket exclusion of pregnant individuals from hospital inpatient drug detoxification programs.

• An employer requires pregnant employees to take unpaid leave at a certain month in their pregnancy.

• An employer’s policy that requires medical clearance from pregnant workers to perform certain job duties when medical clearance is not required for other employees.

3. Actions Rooted in Stereotypes or Assumptions Regarding Pregnancy

Judgments and stereotypes about how pregnant individuals should behave, their physical capabilities, and what is or is not healthy for a fetus are pervasive in our society and cannot be used as pretext for unlawful discriminatory decisions in employment, housing, and public accommodations. Adverse treatment of pregnant individuals based on assumptions and stereotypes about the capacity, reliability, or dedication of pregnant workers is similarly unlawful under the NYCHRL. Assumptions about a pregnant worker’s commitment to their job or career, for example, are often rooted in traditional gender norms around mothering and women in the workforce, and may not be used to justify disparate treatment.

Examples of Violations

• An employer decides not to offer a promotion to a pregnant employee who is otherwise qualified based on the assumption that they will likely decide not to return to work after childbirth.

• An employer elects not to assign a pregnant employee to a new project after learning they are pregnant because he is concerned that the worker will be distracted by the pregnancy.

• A bouncer denies a pregnant individual entrance to a bar based on the belief that pregnant individuals should not be going to bars and/or drinking alcohol.

B. Failure to Provide Reasonable Accommodations in Employment Based on Pregnancy, Childbirth, or a Related Medical Condition

The NYCHRL requires an employer to provide reasonable accommodations for an employee’s pregnancy, childbirth, or a related medical condition that will allow the employee to perform the essential requisites of the job, so long as the employer knew or should have known of the employee’s pregnancy, childbirth, or related medical condition.8 Reasonable accommodation is defined as such accommodation that can be made that shall not cause undue hardship “in the conduct of the covered entity’s business.”9 While reasonable accommodations for individuals with disabilities under the NYCHRL have historically included medical conditions related to pregnancy or childbirth, the enactment of the Pregnant Workers Fairness Act obviated the need to request accommodations in employment through the disability framework. Employees can now request accommodations from employers based on pregnancy, childbirth, or related medical condition regardless of whether their medical condition amounts to a disability.10

8 This provision applies only in the context of employment. See N.Y.C. Admin. Code § 8-107(22). 9 See N.Y.C. Admin. Code § 8-102(18) (individuals may still request reasonable accommodations in employment, public accommodations, and housing based on disability under Section 8-107 of the NYCHRL). 10 An employee may also be entitled to reasonable accommodations based on disability if the pregnancy, childbirth, or related medical condition qualifies as a disability under the NYCHRL or other laws.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 4 TM Commission on Human Rights

Under federal law, the Pregnancy Discrimination Act of 1978 requires equal treatment for all workers “similar in their ability or inability to work.”11 Going well beyond federal protections, the NYCHRL protects the rights of pregnant individuals by requiring employers to make reasonable accommodations for pregnancy, childbirth, or related medical condition regardless of whether and to what degree other employees are accommodated.12 Minor or temporary modifications to work schedules, requests for temporary shift reassignments, additional breaks or requests to sit during shifts, and temporary unpaid leave, regardless of whether they are offered to other employees, must be granted absent evidence that such accommodations will pose an undue hardship for the employer or that they will prohibit an employee from satisfying the essential requisites of the employee’s position.13 To establish discrimination on the basis of an employer’s failure to provide a reasonable accommodation, the aggrieved individual must show: (1) they are pregnant, have recently experienced childbirth, or have a medical condition related to pregnancy or childbirth; (2) they requested a reasonable accommodation due to pregnancy, childbirth, or related medical condition, or the employer knew or should have known that they were in need of an accommodation due to pregnancy, childbirth, or related medical condition; and (3) the employer failed to provide a reasonable accommodation.

1. Process for Requesting or Offering Reasonable Accommodations

a. Initiating a Cooperative Dialogue

When an employer learns, either directly or indirectly, that an employee requires an accommodation due to pregnancy, childbirth, or related medical condition, an employer must engage in a cooperative dialogue with the employee. Where an employee has not requested an accommodation, the employer has an affirmative obligation to initiate a cooperative dialogue when the employer: (1) has knowledge that an employee’s performance at work has been affected or that their behavior at work could lead to an adverse employment action; and (2) has a reasonable basis to believe that the issue is related to pregnancy, childbirth, or related medical condition. If an employer approaches an employee to initiate a cooperative dialogue and the employee does not reveal that they are pregnant in that conversation, the employee does not waive their opportunity to reveal their pregnancy and initiate a cooperative dialogue with their employer at a later time. In order to avoid situations in which employers are not sure whether employees are aware of their right to request reasonable accommodations and engage in a cooperative dialogue, the NYCHRL requires employers to provide a notice of rights to all new employees detailing their rights to be free from discrimination based on pregnancy, childbirth, or related medical condition. Such notice may also be conspicuously posted at an employer’s place of business in an area accessible to employees.14

b. Engaging in a Cooperative Dialogue

The purpose of a cooperative dialogue is to ensure that employers understand the individualized needs of their employees and have the opportunity to explore the various ways in which they can meet those needs. Without this type of dialogue, employees and employers may not realize the full universe of available accommodations. The employer need not provide the specific accommodation sought by the employee so long as they propose reasonable alternatives that meet the specific needs of the employee or that specifically address the limitation at issue. A cooperative dialogue involves an employer communicating in good faith with the employee in an open and expeditious manner, particularly given the time-sensitive nature of these requests. The employer may not challenge the validity of the request, but should focus on understanding the need for the

11 42 U.S.C. § 2000e(k). 12 N.Y.C. Admin. Code § 8-107(22). 13 See discussion of accommodations infra p. 8. See discussion on essential requisites of the job infra p. 7. 14 N.Y.C. Admin. Code § 8-107(22)(b); see infra p. 11-12.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 5 TM Commission on Human Rights request and how the request can be accommodated, without making assumptions about what requests are reasonable or unreasonable. The dialogue may be in person, by phone, or via electronic means. In evaluating whether or not an employer has engaged in a cooperative dialogue in good faith with an employee, the Commission will consider various factors, including, without limitation: (1) whether the employer has a written policy for employees about how to request accommodations based on pregnancy, childbirth, or related medical condition; (2) whether the employer responded to the request in a timely manner in light of the urgency of the request; (3) whether the employer attempted to explore the existence and feasibility of alternative accommodations or alternative positions; and (4) whether the employer attempted to obstruct or delay the cooperative dialogue or in any way intimidate or deter the employee from requesting the accommodation.

c. Concluding a Cooperative Dialogue

A cooperative dialogue is ongoing until one of the following occurs: (1) a reasonable accommodation is reached; or (2) the employer reasonably arrives at the conclusion that (i) there is no accommodation available that will not cause an undue hardship to the employer, or (ii) that no accommodation exists that will allow the employee to perform the essential requisites of the job. Once a conclusion is reached, either to offer an accommodation, or that no accommodation can be made, an employer should promptly notify the employee in writing of the determination. Where an accommodation proposed by an employee is immediately agreed to by an employer, the cooperative dialogue will have been successfully completed. Under such circumstances, the cooperative dialogue will consist solely of the employee making the request and the employer granting the accommodation. As an employee’s condition changes over time, an employee may make new requests for accommodations. Each time an employee makes a new request, the employer must engage in a cooperative dialogue with the employee.

d. Requesting Medical Documentation

An employer may not require an employee to provide medical confirmation of pregnancy, childbirth, or related medical condition. An employer may only request medical documentation from an employee when: (1) an employee is requesting time away from work, including for medical appointments, other than the presumptive six to eight week period15 following childbirth for recovery from childbirth,16 and may do so only if the employer requests verification from other employees requesting leave-related accommodations for reasons other than pregnancy, childbirth, or related medical condition; or (2) an employee is requesting to work from home, either on an intermittent basis or a longer-term basis. If an employer believes that the provided documentation is insufficient, the employer must request additional documentation, or, upon the consent of the employee, speak with the health care provider who provided the documentation before denying the request based on insufficient documentation. An employer must always allow an employee to submit sufficient written verification should an employee not want their employer speaking with their medical provider. Outside of the circumstances identified above, an employer may not require medical documentation under the NYCHRL for any other accommodation based on pregnancy, childbirth, or related medical condition.17

15 In accordance with the New York State Insurance Fund, the Commission considers six weeks a presumptive recovery period after vaginal delivery and eight weeks a presumptive recovery period after a caesarian section. See New York State Insurance Fund, “Claims FAQs, How are pregnancy-related disability claims processed,” http://ww3.nysif.com/DisabilityBenefits/ ClaimantServices/ClaimsFAQs.aspx#seventeen (last visited April 27, 2016). 16 An employer may request medical documentation confirming that an employee underwent a caesarian section.See infra p. 8. 17 An employee who is covered by the Family Medical Leave Act of 1993 (“FMLA”) may be required to provide medical documentation for leave taken pursuant to federal law, dependent on the circumstances of the leave request and whether the employer is bound by FMLA. See 29 U.S.C. § 2601 et seq.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 6 TM Commission on Human Rights

2. Failure to Engage in a Cooperative Dialogue

An employer’s failure to engage in a cooperative dialogue with an employee prior to denying a request for accommodation may be tantamount to a failure to accommodate. Without engaging in a cooperative dialogue, an employer will not be able to completely assess the individual needs of the employee. An employer who fails to provide a reasonable accommodation to an employee for their pregnancy, childbirth, or related medical condition without engaging in a cooperative dialogue will not be able to demonstrate that they explored all available options that could have met the employee’s needs and that no reasonable accommodation was available.

3. Employer Defenses

a. Undue Hardship

In determining what constitutes an undue hardship, the NYCHRL specifies the following factors to be considered: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility or the faculties [sic] involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and (4) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.18

b. Essential Requisites of the Job

An employer may raise the affirmative defense that, even with a reasonable accommodation, the employee would not be able to satisfy the essential requisites of their job.19 This means that even when the accommodation does not create an undue hardship for the employer, if it would not enable the employee to perform the basic duties and responsibilities required of the position, the employer may deny the accommodation. In raising this defense, an employer must also show that there are no comparable positions available for which the employee is qualified that would accommodate the employee, and that a lesser position or an unpaid leave of absence is either not acceptable to the employee or would pose an undue hardship.20

c. Burden of Proof

Should an employer believe, after a cooperative dialogue with the employee, that no accommodation can be made without posing an undue hardship or that even with the accommodation the employee could not meet the essential requisites of the job, the burden will be on the employer to demonstrate these defenses by a preponderance of the evidence.

4. Types of Accommodations Based on Pregnancy, Childbirth, or Related Medical Condition

a. Minor Accommodations, Schedule Modifications, and Alternative Positions or Assignments

Such accommodations based on pregnancy, childbirth, or related medical condition will rarely pose an undue hardship on an employer. While many pregnant employees, or employees who have recently

18 N.Y.C. Admin. Code § 8-102(18). 19 Id. at § 8-107(22)(a). 20 See infra p. 8 for a discussion on when an employer may offer an alternative position or unpaid leave as a reasonable accommodation.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 7 TM Commission on Human Rights experienced childbirth or related medical condition, will be able to work without any need for modification, some may require modest and/or temporary accommodations to allow them to feel well and continue to work while maintaining a healthy pregnancy or recovery. Such accommodations include, without limitation:

• minor changes in work schedules; • adjustments to uniform requirements or dress codes; • additional water or snack breaks; • allowing an individual to eat at their work station; • extra bathroom breaks or additional breaks to rest; and • physical modifications to a work station, including the addition of a fan or a seat.

Schedule modifications, job restructuring, and reassignment to a vacant position may also qualify as a reasonable accommodation which will allow an employee to continue working despite a limitation based on pregnancy, childbirth, or a related medical condition. Examples of such accommodations include, without limitation:

• adjustment of start or end time; • reduced or modified work schedule; • desk duty or light duty; and • transfer to an alternative position.

In considering such accommodations, an employer’s first obligation is to accommodate an employee so that they may remain in their current position. When that is not possible, an employer may then consider whether the employee could be reassigned to a vacant position. In considering alternative positions, an employer may consider the qualifications necessary for the position and whether the pay, status, and benefits are equivalent to the employee’s current position. When a comparable position is unavailable, an employer may then explore alternative positions that are not comparable. As a last resort, when no other accommodation can be made, an unpaid leave of absence may be offered as a temporary accommodation.

b. Leave Related to Childbirth

Leave requests to recover from childbirth must be granted absent an undue hardship. Should the leave request present an undue hardship, the employer must consider whether another accommodation, such as a shortened leave time, a reduced or modified work schedule, or working from home, would alleviate the hardship. An employer may only request medical documentation for leave requests beyond six weeks for a vaginal delivery and eight weeks for a caesarian section.21 Once an accommodation of leave has been granted, employers must reinstate workers returning from leave related to childbirth to their original job or to an equivalent position with equivalent pay and comparable seniority, retirement benefits, and other fringe benefits.

c. Accommodations Related to Lactation/Expressing Breast Milk

Lactation is a medical condition related to childbirth and therefore must be accommodated absent an undue hardship. Employers must provide reasonable time for an employee to express breast milk and may not limit the amount of time that an individual can use to express milk unless the employer can demonstrate that the time needed presents an undue hardship to the employer. In addition, absent undue hardship, an employer must provide a clean, sanitary, and private space, other than a bathroom, that is shielded from view and free from public intrusion from coworkers, along with a refrigerator to store breast

21 See supra p. 6, n.16.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 8 TM Commission on Human Rights milk in the workplace. A lactation space must be conveniently located and reasonably near the employee’s work station. An employee who wishes to express milk at their usual work station shall be permitted to do this so long as it does not create an undue hardship for the employer, regardless of whether a coworker, client, or customer expresses discomfort. Where an employer already provides compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.22

d. Accommodations Related to Abortions and Miscarriages

Miscarriages and abortions are directly related to pregnancy and childbirth and can impact an individual’s physical and emotional health. Individuals who have experienced a miscarriage or terminated a pregnancy are entitled to reasonable accommodations from their employers. An individual who has miscarried or terminated a pregnancy may, for example, require a period of unpaid leave to recover or a more flexible schedule for a period of time to account for additional appointments related to the procedure or experience. If the request involves time away from work, an employer may request documentation from a medical or other service provider.

e. Accommodations Related to Fertility Treatments

Fertility treatment directly relates to the state of seeking to become pregnant and therefore employers must provide accommodations for such treatment. Individuals undergoing fertility treatment may need unpaid leave to allow them to attend appointments or a modified or flexible work schedule. If the request involves time away from work to attend appointments, employers may require medical documents of appointments related to fertility. Employers must accommodate these requests absent an undue hardship.

f. Examples

• A pregnant employee requests to be put on light duty during her pregnancy because she is worried that lifting packages over twenty pounds may compromise her pregnancy. In making this request, the employee is initiating the cooperative dialogue. She informs her employer that she is pregnant and does not wish to lift packages over twenty pounds, which is a task she is frequently required to do. The employer concludes the cooperative dialogue by offering the accommodation of putting the employee on light duty for the remainder of the employee’s pregnancy, which the employee accepts. The employer provides the employee with written notice that the accommodation has been granted.

• An employer notices that an employee has been leaving work early and not finishing tasks as quickly as usual. The employer heard a rumor that the employee is pregnant. The employer approaches the employee and initiates a cooperative dialogue. The employer says, specifically, “I have noticed you are struggling to finish your tasks as quickly as usual, is there something I can do to help?” The employee says no. The problem persists, and the employer again approaches the employee and offers assistance, but also notifies the employee that the tasks need to be completed more quickly and something needs to change. The employer tells the employee that he will check in again in a week or so, and reiterates that he will work to accommodate or otherwise support the employee if there is anything going on. The employer never mentions pregnancy specifically because he does not know with any certainty that the employee is pregnant. During the next follow-up conversation, the employer tells the employee that the employee will be written up if the behavior does not improve and again asks if the employee needs assistance and offers to set up a meeting to discuss the issue. The employee declines, and after another week, the employer issues a disciplinary notice.

22 The Fair Labor Standards Act and New York State Labor Law also require employers to provide certain accommodations for employees to express breast milk. See U.S. Dep’t of Labor, Wage and Hour Div., “Fact Sheet #73: Break Time for Nursing Mothers under the FLSA,” https://www.dol.gov/whd/regs/compliance/whdfs73.pdf (last visited May 5, 2016); N.Y. Lab. L. § 206-c.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 9 TM Commission on Human Rights

The employer attempted to engage the employee in a cooperative dialogue because he believed the employee may have needed accommodations based on pregnancy. Despite repeated attempts to engage the employee in a cooperative dialogue, the employee was not responsive. Under these circumstances, the employer was justified in taking disciplinary action.

• All employees must participate in a mandatory meeting every Thursday morning. An employer notices that one employee has been consistently missing the weekly meetings or joining late. The employer approaches the employee, admonishes her, and says if this happens again, she will be written up. The employee is eight weeks pregnant and has been missing the meetings because she has not been feeling well; however, due to the early stages of her pregnancy, she does not share this information with her boss. Two weeks later, after continued lateness, the employee is disciplined. The employee would have been entitled to a reasonable accommodation if she had requested one or if her employer had been on notice of her pregnancy. However, because the employer had no reason to know that the employee was pregnant, the employer was under no obligation to initiate a cooperative dialogue.

• An employee who does data entry at a small company initiates a cooperative dialogue with her employer by asking the employer if she can take unpaid leave every Friday morning to attend medical appointments related to her pregnancy. The employee is the only person who does the data entry at the office. Although the employee’s absence would not create an undue hardship for the employer as the immediate impact on the business would be minimal, the employer is concerned about the long-term cumulative effect of getting behind on the data entry. The employer suggests as an alternative that the employee make up the hours that she needs for the appointment on another day, so that she can attend her appointments but still get the work done. The employee accepts the alternative change in schedule. The employer, through a cooperative dialogue, was able to offer an alternative accommodation that met the employee’s need for time off to attend appointments. The employer provides written notice to the employee that the cooperative dialogue has concluded and the proposed accommodation accepted.

• An employer notices that an individual who is employed as a bus driver has been uncharacteristically behind schedule for the last few weeks. The employer is concerned and approaches the employee to ask what is going on. The employee confides in the employer that she is pregnant and, due to extreme nausea, the employee has to frequently pull over and exit the bus. The employer initiates a cooperative dialogue with the employee by offering to sit down with her and think about whether there are ways to accommodate her during this time. During a cooperative dialogue, the employer and the employee are unable to find an accommodation that would enable the employee to continuously drive the bus and also manage her nausea. The employer considers whether there are any comparable alternative jobs available that would accommodate the employee’s needs. However, the only non-driving positions are at the dispatch center, and they are currently filled. As a last resort, the employer offers the employee unpaid leave until the nausea subsides. The employee accepts and the employer provides notice of the agreed-upon accommodation. The employer offers to notify the employee if and when an alternative position becomes available. After a month, a position opens up at the dispatch center, and the employer notifies the employee that she could be moved temporarily to this position. The employee is no longer feeling nauseous, declines the accommodation, and requests to return to her prior position without an accommodation. The employee is reinstated to her prior position. The employer met his obligation to engage in a cooperative dialogue by considering alternative positions, offering interim unpaid leave, and reaching out to the employee when a vacant position became available.

• An employee has recently returned from leave related to recovery from childbirth. The employee intends to express milk throughout the day, but is concerned about taking unpaid break time. The lactation room is a ten-minute walk from her work station and she is concerned about the additional time she would need to take to get to the lactation room in addition to the time to

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 10 TM Commission on Human Rights

express milk. The employee reaches out to her employer to see if there is space for a lactation room closer to her work station. The employer is unable to identify a closer location for a lactation room. The employer, however, offers to construct a partition between the employee’s work station and the rest of the office to offer her privacy at her own desk if she would like to express milk there which would enable the employee to express milk without taking a break. The employee accepts the offered accommodation and the employer provides notice to the employee that they have concluded the cooperative dialogue and reached an acceptable accommodation. By engaging in the cooperative dialogue, the employer was able to consider an accommodation that the employee had not realized was available.

• An employee notifies an employer that she is five months pregnant and would like to work from home for the remainder of her pregnancy due to her lengthy commute and lower back pain, which is exacerbated by sitting in her car for long periods of time. No employee in her position has ever worked from home before. The employer requests that the employee obtain documentation from a medical provider confirming the need for the accommodation. The following week, the employee produces a note from her doctor saying that she cannot commute for the remainder of her pregnancy due to extreme lower back pain associated with her pregnancy. The employer sits down with the employee and has a conversation about the various tasks and functions the employee performs on a daily basis and determines what the employee will need to be able to access from home in order to do the work. The employer offers the employee the option of working from home for two weeks to determine if the employee will be able to adequately do the job from home. The employer confirms the accommodation in writing. After two weeks, the employer determines that the arrangement is workable because the employee is able to attend meetings remotely and generate the same work product she did in the office. After six weeks, the employee notifies the employer that her lower back pain has subsided and she no longer needs the accommodation. The employer requests a doctor’s note confirming that the employee may return to work. Upon receiving the required medical confirmation, the employee returns to the office the following week.

• An employee has exhibited poor performance for a period of nine months. During that time, the employer has issued two warnings that failure to improve her performance may result in termination. The employee now tells the employer that she is three months pregnant. The employer provides the employee with the employer’s policy on requesting accommodations based on pregnancy and states, “Please let me know if there is anything we can do to help you improve your performance.” The employee does not request an accommodation and her performance does not improve. The employer has no reason to believe that the pattern of poor performance relates to the pregnancy, particularly given that the poor performance predated the pregnancy. After providing the employee with a final warning, the employer terminates the employee for poor performance.

C. Failure to Post or Provide Notice Regarding Pregnancy Protections

The NYCHRL requires that employers provide all employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.23 Notice is effectuated by providing notice to all new employees at the commencement of employment. Employers may also post the notice in their place of business in an area accessible to all employees.24 Failure to comply with the notice requirement violates the NYCHRL. Employers may use the Commission’s Pregnancy and Employment Rights poster – available on the Commission’s website – to provide notice to their employees.

23 N.Y.C. Admin. Code § 8-107(22)(b). 24 Id. at §§ 8-107(22)(b)(i)(1), (2).

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 11 TM Commission on Human Rights

D. Policies or Practices that Have a Disparate Impact on Pregnant Workers

In the context of employment, housing, and public accommodations, when a neutral policy or practice, regardless of intent, has a disparate impact on individuals who are pregnant or perceived to be pregnant, the policy or practice violates the NYCHRL.25 Facially neutral policies or practices can include, without limitation, light duty policies, hiring practices, and housing restrictions. To establish a claim for disparate impact, an individual or the Commission must demonstrate that a covered entity has a policy or practice, or a group of policies or practices, that in effect exclude or disproportionately impact individuals based on pregnancy. For example, a policy that permits workers to be moved to light duty for on the job injuries only would likely have a disparate impact on pregnant workers and constitute a violation of the NYCHRL unless the covered entity can show that the alleged policy or practice bears “a significant relationship to a significant business objective of the covered entity or does not contribute to the disparate impact.”26

E. Retaliation

A covered entity may not retaliate against an individual because they: (1) oppose a discriminatory practice prohibited by the NYCHRL; (2) make a charge or file a complaint with the Commission, the employer, or any other agency; or (3) testify, assist, or participate in an investigation, proceeding, or hearing related to an unlawful practice under NYCHRL.27 In order to establish a prima facie claim for retaliation, an individual must show: (1) that the individual engaged in protected activity; (2) the employer was aware of the activity; (3) that the individual suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.28 In the context of employment, the act of requesting a reasonable accommodation based on pregnancy, childbirth, or related medical condition, or engaging in a cooperative dialogue with an employer based on such request, is protected activity under the NYCHRL. An adverse employment action based on such activity is therefore retaliation under the NYCHRL. The purpose of the retaliation provision is to enable individuals to speak out against discrimination and to freely exercise their rights under the NYCHRL. Freedom from retaliation helps ensure that individuals needing accommodations will request them, and promotes a culture where people are less afraid to exercise their rights. A worker needing an accommodation based on pregnancy, childbirth, or related medical condition must be able to seek assistance and engage in the cooperative dialogue with employers without fear of adverse consequences for making the request.

IV BEST PRACTICES

Employers should develop a written policy to provide information to employees on the cooperative dialogue process as it relates to accommodations for pregnancy, childbirth, or a related medical condition. The policy should include information about how employees may request accommodations and what a cooperative dialogue looks like. Such policies should be distributed to all employees. In addition, any time an employee notifies an employer about their pregnancy, the employer should provide that employee with a copy of the policy and remind them of the availability of accommodations.

25 Id. at § 8-107(17). 26 Id. at § 8-107(17)(a)(2). 27 Id. at § 8-107(7). 28 Id.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 12 TM Commission on Human Rights

Employers should also document all efforts to initiate, engage in, and conclude the cooperative dialogue with an employee. Employers should keep a log for each employee in which they document the following information:

• When and under what circumstances the cooperative dialogue was initiated; • What information, if any, was provided to the employer throughout the cooperative dialogue; • The employee’s stated or observed limitation; • The types of accommodations that were requested by the employee or suggested by the employer during the cooperative dialogue; • The dates of each subsequent conversation relating to the accommodation between the employer and the employee; • Whether or not an accommodation was ultimately identified and, if not, justification, for denying an accommodation; • A copy of the notice provided to the employee that the cooperative dialogue had ended.

Employers may be required to share this information with the Commission in the course of an investigation. Prompt responses to Commission requests for information or documents may help avoid a Commission-initiated investigation into employment practices. Employers should make all efforts to keep communications regarding requests for reasonable accommodations and all circumstances surrounding an employee’s pregnancy, childbirth, or related medical condition confidential.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 13 TM NYC COMMISSION ON HUMAN RIGHTS Commission on Legal Enforcement Guidance on the Human Rights Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102(23) The New York City Human Rights Law (“NYCHRL”) prohibits discrimination in BILL DE BLASIO Mayor employment, public accommodations, and housing. It also prohibits discriminatory CARMELYN P. MALALIS harassment and bias-based profiling by law enforcement. The NYCHRL, pursuant to Commissioner/Chair the 2005 Civil Rights Restoration Act, must be construed “independently from similar or identical provisions of New York state or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the

100 Gold Street, Suite 4600 City’s Human Rights law cannot fall, rather than a ceiling above which the local law New York, NY 10038 cannot rise.”1

nyc.gov/humanrights The New York City Commission on Human Rights (the “Commission”) is the City @NYCCHR agency charged with enforcing the NYCHRL. Individuals interested in vindicating their rights under the NYCHRL can choose to file a complaint with the Commission’s Law Enforcement Bureau within one (1) year of the discriminatory act or file a complaint in New York State Supreme Court within three (3) years of the discriminatory act. The NYCHRL prohibits unlawful discrimination in public accommodations, housing and employment on the basis of gender. Gender is defined as one’s “actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”2 This document serves as the Commission’s legal enforcement guidance of the NYCHRL’s protections as they apply to discrimination based on gender, and gender identity and gender expression, which constitute gender discrimination under the NYCHRL. This document is not intended to serve as an exhaustive list of all forms of gender-based discrimination claims under the NYCHRL.

] I. LEGISLATIVE INTENT In 2002, the New York City Council passed the Transgender Rights Bill to expand the scope of the gender-based protections guaranteed under the NYCHRL, and ensure protection for people whose “gender and self-image do not fully accord with the legal sex assigned to them at birth.”3 The City’s intent in amending the law was to make explicit that the law prohibits discrimination against transgender people.4 The legislative history reflects that transgender people face frequent and severe discrimination such that protection from discrimination is “very often a matter of life and death.”5 Recognizing the profoundly debilitating impact of gender-based discrimination on transgender and other gender non-conforming individuals, the amendment makes clear that “gender-based discrimination – including, but not limited to, discrimination based on an individual’s actual or perceived sex, and discrimination

1 Local Law No. 85 (2005); see also N.Y.C. Admin. Code § 8-130 (“The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed.”) 2 Local Law No. 3 (2002); N.Y.C Admin. Code § 8-102(23). 3 Id. 4 Report of the Governmental Affairs Division, Committee on General Welfare, Intro. No. 24, to amend the administrative code of the city of New York in relation to gender-based discrimination (April 24, 2002) accessible through http://legistar.council.nyc.gov/Legislation.aspx. 5 Id.

12/21/2015 1 TM based on an individual’s gender identity, self-image, appearance, behavior, or expression – constitutes a violation of the City’s Human Rights Law.”6 Commission on Human Rights ] II. DEFINITIONS These definitions are intended to help people understand the following guidance as well as their rights and responsibilities under the NYCHRL. BILL DE BLASIO Mayor Cisgender: CARMELYN P. MALALIS an adjective denoting or relating to a person whose self-identity conforms with Commissioner/Chair the gender that corresponds to their biological sex, i.e, someone who is not transgender. Gender Identity: 100 Gold Street, Suite 4600 one’s internal deeply-held sense of one’s gender which may be the same or New York, NY 10038 different from one’s sex assigned at birth. One’s gender identity may be male,

nyc.gov/humanrights female, neither or both, e.g., non-binary. Everyone has a gender identity. Gender @NYCCHR identity is distinct from sexual orientation. Gender Expression: the representation of gender as expressed through, for example, one’s name, choice of pronouns, clothing, haircut, behavior, voice, or body characteristics. Gender expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities. Gender: an individual’s actual or perceived sex, gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned at birth. Gender Non-Conforming: an adjective sometimes used to describe someone whose gender expression differs from traditional gender-based stereotypes. Not all gender non-conforming people are transgender. Conversely, not all transgender people are gender non- conforming. Intersex: a term used to refer to a person whose reproductive or sexual anatomy and/or chromosomal pattern does not fit typical definitions of male or female. There are many different medical diagnoses or conditions that an intersex person may have. Sex: a combination of bodily characteristics including chromosomes, hormones, internal and external reproductive organs, secondary sex characteristics, and gender identity. Most people are assigned male or female at birth based on the appearance of their external genitalia. Transgender: an adjective used to describe someone whose gender identity or expression is not typically associated with the sex assigned at birth. It can be used to describe people with a broad range of identity or expression. Someone who identifies their gender as androgynous, gender queer, non-binary, gender non-conforming, MTF (male to female), or FTM (female to male) may also consider themselves to be transgender.

6 Id.

12/21/2015 2 TM ] III. VIOLATIONS OF THE NEW YORK CITY HUMAN RIGHTS LAW’S PROHIBITIONS ON GENDER DISCRIMINATION Commission on Human Rights Gender discrimination under the NYCHRL includes discrimination on the basis of gender identity, gender expression, and transgender status.7 The definition of gender also encompasses discrimination against someone for being intersex. Under the

BILL DE BLASIO NYCHRL, gender discrimination can be based on one’s perceived or actual gender Mayor identity, which may or may not conform to one’s sex assigned at birth, or on the ways CARMELYN P. MALALIS in which one expresses gender, such as through appearance or communication style. Commissioner/Chair Gender discrimination is prohibited in employment, housing, public accommodations, discriminatory harassment, and bias-based profiling by police and exists whenever there is disparate treatment of an individual on account of gender. When an 8 100 Gold Street, Suite 4600 individual is treated “less well than others on account of their gender,” that is gender New York, NY 10038 discrimination under the NYCHRL. nyc.gov/humanrights Harassment motivated by gender is a form of discrimination. Gender-based @NYCCHR harassment can be a single or isolated incident of disparate treatment or repeated acts or behavior. Disparate treatment can manifest in harassment when the incident or behavior creates an environment or reflects or fosters a culture or atmosphere of sex stereotyping, degradation, humiliation, bias, or objectification. Under the NYCHRL, gender-based harassment covers a broad range of conduct and occurs generally when an individual is treated less well on account of their gender. While the severity or pervasiveness of the harassment is relevant to damages, the existence of differential treatment based on gender is sufficient under the NYCHRL to constitute a claim of harassment. Gender-based harassment can include unwanted sexual advances or requests for sexual favors; however, the harassment does not have to be sexual in nature. For example, refusal to use a transgender employee’s preferred name, pronoun, or title may constitute unlawful gender-based harassment. Comments, unwanted touching, gestures, jokes, or pictures that target an individual based on gender constitute gender-based harassment. Unlawful gender-based discrimination is prohibited in the following areas: Employment: It is unlawful to refuse to hire, promote, or fire an individual because of a person’s actual or perceived gender, including actual or perceived status as a transgender person. It is also unlawful to set different terms and conditions of employment because of an employee’s gender. Examples of terms and conditions of employment include work assignments, employee benefits, and keeping the workplace free from harassment. Public Accommodations: It is unlawful for providers of public accommodations, their employees, or their agents to deny any person, or communicate intent to deny, the services, advantages, facilities or privileges of a public accommodation directly or indirectly because of their actual or perceived gender, including actual or perceived status as a transgender person. Simply put, it is unlawful to deny any person full and equal enjoyment of a public accommodation because of gender. Housing: It is unlawful to refuse to sell, rent, or lease housing to someone because of their actual or perceived gender, including actual or perceived status as a transgender

7 N.Y.C. Admin. Code § 8-102(23). 8 Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39 (App. Div. 2009)

12/21/2015 3 TM person. It is unlawful to withhold from any person full and equal enjoyment of a housing accommodation because of their gender.9 Commission on Human Rights 1. Failing To Use an Individual’s Preferred Name or Pronoun The NYCHRL requires employers and covered entities to use an individual’s preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned BILL DE BLASIO at birth, anatomy, gender, medical history, appearance, or the sex indicated on the Mayor individual’s identification. CARMELYN P. MALALIS Commissioner/Chair Most individuals and many transgender people use female or male pronouns and titles. Some transgender and gender non-conforming people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir.10 Many transgender and gender non-conforming people choose to use a different name than 100 Gold Street, Suite 4600 New York, NY 10038 the one they were given at birth. All people, including employees, tenants, customers, and participants in programs, nyc.gov/humanrights @NYCCHR have the right to use their preferred name regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government). Asking someone their preferred gender pronoun and preferred name is not a violation of the NYCHRL. Examples of Violations a. Intentional or repeated refusal to use an individual’s preferred name, pronoun or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear which pronouns and title she uses. b. Refusal to use an individual’s preferred name, pronoun, or title because they do not conform to gender stereotypes. For example, calling a woman “Mr.” because her appearance is aligned with traditional gender-based stereotypes of masculinity. c. Conditioning an individual’s use of their preferred name on obtaining a court- ordered name change or providing identification in that name. For example, a covered entity may not refuse to call a transgender woman her preferred name, Jane, because her identification says that her first name is John.11 d. Requiring an individual to provide information about their medical history or proof of having undergone particular medical procedures in order to use their preferred name, pronoun, or title. Covered entities may avoid violations of the NYCHRL by creating a policy of asking everyone what their preferred gender pronoun is so that no individual is singled out for such questions and by updating their systems to allow all individuals to self-identify their names and genders. They should not limit the options for identification to male and female only.

9 Protections on the basis of gender under the NYCHRL are subject to the same limitations as all other protected categories. See N.Y.C. Admin. Code §§ 8-102(5); 8-107(5)(a)(4)(1),(2); 8-107(4)(b). 10 Ze and hir are popular gender-free pronouns preferred by some transgender and/or gender non- conforming individuals. 11 Where covered entities regularly request a form of identification from members of the public for a legitimate business reason, requesting a form of identification from transgender and/or gender non- conforming individuals is not unlawful. Just as is the case for many cisgender individuals, many transgender and/or gender non-conforming individuals’ appearances may not appear the same as what is represented on their photo identification. Covered entities may use a form of identification to corroborate an individual’s identification, but may not subject a transgender or gender non-conforming individual to a higher level of scrutiny than any other person presenting a form of identification.

12/21/2015 4 TM 2. Refusing To Allow Individuals To Utilize Single-Sex Facilities and Programs Consistent with Their Gender Commission on Human Rights The NYCHRL requires that individuals be permitted to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification. The law doesnot require BILL DE BLASIO Mayor entities to make existing bathrooms all-gender or construct additional restrooms. CARMELYN P. MALALIS Covered entities that have single-occupancy restrooms should make clear that they Commissioner/Chair can be used by people of all genders.12 Some people, including, for example, customers, other program participants, tenants, or employees, may object to sharing a facility or participating in a program with a 100 Gold Street, Suite 4600 transgender or gender non-conforming person. Such objections are not a lawful New York, NY 10038 reason to deny access to that transgender or gender non-conforming individual. nyc.gov/humanrights Examples of Violations @NYCCHR a. Prohibiting an individual from using a particular program or facility because they do not conform to sex stereotypes. For example, a women’s shelter may not turn away a woman because she looks too masculine nor may a men’s shelter deny service to a man because he does not look masculine enough. b. Prohibiting a transgender or gender non-conforming person from using the single-sex program or facility consistent with their gender identity or expression. For example, it is an unlawful discriminatory practice to prohibit a transgender woman from using the women’s bathroom. c. Requiring a transgender or gender non-conforming individual to provide proof of their gender in order to access the appropriate single-sex program or facility. d. Requiring an individual to provide identification with a particular sex or gender marker in order to access the single-sex program or facility corresponding to their gender. e. Barring someone from a program or facility out of concern that a transgender or gender non-conforming person will make others uncomfortable. f. Forcing a transgender or gender non-conforming person to use the single- occupancy restroom. Covered entities may avoid violations of the NYCHRL, by, wherever possible, providing single-occupancy restrooms and providing private space within multi-user facilities for anyone who has privacy concerns. Covered entities may accommodate an individual’s request to use a single-occupancy restroom because of their gender. For example, an individual who is non-binary or who is in the process of transitioning may wish to use a single-occupancy restroom. As noted above, however, it is unlawful to require an individual to use a single-occupancy restroom because they are transgender or gender non-conforming. Covered entities should create policies to ensure that all individuals are allowed to access the single-sex facility consistent with their gender identity or expression and train all employees, but particularly all managers and employees who have contact with members of the public, on compliance with the policy, and their obligation under the NYCHRL to provide non- discriminatory access to single-sex facilities including for transgender and gender non-conforming people. Covered entities should post a sign in all single-sex facilities that states, “Under New York City Law, all individuals have the right to use the single- sex facility consistent with their gender identity or expression.” Covered entities may

12 A single-occupancy restroom is a room with a single toilet, walls, a sink, and a door.

12/21/2015 5 TM adopt policies or codes of conduct for single-sex facilities delineating acceptable behavior for the use of the facilities that are not themselves discriminatory and do not Commission on Human Rights single out transgender or gender non-conforming people. An individual’s assessment of their own safety should be a primary consideration. Covered entities should offer opportunities for people to come to them if they have safety concerns and should establish a corresponding safety plan if needed. For BILL DE BLASIO Mayor example, if a transgender resident requests assignment to a facility corresponding CARMELYN P. MALALIS to their sex assigned at birth instead of a placement corresponding to their gender Commissioner/Chair identity, that request should be honored. 3. Sex Stereotyping Discrimination based on an individual’s failure to conform to sex stereotypes is a 100 Gold Street, Suite 4600 New York, NY 10038 form of gender discrimination under the NYCHRL. Sex stereotypes are widely-held over-simplified expectations about how people of a particular sex or gender should nyc.gov/humanrights be or how they should act. They include expectations of how an individual represents @NYCCHR or communicates gender to others, such as behavior, clothing, hairstyle, activities, voice, mannerisms, or body characteristics. Sex stereotypes also relate to the roles or behaviors assigned to those who identify as male or female. Covered entities may not require individuals to conform to stereotypical norms of masculinity or femininity. The law also recognizes that unlawful sex stereotyping often manifests itself as anti- gay epithets, or attributing a particular sexual orientation to individuals who do not conform to sex stereotypes. Examples of Violations a. Using anti-gay epithets when speaking to or about an individual based on their non-conformity with gender norms. b. Overlooking a female employee for a promotion because her behavior does not conform to the employer’s notion of how a female should behave at work. c. Enforcing a policy in which men may not wear jewelry or make-up at work. Covered entities may avoid violations of the NYCHRL by training all staff on creating and maintaining an environment free from sex stereotyping. 4. Imposing Different Uniforms or Grooming Standards Based on Sex or Gender Under the NYCHRL, employers and covered entities may not require dress codes or uniforms, or apply grooming or appearance standards, that impose different requirements for individuals based on sex or gender. Under federal law, differing standards based on sex or gender are permitted so long as they do not impose an undue burden, an evidentiary standard that the plaintiff must prove. Differences that have been perceived by courts to be slight or that do not impose significantly greater burdens based on gender have generally been permitted; for example, courts have upheld requirements that female bartenders wear makeup, or that male servers wear ties.13 While some courts have found uniforms and grooming standards that perpetuate sex stereotypes impermissible in extreme cases – for example, where an

13 See, e.g., Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004) aff’d on reh’g, 444 F.3d 1104 (9th Cir. 2006) (granting summary judgment for defendant because plaintiff failed to produce evidence that requiring female bartenders to wear makeup placed greater burden on women than on men); Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977) (finding that a requirement that male employees wear ties was not sex discrimination under Title VII because it was not overly burdensome to its employees); Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977) (holding that “employer grooming codes requiring different hair lengths for men and women bear such a negligible relation to the purposes of Title VII that we cannot conclude they were a target of the Act.”); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2d Cir. 1976) (holding that requiring short hair on men and not on women does not violate Title VII).

12/21/2015 6 TM employer required only female employers to wear an overtly sexualized uniform14 – courts have generally upheld such standards when courts deem them innocuous or Commission on Human Rights based in long-held, traditional gender norms. In keeping with the requirements of the Restoration Act of 2005, the NYCHRL looks to these cases as a floor rather than a ceiling, and to that end, does not require a showing that different uniform or grooming standards create an unequal burden or BILL DE BLASIO Mayor disparate effect to qualify as gender discrimination. Under the NYCHRL, the fact that CARMELYN P. MALALIS the grooming standard or dress code differentiates based on gender is sufficient for Commissioner/Chair it to be considered discriminatory, even if perceived by some as harmless. Holding individuals to different grooming or uniform standards based on gender serves no legitimate non-discriminatory purpose and reinforces a culture of sex stereotypes and accepted cultural norms based on gender expression and identity. 100 Gold Street, Suite 4600 New York, NY 10038 The variability of expressions associated with gender and gender norms contrast nyc.gov/humanrights vastly across culture, age, community, personality, style, and sense of self. @NYCCHR Placing the burden on individuals to justify their gender identity or expression and demonstrate why a particular distinction makes them uncomfortable or does not conform to their gender expression would serve to reinforce the traditional notion of gender that our law has disavowed. Differing standards based on gender will always be rooted in gender norms and stereotypes, even when they may be perceived by some as innocuous. When an individual is treated differently because of their gender and required to conform to a specific standard assigned to their gender, that is gender discrimination regardless of intent, and that is not permissible under the NYCHRL. Employers and covered entities are entitled to enforce a dress code, or require specific grooming or appearance standards; however it must be done without imposing restrictions or requirements specific to gender or sex. It will not be a defense that an employer or covered entity is catering to the preferences of their customers or clients. Examples of Violations a. Maintaining grooming and appearance standards that apply differently to individuals who identify as men or women or which have gender-based distinctions. For example, requiring different uniforms for men and women, or requiring that female bartenders wear makeup. b. Requiring employees of one gender to wear a uniform specific to that gender. c. Permitting only individuals who identify as women to wear jewelry or requiring only individuals who identify as male to have short hair. Requiring all servers, for example, to always have long hair tied back in a ponytail or away from their face is not a violation unless it is applied unequally based on gender. d. Permitting female but not male residents at a drug treatment facility to wear wigs and high heels. e. Requiring all men to wear ties in order to dine at a restaurant. Covered entities may avoid violations of the NYCHRL by creating gender-neutral dress codes and grooming standards. For example, a covered entity may require individuals to either wear their hair short or pulled back from the face or require that workers must wear either a pantsuit or a skirt suit. Covered entities may provide different uniform options that are culturally typically male and typically female. For example, an employer that provides uniform shirts may provide a shirt that is more typical of a woman’s blouse and another that is looser fitting in a style more typical of

14 EEOC v. Sage Realty Corp., 507 F. Supp. 599, 608-09 (S.D.N.Y. 1981), supplementing decision, 521 F. Supp. 263 (S.D.N.Y. 1981).

12/21/2015 7 TM a man’s button down shirt. It would be unlawful, however, to require an employee to wear one style over another. Commission on Human Rights 5. Providing Employee Beneﬁts that Discriminate Based on Gender The NYCHRL prohibits covered entities from offering employee benefits that discriminate on the basis of gender. To comply with the law, entities must offer BILL DE BLASIO benefits equally to all employees regardless of gender. Employee benefit plans that Mayor are covered by, and in compliance with, the Employee Retirement Income Security CARMELYN P. MALALIS Act and applicable federal anti-discrimination laws are also in compliance with the Commissioner/Chair NYCHRL.15 It is unlawful for an employer to provide health benefit plans that deny or exclude services on the basis of gender. To be non-discriminatory with respect to gender, 100 Gold Street, Suite 4600 New York, NY 10038 health benefit plans must cover transgender care, also known as transition-related care or gender-affirming care. In no case, however, will an employer that has nyc.gov/humanrights selected a non-discriminatory plan be liable for the denial of coverage of a particular @NYCCHR medical procedure by an insurance company, even when that denial may constitute discrimination on the basis of gender. Transgender care is medically necessary, effective, and even life-saving for many transgender people. Transgender care includes a range of treatments, including, for example, hormone replacement therapy, voice training, or surgery. What a particular individual will seek differs according to their needs and overall health. Some insurance plans categorically exclude transgender care from coverage. Federal law requires self-insured plans governed by the Affordable Care Act to cover medically necessary transition-related care and New York State law requires fully-insured New York plans to do the same.16 Examples of Violations a. Employers offering health benefits to the opposite-sex spouses of employees, but not same-sex spouses. b. Employers offering health benefits that do not cover care when an individual’s sex assigned at birth or gender otherwise recorded in a medical record or insurance plan is different from the one to which health services are ordinarily or exclusively available. For example, offering benefits that cover prostate cancer screening for cisgender men but not for transgender women. c. Employers offering health benefits that categorically exclude from coverage, or limit coverage for, health services related to gender transition. d. Employers offering any other employee benefits that discriminate on the basis of gender. For example, offering a stipend for child care to female but not male employees. Covered entities may avoid violations under the NYCHRL by reviewing their existing health benefit plans, and if they do not already, provide an option that includes comprehensive coverage for transgender people. Employers should take care to select plans that follow recognized professional standards or medical care for transgender individuals, for example, the standards of care of the World Professional Association for Transgender Health. Because there are few health care providers currently performing certain transition-related and/or gender-affirming care, employers should consider selecting plans that do not prohibit, place limits on, or have significantly higher co-pays or low reimbursements rates for out-of-network care.

15 N.Y.C. Admin. Code § 8-107(e)(i). 16 Patient Protection & Affordable Care Act, 42 U.S.C. § 18116 (2010); N.Y. Dep’t. of Fin. Serv., Insurance Circular Letter No. 7 on Health Insurance Coverage for the Treatment of Gender Dysphoria (Dec. 2014). The Commission does not have jurisdiction to enforce these laws.

12/21/2015 8 TM 6. Considering Gender When Evaluating Requests for Accommodations

Commission on The NYCHRL prohibits covered entities from considering gender when evaluating Human Rights requests for accommodations for disabilities, or other requests for changes to the terms and conditions of one’s employment, participation in a program, or use of a public accommodation, which may include additional medical or personal leave or schedule changes.17 When a covered entity grants leave or time off of work to BILL DE BLASIO Mayor employees for medical or health reasons, it shall treat leave requests to address CARMELYN P. MALALIS medical or health care needs related to an individual’s gender identity in the same Commissioner/Chair manner as requests for all other medical conditions. Covered entities shall provide reasonable accommodations to individuals undergoing gender transition, including medical leave for medical and counseling appointments, surgery and recovery from gender affirming procedures, surgeries and treatments as they would for any other 100 Gold Street, Suite 4600 New York, NY 10038 medical condition.

nyc.gov/humanrights Examples of Violations @NYCCHR a. An employer who has a policy of routinely granting unpaid medical leave upon request to individuals who have been working for the employer for over a year, who refuses to honor that policy when the request is made by a transgender individual. b. When an employer or covered entity permits a reasonable accommodation for a cisgender woman seeking reconstructive breast surgery deemed medically necessary but refuses that same accommodation when requested by a transgender woman undergoing the same medically necessary surgery. c. Requesting medical documentation to verify leave time from transgender employees or participants, but not cisgender employees or participants. d. Determining the retention and accrual of benefits, such as seniority, retirement, and pension rights, during personal or medical leave periods for employees based on gender. Employers may avoid violations under the NYCHRL by creating internal procedures to evaluate all requests for accommodations in a fair and non-discriminatory manner. 7. Engaging in Discriminatory Harassment The NYCHRL prohibits discriminatory harassment or violence motivated by a person’s actual or perceived gender identity or expression that attempts to interfere with, or actually interferes with, the free exercise of a legal right. Discriminatory harassment includes violence, the threat of violence, a pattern of threatening verbal harassment, the use of force, intimidation or coercion, defacing or damaging real property and cyberbullying. For example, a tenant assaulting or threatening to assault a neighbor because of her gender expression, in addition to committing a crime, is also violating the NYCHRL. 8. Engaging in Retaliation The NYCHRL prohibits retaliation against an individual for opposing discrimination or requesting a reasonable accommodation for a disability based on gender identity or expression. Opposing discrimination includes, but is not limited to, making an internal complaint about discrimination, making an external complaint of discrimination to the Commission or another government agency, or participating in an investigation of

17 While it is not the focus of this guidance, transgender individuals may have additional rights under Section 8-107(15) of the NYCHRL, including the right to reasonable accommodations. Some transgender people have a diagnosis of gender dysphoria, which is a disability within the meaning of the NYCHRL. As with any disability, covered entities must make reasonable accommodations for individuals with gender dysphoria.

12/21/2015 9 TM discrimination. An action taken against an individual that is reasonably likely to deter them from engaging in such activities is considered unlawful retaliation. The action Commission on Human Rights need not rise to the level of a final action or a materially adverse change to the terms and conditions of employment, housing, or participation in a program to be retaliatory under the NYCHRL. When an individual opposes what they believe in good faith to be unlawful discrimination, it is unlawful to retaliate against the individual even if the BILL DE BLASIO conduct they opposed is not ultimately determined to violate the NYCHRL. Mayor CARMELYN P. MALALIS Examples of Violations Commissioner/Chair a. Repeatedly assigning an individual to work the least desirable shifts contrary to the normal practice of rotating those shifts equally among staff after the individual makes an internal complaint of discrimination. 100 Gold Street, Suite 4600 New York, NY 10038 b. Demoting or firing an individual who has filed a complaint with the Commission or has filed their own case in civil court. nyc.gov/humanrights @NYCCHR c. Failing to grant accommodations for an individual otherwise not required under the law but that are routinely provided by the employer after the individual was interviewed as a witness in a coworker’s case alleging discrimination. d. Refusing to advance a program participant to the next stage of the program despite their successful completion of the previous stage because the participant raised concerns about unequal treatment. Covered entities may avoid violations of the NYCHRL by implementing internal anti- discrimination policies to educate employees, tenants, and program participants of their rights and obligations under the NYCHRL with respect to gender identity and expression and regularly train staff on these issues. Covered entities should create procedures for employees, tenants, and program participants to internally report violations of the law without fear of adverse action and train those in supervisory capacities on how to handle those claims when they witness discrimination or instances are reported to them by subordinates. Covered entities that engage with the public should implement a policy for interacting with the public in a respectful, non-discriminatory manner consistent with the NYCHRL, respecting gender diversity, and ensuring that members of the public do not face discrimination, including with respect to single-sex programs and facilities. ] IV. PENALTIES IN ADMINISTRATIVE ACTIONS The Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct. The amount of a civil penalty will be guided by the following factors, among others: r The severity of the particular violation; r The existence of previous or subsequent violations; r The employer’s size, considering both the total number of employees and its revenue; and r The employer’s actual or constructive knowledge of the NYCHRL. These penalties are in addition to the other remedies available to people who successfully resolve or prevail on claims under the NYCHRL, including, but not limited to, back and front pay, along with other compensatory and punitive damages. The Commission may consider the lack of an adequate anti-discrimination policy as a factor in determining liability, assessing damages, and mandating certain affirmative remedies.

12/21/2015 10 GENDER IDENTITY/GENDER EXPRESSION MYTHS VS. FACTS

1 MYTH FACT 5 MYTH FACT The New York City The New York City The New York City If an individual identifies Human Rights Law Human Rights Law Human Rights Law as a man, he is not was amended in 2015 (NYCHRL) was amended allows men to enter the permitted to use the to include protections in 2002. women’s bathroom and women’s room. for gender identity and vice versa. gender expression. The NYCHRL allows individuals to use the bathroom that is The de Blasio administration released legal enforcement consistent with their gender identity. guidance in 2015 to help New Yorkers gain a better understanding of their rights and responsibilities under the NYCHRL. 6 MYTH FACT 2 Allowing transgender Crime statistics show MYTH FACT people to use facilities that transgender people consistent with are disproportionately If a man pretends to Since the law was their gender identity more likely to be be a woman so he can passed in 2002, threatens women the victims, not the use the women’s room there have been no and children, and will perpetrators, of violence (or vice versa) in order documented cases of increase the likelihood in bathrooms, locker to harass members of men in NYC pretending of violence and crime in rooms, etc. the opposite sex, there to be women in order those facilities. is no legal recourse to harass women in the for the victims of the bathroom. There is no evidence to suggest that allowing individuals harassment. access to the facilities that align with their gender identity increases incidence of violence. It ostracizes transgender That being said, harassment, stalking, and other types of people if we credit the misperception that they are a threat. criminal activity are still illegal; permitting individuals to Worse, it takes focus away from the work we can do to keep use the bathroom consistent with their gender identity and everyone safe. expression does not change that. If someone of any gender commits a crime in a single-sex facility, they are subject to prosecution, as well as possible charges under the NYCHRL. 7 MYTH FACT 3 Businesses cannot The NYCHRL does not adopt their own policies prevent businesses MYTH FACT on use of their facilities. from adopting policies Transgender women are Gender identity is not delineating acceptable not “real” women, and based on one’s sex behavior for the use of transgender men are not assigned at birth. their facilities, provided “real” men. that the policies are not If someone’s gender identity is female, then that person is discriminatory. a woman – regardless of what her birth sex was – and she For instance, if the business is concerned about peeping, it should be treated as a woman. Similarly, if someone’s gender can institute a “No Loitering” rule. Other examples include identity is male, then that person is a man, and he should be making all single-occupancy restrooms unisex; or requiring treated as a man. that restrooms are locked and anyone needing to use them needs to see the receptionist for a key.

4 MYTH FACT 8 The gender identity/ The NYCHRL protects MYTH FACT gender expression all people against If the clients/students/ An organization cannot statutes of the NYC discrimination based customers at an agency/ engage in discriminatory Human Rights Law on gender identity and school/business object practices under protect only transgender expression. to transgender people any circumstance. individuals. using the facility of their Customer preference This includes transgender and gender non-conforming choice, the agency/ or discomfort is never people, as well as cisgender (non-transgender) individuals. school/business should a justification for For example, a restaurant owner may not require only female change its policies to discrimination. bartenders to wear make-up or only male servers to wear ties. satisfy those objecting. The NYCHRL also protects people from discrimination based on gender stereotypes or norms, regardless of their gender For example, hospitals may not agree to replace a nurse identity or expression. For example, a cisgender man may of a specific race with someone of a different race. A not be refused entrance to the men’s locker room because he restaurant owner that refuses to hire a Muslim greeter, appears effeminate or has long hair. because some patrons claim it makes them uncomfortable, violates the NYCHRL. Agreeing to the unfounded fears and misconceptions around transgender inclusive policies is unlawful and perpetuates discrimination. The Commission can help covered entities educate their clients and customers about how inclusion creates a safer space for everyone.

;4 nyc.gov/humanrights or call 311 Commission on @NYCCHR Human Rights

FACT SHEET Executive Order on Single-Sex Facilities in City Government Buildings and Areas

WHAT: Executive Order 16 requires all City agencies to ensure that City employees and members of the public have access to single-sex facilities such as bathrooms and locker rooms in City buildings and areas consistent with their gender identity or expression without being required to show identification, medical documentation, or any other form of proof or verification of gender. Since 2002, the New York City Human Rights Law has protected people against discrimination on the basis of gender identity and expression.

The Executive Order requires City agencies to:

• Post the new single-sex facility policy in conspicuous locations for employees and members of the public to see within three months; • Train managers on the policy within one year and frontline staff within two years; • Update agency Equal Employment Opportunity (EEO) plans to incorporate training requirements within three months; and • Report steps taken to comply with today’s executive order to the Department of Citywide Administrative Services (DCAS) pursuant to EEO reporting requirements.

The Executive Order follows recent legal enforcement guidance issued by the NYC Commission on Human Rights, which clarifies that denying access to bathroom or other single-sex facilities based on gender identity or expression is a violation of the NYC Human Rights Law.

WHO: The Executive Order applies to anyone who uses buildings or areas owned or operated by the City of New York, including city employees and members of the public.

WHERE: The Executive Order applies to all facilities owned or operated by the City, including City agency offices, public parks, pools, playgrounds, certain cultural institutions, and recreation centers. It does NOT require City agencies to build or construct new single-stall bathroom or locker room facilities or to create new signage in existing bathroom or locker room facilities.

WHY: Transgender and gender nonconforming individuals are disproportionately vulnerable to harassment and violence, especially when seeking to access bathrooms and other single-sex facilities. This Executive Order ensures safe access to single-sex facilities in buildings or spaces owned or operated by the City of New York for transgender and gender nonconforming individuals and sets an example for cities and states across the U.S. on protecting the rights and freedoms of transgender and gender nonconforming individuals.

HOW: The New York City Commission on Human Rights and the Department of Citywide Administrative Services (DCAS) will work with all City agencies and others to ensure compliance with the Executive Order.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR ;4 Commission on Human Rights Revised 03/11/2016

NYC Commission on Human Rights Legal Enforcement Guidance on the Fair Chance Act, Local Law No. 63 (2015)

The New York City Human Rights Law (the “NYCHRL”) prohibits discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based profiling by law enforcement. The NYCHRL, pursuant to the 2005 Civil Rights Restoration Act, must be construed “independently from similar or identical provisions of New York state or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”1 The New York City Commission on Human Rights (the “Commission”) is the City agency charged with enforcing the NYCHRL. Individuals interested in vindicating their rights under the NYCHRL can choose to file a complaint with the Commission’s Law Enforcement Bureau within one (1) year of the discriminatory act or file a complaint in New York State Supreme Court within three (3) years of the discriminatory act. The NYCHRL covers employers with four or more employees. The Fair Chance Act (“FCA”), effective October 27, 2015, amends the NYCHRL by making it an unlawful discriminatory practice for most employers, labor organizations, and employment agencies to inquire about or consider the criminal history of job applicants until after extending conditional offers of employment. If an employer wishes to withdraw its offer, it must give the applicant a copy of its inquiry into and analysis of the applicant’s conviction history, along with at least three business days to respond.

I Legislative Intent

The FCA reflects the City’s view that job seekers must be judged on their merits before their mistakes. The FCA is intended to level the playing field so that New Yorkers who are part of the approximately 70 million adults residing in the United States who have been arrested or convicted of a crime2 “can be considered for a position among other equally qualified candidates,” and “not overlooked during the hiring process simply because they have to check a box.”3 Even though New York Correction Law Article 23-A (“Article 23-A”) has long protected people with criminal records from employment discrimination,4 the City determined that such discrimination still occurred when applicants were asked about their records before completing the hiring process because many employers were not weighing the factors laid out in Article 23-A.5 For that reason, the FCA prohibits any discussion or consideration of an applicant’s criminal history until after a conditional offer of employment. Certain positions are exempt from the FCA, as described in Section VII of this Guidance. While the FCA does not require employers to hire candidates whose convictions are directly related to a job or pose an unreasonable risk, it ensures that individuals with criminal histories are considered

1 Local Law No. 85 (2005). “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably worded to provisions of this title have been so construed.” N.Y.C. Admin. Code § 8-130. 2 Gov’tl Affairs Division of the N.Y. City Council, Committee Report on Int. No. 318-A, S. 2015-5, at 2 (June 9, 2015) (“Civil Rights Committee’s Report”), available at http://legistar.council.nyc.gov/View.ashx?M=F&ID=3815856&GUID=59D912BA-68B5-429C- BF39-118EB4DFAAF5. 3 Testimony of Gale A. Brewer, Manhattan Borough President on Int. No. 318 to Prohibit Employment Discrimination Based on One’s Arrest Record or Criminal Conviction at 2 (Dec. 3, 2014) (emphasis in original), available at http://legistar.council.nyc.gov/ View.ashx?M=F&ID=3410802&GUID=7D143B7E-C532-41EF-9A97-04FD17854ED7. 4 Violating Article 23-A is an unlawful discriminatory practice under the NYCHRL. N.Y.C. Admin. Code § 8-107(10). 5 Transcript of the Minutes of the Committee on Civil Rights at 10 (Dec. 3, 2014) (statement of Council Member Jumaane Williams), available at http://legistar.council.nyc.gov/View.ashx?M=F&ID=3410594&GUID=5FE2433E-1A95-4FAA-AECC- D60D4016F3FB.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 1 ;4 Commission on Human Rights Revised 03/11/2016 based on their qualifications before their conviction histories. If an employer is interested enough to offer someone a job, it can more carefully consider whether or not that person’s criminal history makes her or him unsuitable for the position. If the employer wishes to nevertheless withdraw its offer, it must first give the applicant a meaningful opportunity to respond before finalizing its decision.

II Deﬁnitions

The FCA applies to both licensure and employment, although this Guidance focuses on employment. The term “applicant,” as used in this Guidance, refers to both potential and current employees. The FCA applies to all decisions that affect the terms and conditions of employment, including hiring, termination, transfers, and promotions; where this Guidance describes the “hiring process,” it includes the process for making all of these employment decisions. Any time the FCA or this Guidance requires notices and disclosures to be printed or in writing, they may also be communicated by email, if such method of communication is mutually agreed on in advance by the employer and the applicant. For the purpose of this Guidance, the following key terms are defined as follows:

Article 23-A Analysis The evaluation process mandated by New York Correction Law Article 23-A.

Article 23-A Factors The factors employers must consider concerning applicants’ criminal conviction history under Section 753 of New York Correction Law Article 23-A.

Conditional Offer of Employment An offer of employment that can only be revoked based on:

1. The results of a criminal background check;

2. The results of a medical exam in situations in which such exams are permitted by the Americans with Disabilities Act;6 or

3. Other information the employer could not have reasonably known before the conditional offer if, based on the information, the employer would not have made the offer and the employer can show the information is material to job performance.

For temporary help firms, a conditional offer is the offer to be placed in a pool of applicants from which the applicant may be sent to temporary positions.

Conviction History A previous conviction of a crime, either a felony or misdemeanor under New York law,7 or a crime as defined by the law of another state.

Criminal Background Check When an employer, orally or in writing, either:

1. Asks an applicant whether or not she or he has a criminal record; or

6 The Americans with Disabilities Act (“ADA”) prohibits employers from conducting medical exams until after a conditional offer of employment. 42 U.S.C. § 12112(d)(3). To comply with the FCA and the ADA, employers may condition an offer of employment on the results of a criminal background check and then, after the criminal background check, a medical examination 7 A misdemeanor is an offense, other than a “traffic infraction,” for which a person may be incarcerated for more than 15 days and less than one year. N.Y. Pen. L. § 10.00(4). A felony is an offense for which a person may be incarcerated for more than one year. Id. § 10.00(5).

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2. Searches public records, including through a third party, such as a consumer reporting agency (“CRA”), for an applicant’s criminal history.

Criminal History A previous record of criminal convictions or non-convictions or a currently pending criminal case.

Fair Chance Process The post-conditional offer process mandated by the FCA, as outlined in Section V of this Guidance.

Inquiry Any question, whether made in writing or orally, asked for the purpose of obtaining an applicant’s criminal history, including, without limitation, questions in a job interview about an applicant’s criminal history; and any search for an applicant’s criminal history, including through the services of a third party, such as a consumer reporting agency.

Non-convictions A criminal action, not currently pending, that was concluded in one of the following ways:

1. Termination in favor of the individual, as defined by New York Criminal Procedure Law (“CPL”) § 160.50, even if not sealed;

2. Adjudication as a youthful offender, as defined by CPL § 720.35, even if not sealed;

3. Conviction of a non-criminal violation that has been sealed under CPL § 160.55; or

4. Convictions that have been sealed under CPL § 160.58.

Statement Any words, whether made in writing or orally, for the purpose of obtaining an applicant’s criminal history, including, without limitation, stating that a background check is required for a position.

Temporary Help Firms A business which recruits, hires, and assigns its own employees to perform work at or services for other organizations, to support or supplement the other organization’s workforce, or to provide assistance in special work situations such as, without limitation, employee absences, skill shortages, seasonal workloads, or special assignments or projects.8

III Per Se Violations of the FCA

As of October 27, 2015, the following acts are separate, chargeable violations of the NYCHRL:

1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”

2. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows.

8 N.Y. Lab. L. § 916(5).

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3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance. Each of the following is a separate, chargeable violation of the NYCHRL:

a) Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history;

b) Failing to share with the applicant a written copy of the employer’s Article 23-A analysis;

c) Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond.

4. Taking an adverse employment action because of an applicant’s non-conviction.9

IV The Criminal Background Check Process Under the FCA

The FCA does not change what criminal history information employers may consider. Instead, it changes when employers may consider this information. No employer may seek, obtain, or base an adverse employment action on a non-conviction.10 No employer may seek, obtain, or base an adverse employment action on a criminal conviction until after extending a conditional offer of employment. After a conditional offer of employment, an employer can only withdraw the offer after evaluating the applicant under Article 23-A and finding that the applicant’s conviction history poses a direct relationship or unreasonable risk.

A. Before a Conditional Offer

The FCA prohibits the discovery and use of criminal history before a conditional offer of employment. During this time, an employer must not seek or obtain an applicant’s criminal history. Consistent with Article 23-A, an employer’s focus must instead be on an applicant’s qualifications. The following are examples of common hiring practices that are affected by the FCA.

i. Solicitations, advertisements, and publications for employment cannot mention criminal history.

The FCA now explicitly prohibits employers from expressing any limitation or specification based on criminal history in their job advertisements,11 even though such advertisements are already illegal under the existing NYCHRL.12 Ads cannot say, for example, “no felonies,” “background check required,” or “clean records only.” Solicitations, advertisements, and publications encompass a broad variety of items, including, without limitation, employment applications, fliers, handouts, online job postings, and materials distributed at employment fairs and by temporary help firms and job readiness organizations. Employment applications cannot ask whether an applicant has a criminal history or a pending criminal case or authorize a background check.

9 The FCA updates the NYCHRL’s protections regarding non-conviction discrimination to match the New York State Human Rights Law. See Section XI of this Guidance. 10 Employers of police and peace officers can consider all non-convictions, except criminal actions terminated in favor of the applicant, as defined by New York Criminal Procedure Law § 160.50. N.Y.C. Admin. Code §§ 8-107(11)(a),(b). 11 Id. § 8-107(11-a)(a)(1). 12 Advertisements excluding people who have been arrested violate the NYCHRL’s complete ban on employment decisions based on an arrest that did not lead to a criminal conviction. Id. § 8-107(11). Employers whose advertisements exclude people with criminal convictions are not engaging in the individual analysis required by Article 23-A. Id. § 8-107(10).

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ii. Employers cannot inquire about criminal history during the interview process.

The FCA prohibits employers from making any inquiry or statement related to an applicant’s criminal history until after a conditional offer of employment. Examples of prohibited statements and inquiries include, without limitation:

• Questions, whether written or oral, during a job interview about criminal history;

• Assertions, whether written or oral, that individuals with convictions, or certain convictions, will not be hired or cannot work at the employer; and

• Investigations into the applicant’s criminal history, including using public records or the Internet, whether conducted by an employer or for an employer by a third party.

The FCA does not prevent employers from otherwise looking into an applicant’s background and experience to verify her or his qualifications for a position, including asking for resumes and references and performing general Internet searches (e.g., Google, LinkedIn, etc.). Searching an applicant’s name is legal, but trying to discover an applicant’s conviction history is not. In connection with an applicant, employers cannot search for terms such as, “arrest,” “mugshot,” “warrant,” “criminal,” “conviction,” “jail,” or “prison.” Nor can employers search websites that contain or purport to contain arrest, warrant, conviction, or incarceration information. The FCA allows an applicant to refuse to respond to any prohibited inquiry or statement. Such refusal or response to an illegal question shall not disqualify the applicant from the prospective employment.

iii. Inadvertent disclosures of criminal record information before a conditional offer of employment do not create employer liability.

The FCA prohibits any inquiry or statement made for the purpose of obtaining an applicant’s criminal history. If a legitimate inquiry not made for that purpose leads an applicant to reveal criminal history, the employer should continue its hiring process. It may not examine the applicant’s conviction history information until after deciding whether or not to make a conditional offer of employment. If the applicant raises her or his criminal record voluntarily, the employer should not use that as an opportunity to explore an applicant’s criminal history further. The employer should state that, by law, it will only consider the applicant’s record if it decides to offer her or him a job. Similarly, if an applicant asks an employer during the interview if she or he will be subject to a criminal background check, the employer may state that a criminal background check will be conducted only after a conditional offer of employment. It must then move the conversation to a different topic. Employers who make a good faith effort to exclude information regarding criminal history before extending a conditional offer of employment will not be liable under the FCA.

B. After the Conditional Offer of Employment

After extending a conditional offer of employment, as defined in Section II of this Guidance, an employer may make the same inquiries into, and statements about, an applicant’s criminal history as before the FCA became effective. An employer may:

• Ask, either orally or in writing, whether an applicant has a criminal conviction history or a pending criminal case;

• Run a background check itself or, after giving the applicant notice and getting her or his permission, use a consumer reporting agency to do so;13 and

13 The consumer report cannot contain credit information. Under the Stop Credit Discrimination in Employment Act, employers, labor organizations, and employment agencies cannot request or use the consumer credit history of an applicant or employee for the purpose of making any employment decisions, including hiring, compensation, and other terms and conditions of employment. Id. §§ 8-102(29); 8-107(24).

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• Once an employer knows about an applicant’s conviction, ask her or him about the circumstances that led to it and begin to gather information relevant to every Article 23-A factor.

Employers must never inquire about or act on non-conviction information, however. To guard against soliciting or considering non-conviction information, employers may frame inquiries by using the following language after a conditional offer is made:

Have you ever been convicted of a misdemeanor or felony? Answer “NO” if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.

If an employer hires an applicant after learning about her or his conviction history, the FCA does not require it to do anything more. An employer that wants to withdraw its conditional offer of employment, however, must first consider the Article 23-A factors. If, after doing so, an employer still wants to withdraw its conditional offer, it must follow the Fair Chance Process.

C. Evaluating the Applicant Using Article 23-A

Under Article 23-A, an employer cannot deny employment unless it can:

1. Draw a direct relationship between the applicant’s criminal record and the prospective job; or

2. Show that employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”14

An employer that cannot show the applicant meets at least one of the exceptions to Article 23-A cannot withdraw the conditional offer because of the applicant’s criminal record. An employer cannot simply presume a direct relationship or unreasonable risk exists because the applicant has a conviction record.15 The employer must evaluate the Article 23-A factors using the applicant’s specific information before reaching either conclusion.

• To claim the direct relationship exception, an employer must first draw some connection between the nature of conduct that led to the conviction(s) and the potential position. If a direct relationship exists, an employer must evaluate the Article 23-A factors to determine whether the concerns presented by the relationship have been mitigated.16

• To claim the unreasonable risk exception, an employer must begin by assuming that no risk exists and then show how the Article 23-A factors combine to create an unreasonable risk.17 Otherwise, this exception would cover all convictions not directly related.

The Article 23-A factors are:

• That New York public policy encourages the licensure and employment of people with criminal records;

• The specific duties and responsibilities of the prospective job;

14 N.Y. Correct. L. § 752. 15 Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 613-14 (N.Y. 1988). 16 Id. at 613-14; see Soto v. N.Y. State Ofﬁce of Mental Retardation & Developmental Disabilities, 907 N.Y.S.2d 104, 26 Misc. 3d 1215(A) at *9 (N.Y. Sup. Ct. 2010) (citing Marra v. City of White Plains, 467 N.Y.S.2d 865, 870 (N.Y. App. Div. 1983)). 17 Bonacorsa, 71 N.Y.2d at 613; Exum v. N.Y. City Health & Hosps. Corp., 964 N.Y.S.2d 58, 37 Misc. 3d 1218(A) at *6 (N.Y. Sup. Ct. 2012)

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• The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;

• The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;

• The age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction;

• The seriousness of the applicant’s conviction history;18

• Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct;

• The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, which shall create a presumption of rehabilitation regarding the relevant conviction.19 Employers must carefully conduct the Article 23-A analysis. Before extending a conditional offer of employment, employers must define the job’s duties and responsibilities, as required by Article 23-A. Employers cannot alter the job’s duties and responsibilities after making a conditional offer of employment. Once an employer extends a conditional offer and learns of an applicant’s criminal record, it must solicit the information necessary to properly consider each Article 23-A factor, including the applicant’s evidence of rehabilitation. The Commission will review private employers’ adverse employment decisions to ensure that they correctly consider the Article 23-A factors and properly apply the exceptions. The Commission will begin with the purpose of Article 23-A: to create “a fair opportunity for a job is a matter of basic human fairness,” one that should not be “frustrated by senseless discrimination.”20 The Commission will also consider Article 23-A case law.21 Employers must evaluate each Article 23-A factor; they cannot ignore evidence favorable to the applicant;22 and they cannot disproportionately weigh any one factor over another.23 Employers should consider applicants’ successful performance of their job duties in past employment, along with evidence that they have addressed the causes of their criminal activity.24

V The Fair Chance Process

If, after evaluating the applicant according to Article 23-A, an employer wishes to decline employment because a direct relationship or unreasonable risk exists, it must follow the Fair Chance Process:

1. Disclose to the applicant a written copy of any inquiry it conducted into the applicant’s criminal history;

18 Employers may judge the seriousness of an applicant’s criminal record based on the number of felony and misdemeanor convictions, along with whether the acts underlying those convictions involved violence or theft. 19 N.Y. Correct. L. § 753(2). An employer may not disfavor an applicant because she or he does not possess a certificate. 20 Governor’s Approval Mem., Bill Jacket, L. 1976, ch. 931. 21 Nearly all reported cases concern public agencies’ employment decisions, which cannot be reversed unless “arbitrary and capricious.” N.Y. Correct. L. § 755; see C.P.L.R. § 7803(3). The “arbitrary and capricious” standard does not apply to private employers. 22 Gallo v. N.Y. State Ofﬁce of Mental Retardation & Developmental Disabilities, 830 N.Y.S.2d 796, 798 (N.Y. App. Div. 2007). 23 Soto, 26 Misc. 3d 1215(A) at *7. 24 Odems v. N.Y.C. Dep’t of Educ., No. 400637/09 at *4, 2009 WL 5225201, at *5, 2009 N.Y. Misc. LEXIS 6480, at *5 (N.Y. Sup. Ct. Dec. 16, 2009); El v. N.Y.C. Dep’t of Educ., 23 Misc.3d 1121(A), at *4-5 (N.Y. Sup. Ct. 2009).

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2. Share with the applicant a written copy of its Article 23-A analysis; and

3. Allow the applicant at least three business days, from receipt of the inquiry and analysis, to respond to the employer’s concerns.

A. Disclosing the Inquiry

The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an applicant has a criminal record, along with the date and time the employer accessed the information. The applicant must be able to see and challenge the same criminal history information relied on by the employer. Employers who hire consumer reporting agencies to conduct background checks can fulfill this obligation by supplying a copy of the CRA’s report on the applicant.25 Because CRAs can be held liable for aiding and abetting discrimination under the NYCHRL, they should ensure that their customers only request criminal background reports after a conditional offer of employment. Employers who rely on criminal record information beyond what is contained in a criminal background report must also give that information to the applicant. Employers who search the Internet to obtain criminal histories must print out the pages they relied on, and such printouts must identify their source so that the applicant can verify them. Employers who check public records must provide copies of those records. Employers who rely on oral information must provide a written summary of their conversation. The summary must contain the same information the employer relied on in reaching its determination, and it should identity whether that information was provided by the applicant.

B. Sharing the Fair Chance Notice

The FCA directs the Commission to determine the manner in which employers inform applicants under Article 23-A and provide a written copy of that analysis to applicants.26 The Commission has prepared a Fair Chance Notice (the “Notice”)27 that employers may use to comply with this requirement. As long as the material substance – considering specific facts in the Article 23-A analysis – does not change, the Notice may be adapted to an employer’s preferred format. The Notice requires employers to evaluate each Article 23-A factor and choose which exception – direct relationship or unreasonable risk – the employer relies on. The Notice also contains space for the employer to articulate its conclusion.28 Boilerplate denials that simply list the Article 23-A factors violate the FCA. For example, an employer cannot simply say it considered the time since conviction; it must identify the years and/or months since the conviction. An employer also cannot list specific facts for each factor but then fail to describe how it concluded that the applicant’s record met either the direct relationship or unreasonable risk exceptions to Article 23-A. Finally, the Notice informs the applicant of her or his time to respond and requests evidence of rehabilitation and good conduct. The Notice provides examples of such information. Employers may identify specific examples of rehabilitation and good conduct that would be most relevant to the prospective position, but examples must be included.

C. Allowing Time to Respond

Employers must give applicants a reasonable time, which shall be no less than three business days, to respond to the employer’s inquiry and Notice. During this time, the employer may not permanently

25 15 U.S.C. § 1681d; N.Y. Gen. Bus. L. § 380-b(b). 26 N.Y.C. Admin. Code § 8-107(11-a)(b)(ii). 27 The Notice is available on the Commission’s website, http://www.nyc.gov/FairChanceNYC. 28 N.Y. Correct. L. § 753(1)(h).

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 8 ;4 Commission on Human Rights Revised 03/11/2016 place another person in the applicant’s prospective position. This time period begins running when an applicant receives both the inquiry and Notice. Employers may therefore wish to confirm receipt, either by disclosing the information in person, electronically, or by registered mail. Such method of communication must be mutually agreed on in advance by the applicant and employer. Otherwise, the Commission will credit an applicant’s recollection as to when she or he received the inquiry and Notice. By giving an applicant at least three business days to respond, the FCA contemplates a process in which employers discuss their reasons for finding that an applicant’s record poses a direct relationship or unreasonable risk. The process allows an applicant to respond either orally or in writing and provide additional information relevant to any of the Article 23-A factors.29 After receiving additional information from an applicant, an employer must examine whether it changes its Article 23-A analysis. Employers may offer an applicant a similar position that mitigates the employer’s concerns. If, after communicating with an applicant, the employer decides not to hire her or him, it must relay that decision to the applicant. The three-day time period to respond also provides an opportunity for the applicant to address any errors on the employer’s background report, including any discrepancies between the convictions she or he disclosed and the results of the background check. As detailed below, a discrepancy could be due to an error on the report or an applicant’s intentional misrepresentation.

i. Handling Errors in the Background Check

An error on a background check might occur because, for example, it contains information that pertains to another person or is outdated. If an applicant is able to demonstrate an error on the background report, the employer must conduct the Article 23-A analysis based on the corrected conviction history information to ensure its decision is not tainted by the previous error. If the employer then finds a direct relationship or unreasonable risk and intends to take an adverse action on that basis, it must follow the Fair Chance Process: the applicant must be given a copy of the corrected inquiry, the employer’s Article 23-A analysis, at least three business days to respond, with an opportunity to provide any additional information for the employer to review and re-examine its analysis.

ii. Handling Applicants’ Misrepresentations of Their Conviction Histories

If an applicant cannot or does not demonstrate that any discrepancy between the information she or he disclosed and the employer’s background report is due to an error, the employer can choose not to hire the individual based on the applicant’s misrepresentation. It need not evaluate the applicant’s record under Article 23-A.

VI Temporary Help Firms Under the Fair Chance Act

Temporary help firms employ individuals, either as direct or joint employers, and place them in job assignments at the firms’ clients. The FCA applies the same way to temporary help firms as it does to any other employer. The only difference is that, for these firms, a conditional offer of employment is an offer to place an applicant in the firm’s labor pool, from which the applicant may be sent on job assignments to the firm’s clients. Before a temporary help firm withdraws a conditional offer of employment after discovering an applicant’s conviction history, it must follow the Fair Chance Process, according to Section V of this Guidance. To evaluate the job duties, a temporary help firm may only consider the basic skills necessary to be placed in its applicant pool. Employers who accept placements from temporary help firms, and who wish to inquire about temporary workers’ criminal histories, must follow the Fair Chance Act. They may not make any statements or inquiries about an applicant’s criminal record until after the worker is assigned to the employer, and they must follow the Fair Chance Process if they wish to decline employment because of an applicant’s criminal record.

29 N.Y.C. Admin. Code § 8-107(11-a)(b).

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As with any other type of discrimination, temporary help firms will be liable if they aid and abet an employer’s discriminatory hiring preferences. For example, a temporary help firm cannot, based on an employer’s instructions, refer only temporary workers who do not have criminal histories or who have “less serious” criminal histories.

VII Positions Exempt from the FCA

Consistent with the Local Civil Rights Restoration Act of 2005,30 all exemptions to coverage under the FCA’s anti-discrimination provisions are to be construed narrowly. Employers may assert the application of an exemption to defend against liability, and they have the burden of proving the exemption by a preponderance of the evidence. Other than the employers described in Subsections C and D of this Section, the Commission does not assume that an entire employer or industry is exempt and will investigate how an exemption applies to a particular position or role. Positions that are exempt from the FCA are not necessarily exempt from Article 23-A.

A. Employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions

The FCA does not apply to the actions of employers or their agents that are taken pursuant to any state, federal, or local law that requires criminal background checks for employment purposes or bars employment based on criminal history.31 The purpose of this exemption is to not delay a criminal background inquiry when the results of that inquiry might legally prohibit an employer from hiring an applicant. A network of federal, state, and local laws creates employment barriers for people with criminal records. The Commission characterizes these barriers as either mandatory or discretionary. Mandatory barriers require a licensing authority or employer to deny applicants with certain convictions enumerated in law. Discretionary barriers allow, but do not require, a licensing authority or employer to deny applicants with criminal records, and may or may not enumerate disqualifying convictions. The FCA controls any time an employer’s decision is discretionary, meaning it is not explicitly mandated by law. For example, state law contains mandatory barriers for – and requires background checks of – applicants to employers regulated by the state Department of Health (“DOH”), Office of Mental Health (“OMH”), and Office of People with Developmental Disabilities (“OPWDD”).32 These agencies require the employers they regulate to conduct background checks because the agencies are charged by state law to ensure that individuals with certain convictions are not hired to work with vulnerable people.33 Employers regulated by DOH, OMH, and OPWDD are therefore exempt from the FCA when hiring for positions where a criminal history check is required by law. For positions that do not require a criminal history check, however, such employers have to follow the FCA. The FCA applies when an employer hires people who require licensure, or approval by a government agency, even if the license has mandatory barriers. In that case, an employer can only ask whether an applicant has the required license or can obtain one within an acceptable period of time. Any inquiry into the applicant’s criminal record – before a conditional offer of employment – is not allowed. An applicant who has a license has already passed any criminal record barriers and been approved by a government agency. An applicant who cannot, because of her or his conviction record, obtain a required license may have her or his conditional offer withdrawn or employment terminated for such legitimate nondiscriminatory reason.

30 N.Y.C. Local Law No. 85 (2005); N.Y.C. Admin. Code § 8-130. 31 N.Y.C. Admin. Code § 8-107(11-a)(e). 32 N.Y. Exec. L. § 845-b. 33 Id. at 845-b(5)(a).

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B. Employers Required by a Self-Regulatory Organization to Conduct a Criminal Background Check of Regulated Persons

Employers in the financial services industry are exempt from the FCA when complying with industry- specific rules and regulations promulgated by a self-regulatory organization (“SRO”).34 This exemption only applies to those positions regulated by SROs; employment decisions regarding other positions must still comply with the FCA.

C. Police and Peace Ofﬁcers, Law Enforcement Agencies, and Other Exempted City Agencies

Police and peace officers are limited to their definitions in CPL §§ 1.20(34) and 2.10, respectively. Employment decisions about such officers are exempt from the FCA, as are decisions about positions in law enforcement agencies exempted under New York Correction Law Article 23-A.35 As of the date of this Guidance, the following City agencies are also exempt from the FCA: the New York City Police Department, Fire Department, Department of Correction, Department of Investigation, Department of Probation, the Division of Youth and Community Development, the Business Integrity Commission, and the District Attorneys’ offices in each borough.

D. City Positions Designated by the Department of Citywide Administrative Services (“DCAS”) as Exempt

This exemption gives the Commissioner of DCAS the discretion to determine that employment decisions about some City positions, not already exempted pursuant to another provision, need not comply with the FCA because the position involves law enforcement; is susceptible to bribery or other corruption; or entails the provision of services to, or the safeguarding of, people vulnerable to abuse. Once DCAS exempts a position, applicants may be asked about their conviction history at any time during the hiring process. Under this exemption, however, applicants who are denied employment because of their conviction history must receive a written copy of the DCAS’s Article 23-A analysis.36

VIII Best Practices for Employers

An employer claiming an exemption must be able to show that the position falls under one of the categories in Section VII of this Guidance. Employers availing themselves of exemptions to the FCA should inform applicants of the exemption they believe applies and keep a record of their use of such exemptions for a period of five (5) years from the date an exemption is used. Keeping an exemption log will help the employer respond to Commission requests for information. The exemption log should include the following:

• Which exemption(s) is claimed;

• How the position fits into the exemption and, if applicable, the federal, state, or local law or rule allowing the exemption under Sections VII(A) or (B) of this Guidance;

• A copy of any inquiry, as defined by Section V(A) of this Guidance, along with the name of the employee who made it;

• A copy of the employer’s Article 23-A analysis and the name of any employees who participated in it; and

34 15 U.S.C. § 78c(a)(26). 35 N.Y. Correct. L. § 750(5). 36 N.Y.C. Admin. Code § 8-107(11-a)(f)(2).

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• The final employment action that was taken based on the applicant’s criminal history.

Employers may be required to share their exemption log with the Commission. Prompt responses to Commission requests may help avoid a Commission-initiated investigation into employment practices. The Commission recommends that the results of any inquiry into an applicant’s criminal history be collected and maintained on separate forms and kept confidential. An applicant’s criminal history should not be used, distributed, or disseminated to any persons other than those involved in making an employment decision about an applicant.37

IX Enforcement

The Commission will vigorously enforce the FCA. The amount of a civil penalty will be guided by the following factors, among others:

• The severity of the particular violation;

• The existence of additional previous or contemporaneous violations;

• The employer’s size, considering both the total number of employees and its revenue; and

• Whether or not the employer knew or should have known about the FCA.

These penalties are in addition to the other remedies available to people who successfully resolve or prevail on claims under the NYCHRL, including, but not limited to, back and front pay, along with compensatory and punitive damages. The Commission will presume, unless rebutted, that an employer was motivated by an applicant’s criminal record if it revokes a conditional offer of employment, as defined in Section II of this Guidance. Consistent with that definition, the Commission will presume that any reason known to the employer before its conditional offer is not a legitimate reason to later withdraw the offer.

X Criminal Record Discrimination in Obtaining Credit

The FCA additionally prohibits inquiries and adverse actions based on non-convictions when a person is seeking credit.

37 After hire, the employee’s supervisor or manager may also be informed of the applicant’s criminal record.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 12 ;4 Commission on Human Rights 10/27/2015

CRIMINAL RECORD? YOU CAN WORK WITH THAT. Criminal history can’t be part of the hiring process until after a job offer. That means you get a fair chance, and employers get to consider more candidates.

Starting October 27, 2015, employers cannot ask you about your criminal history until after they offer you a job. After an employer offers you a job, they can ask about and consider your criminal history. If an employer decides that they no longer want to hire you after finding out about your record, the employer must follow a specific process. This guide explains that process and provides you with information about your rights both before and after getting a job offer. You have the same rights under this law in hiring or any other employment decision, like promotions. However, this guide focuses on the job application process.

] BEFORE A JOB OFFER

Your criminal record is off-limits until an employer offers you a job. Employers cannot place job ads that mention arrests, convictions, or having a clean record, such as “no felons,” “background check required,” or “must have clean record.” Job applications cannot have questions about criminal records and cannot ask you to authorize a background check. Employers cannot ask you questions about your criminal record. If you are asked about your record, your answer cannot be used against you. Employers cannot run a background check on you until after a conditional offer of employment.

] AFTER A JOB OFFER

Once an employer offers you a job, they can ask about and consider your criminal record. Employers can ask you if you have any criminal convictions. You must disclose felony and misdemeanor convictions, no matter how old they are. Employers can require you to authorize a background check. If you do not authorize a background check, an employer can refuse to hire you. There are two things employers can never ask about, and you should not disclose even if asked: 1. Any arrest where you were never convicted; 2. Any convictions that are sealed. Convictions are usually sealed when you: • Are convicted of a non-criminal violation, like disorderly conduct; • Complete a court-ordered drug treatment program; or • Are adjudicated as a youthful offender or juvenile delinquent. Even if an employer finds out about this information, it cannot be used against you. The only exception is if you are applying to be a police or peace officer.

] BEFORE A FINAL EMPLOYMENT DECISION

Once an employer finds out about your criminal record, the employer can decide not to hire you. But before making a final decision, an employer must do three things: 1. Give you a copy of any background check it did on you; 2. Evaluate you by considering specific factors and share that written evaluation with you; and 3. Hold the job open for at least three business days after the employer communicates its decision to you so that you can respond to the decision.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 1 ;4 Commission on Human Rights 10/27/2015

Employers cannot deny you work just because you have a criminal record. Before deciding not to hire you because of your criminal record, employers must consider these factors: • That New York public policy encourages the employment of people with criminal records; • The specific duties and responsibilities of the job; • The bearing, if any, of your criminal record on your ability to do the job; • The amount of time that has passed since the events that led to your criminal conviction; • Your age when you engaged in criminal conduct; • The seriousness of your conviction record; • Any positive information you have in your favor. This includes evidence that you attended school, job training, or counseling; had past employment; or are involved with your community. These can include letters of recommendation from people who know you, like teachers, counselors, supervisors, clergy, and parole or probation officers. • If you have a certificate of relief from disabilities or a certificate of good conduct, an employer must presume you are rehabilitated for your convictions. After looking at these factors, an employer can decide to not hire you for one of two reasons: 1) because a direct relationship exists between your conviction and the job you want; or 2) because your conviction history creates an unreasonable risk to people or property. The employer must send you its reasoning in writing, along with the background check it used. After receiving these materials, you have three business days to respond to address the employer’s concerns.

Do all employers have to follow the Fair Chance Act? No, some employers are required by law to check your criminal record. Other employers are required by law to not hire people with certain serious convictions. These employers do not have to follow the FCA. In addition, law enforcement-related city agencies do not have to follow the FCA. Does this law apply to housing? No, this law affects employment only. Criminal history can still be used by landlords to decide whether to rent property. What should I do if I believe an employer did not follow the rules described here? Call 311 and ask for the Commission on Human Rights. You can leave an anonymous tip, or you can file a complaint about what happened to you. If the employer is found to have broken the law, you could recover lost wages or other damages and the employer may have to pay a fine.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 2 ;4 Commission on Human Rights 11/16/2015

CRIMINAL RECORD? YOU CAN WORK WITH THAT. When employers consider qualiﬁcations ﬁrst, more New Yorkers go to work. That makes businesses strong and powers our economy. ] INFORMATION FOR EMPLOYERS

The New York City Commission on Human Rights is a resource to help you strengthen your business, become a more inclusive employer, and conform your employment practices to comply with the NYC Human Rights Law (“NYCHRL”). This document provides information regarding the Fair Chance Act, an important change in the law affecting your employment application and decision-making processes. For nearly 40 years, New York Correction Law Article 23-A (“Article 23-A”) has prohibited New Yorkers from being denied a job simply because of their arrest or criminal records. Starting on October 27, 2015, a new city law called the Fair Chance Act (“FCA”) requires most employers in New York City to wait until after a conditional offer of employment before asking about or considering a job candidate’s criminal record. At that point, employers may only revoke the job offer consistent with Article 23-A. If you decide to revoke a conditional offer after considering an applicant’s criminal history, the FCA requires that you notify the applicant and allow him/her at least three days to respond before you make a final decision on his/her application. This time period takes into account the fact that up to 50% of criminal background checks contain outdated or incorrect information, and gives applicants an opportunity to provide updated information.1 Employers that fail to follow the Article 23-A process or fail to follow the process for revoking offers after considering criminal history may be liable for damages and/or penalties under the NYCHRL. An employer will be liable for any FCA violations committed by third party entities hired by the employer to manage any aspect of its recruitment, interviewing, or hiring processes. While the FCA applies to all employment decisions – whether you are hiring, firing, or promoting an individual – this guide refers to all individuals as “applicants” because the law will most frequently apply during hiring.

] BEFORE A CONDITIONAL OFFER OF EMPLOYMENT

Job applicants’ criminal history cannot be part of your hiring process until after a conditional offer of employment is extended. In order to comply with the FCA, you must: • Eliminate any reference to arrest or conviction history when advertising for positions. Phrases such as, “no felonies,” “background check required,” and “must have clean record” on job advertisements cannot be used. • Ensure that your application forms and agents acting on your behalf do not ask whether an applicant has a criminal record or ask an applicant to authorize a background check. • Instruct your human resources and hiring staff to not ask applicants any questions about criminal records, run a background check, or attempt to discover whether or not an applicant has a conviction history before the conditional offer. During the hiring process, you may accidentally discover an applicant’s criminal history. If that happens, inform the applicant that any consideration of his/her criminal record will happen only after you decide to offer him/her a job, let him/her know that you are moving on to another topic, and that it is not

1 U.S. Dept. of Justice Office of the Attorney General, The Attorney General’s Report on Criminal History Background Checks (June 2006) at 3; National Employment Law Project, 65 Million “Need Not Apply:” The Case for Reforming Criminal Background Checks for Employment (March 2011) at 7, available at http://www.nelp.org/content/uploads/2015/03/65_Million_Need_Not_ Apply.pdf.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 1 ;4 Commission on Human Rights 11/16/2015 proper to discuss that issue until later, if at all. You may want to make a note in the applicant’s file about what happened, in case the disclosure becomes an issue.

] AFTER A CONDITIONAL OFFER OF EMPLOYMENT IS MADE TO THE APPLICANT

After you extend a conditional offer of employment, you have the same rights and obligations as before the effective date of the FCA. You may ask, either orally or in writing, whether an applicant has a criminal conviction history or a pending criminal case; check the applicant’s criminal record; and ask the applicant about the circumstances that led to any criminal conviction. As you ask these questions, you should gather information necessary to analyze the person’s conviction history under Article 23-A, which is explained below. Employers should note that there is certain arrest and conviction information that is always off- limits. You may never ask about or consider arrests that did not result in a criminal conviction. These include cases where a person was not found guilty or her or his case was later sealed. Convictions for petty offenses like disorderly conduct are usually sealed, as are cases where a person was adjudicated as a youthful offender or juvenile delinquent. This information should never appear on a background check and cannot be asked about or considered at any point in the hiring process. If you find out about it anyway, you cannot use it in an employment decision. The following is a sample question you can use, after a conditional offer of employment, that only asks about information you are legally allowed to consider: Have you ever been convicted of a misdemeanor or felony? Answer “NO” if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony. If you decide that the applicant’s record does not outweigh the reasons you selected him/her for hire, and wish to hire the applicant, you do not have to do anything more. If you want to withdraw the offer of employment, however, you must first complete three steps: 1. Give the applicant a copy of any background check or other documents you used to determine that s/he had a criminal record; 2. Evaluate the applicant under Article 23-A, and share that written evaluation with him/her; and 3. Hold the job open for at least three business days so the applicant can respond.

] DISCLOSING THE BACKGROUND CHECK

You must give the applicant exactly the same information you used to determine s/he had a criminal record. The information should contain date and time it was accessed and the name of the employee who accessed it. Complying is straightforward: • If you hired another company to do a background check report, turn over a copy of that report. • If you searched the Internet, print out the pages you relied upon. • If you checked public records, provide copies of those records. • If you relied upon oral information, summarize your conversation and the information obtained in writing. This includes information from the applicant him/herself.

] EVALUATING THE APPLICANT UNDER ARTICLE 23-A

Under Article 23-A, New Yorkers cannot be denied work simply because of a criminal record. You may only decline to hire someone if there is a direct relationship between the applicant’s criminal record and the prospective job or you can show that employing the person creates an unreasonable risk to your property or to the safety of specific individuals or the general public. You must consider the following

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 2 ;4 Commission on Human Rights 11/16/2015 eight factors in making your determination. If you determine that a direct relationship exists, evaluate the factors to determine whether the risk is decreased. If there is no direct relationship, all of the factors may be considered in determining whether an unreasonable risk exists. The factors are: • That New York public policy encourages the licensure and employment of people with criminal records. • The specific duties and responsibilities of the prospective job. • The bearing, if any, of the person’s criminal record on her or his fitness or ability to perform one or more of the job’s duties or responsibilities. • The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the arrest or conviction itself. • The age of the applicant when the events that led to her or his conviction occurred. • The seriousness of the applicant’s conviction record, judged by the applicant’s conduct. Note that the Commission does not consider convictions for possession or sale of a controlled substance to be particularly serious. • Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct. Because you are required to consider this information, you must affirmatively request it from applicants. • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public. • If an applicant has a certificate of relief from disabilities or a certificate of good conduct, you must presume s/he is rehabilitated. The Commission’s website contains additional information about how to conduct the Article 23-A analysis, along with a form you may use to comply with this requirement. The form may be adapted to your preferred format or distributed electronically but the substantive material language must remain the same.

] ALLOWING TIME FOR THE APPLICANT TO RESPOND

You must give applicants a reasonable time to respond to the background check and Article 23-A analysis. The law requires at least three business days, from when an applicant receives this information, but you may provide the applicant even more time to gather any information necessary to respond. You must hold the job open for the applicant during this three-day period. If an applicant contacts you during this time, you may be able to resolve the issue by explaining your concerns and having the applicant address them. You may also decide to offer the applicant a different position that you believe is more appropriate for the applicant. If you are not able to reach a resolution after three-day, you must inform the applicant that s/he will not be hired before you can move on to the next candidate.

Does this new law cover my business? Probably. Employers must have four or more employees in New York City to be covered by the law. For small businesses, the owner her/himself counts. The four employees need not work in the same location, as long as one of them works in New York City. The FCA does not apply to your business if another law or government agency either requires you to check applicants’ criminal backgrounds or prohibits you from hiring people with certain criminal convictions. If you have discretion to hire an applicant with a record, however, you must follow the FCA.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 3 TM NYC COMMISSION ON HUMAN RIGHTS Commission on Legal Enforcement Guidance on the Human Rights Stop Credit Discrimination in Employment Act, N.Y.C. Admin. Code §§ 8-102(29), 8-107(9)(d), (24); Local Law No. 37 (2015) BILL DE BLASIO Mayor CARMELYN P. MALALIS The New York City Human Rights Law (hereinafter the “NYCHRL”) prohibits Commissioner/Chair discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based policing by law enforcement. The NYCHRL, pursuant to the 2005 Civil Rights Restoration Act, must be construed “independently from similar or identical provisions of New York state or federal 100 Gold Street, Suite 4600 New York, NY 10038 statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling nyc.gov/humanrights 1 @NYCCHR above which the local law cannot rise.” The New York City Commission on Human Rights (the “Commission”) is the City agency charged with enforcing the NYCHRL. Individuals interested in vindicating their rights under the NYCHRL can choose to file a complaint with the Commission’s Law Enforcement Bureau within one (1) year of the discriminatory act or file a complaint at New York State Supreme Court within three (3) years of the discriminatory act. The NYCHRL covers employers with four or more employees. The Stop Credit Discrimination in Employment Act (“SCDEA”), which goes into effect on September 3, 2015, amends the NYCHRL by making it an unlawful discriminatory practice for employers, labor organizations, and employment agencies to request or use the consumer credit history of an applicant or employee for the purpose of making any employment decisions, including hiring, compensation, and other terms and conditions of employment. N.Y.C. Admin. Code §§ 8-102(29), 8-107(24). The SCDEA also makes it an unlawful discriminatory practice for a City agency to request or use, for licensing or permitting purposes, information contained in the consumer credit history of an applicant, licensee or permittee. Id. at § 8-107(9)(d)(1). As of September 3, 2015, this document serves as the Commission’s interpretative enforcement guidance of the SCDEA’s protections.2

] I. LEGISLATIVE INTENT The SCDEA reflects the City’s view that consumer credit history is rarely relevant to employment decisions, and consumer reports should not be requested for individuals seeking most positions in New York City. In enacting the SCDEA, the City Council intended for it to “be the strongest bill of its type in the country prohibiting discriminatory employment credit checks.”3 The SCDEA is intended to stop employers from using consumer credit history when making employment decisions—a practice that has a disproportionately negative effect on unemployed people, low income communities, communities of color, women, domestic violence survivors, families with children, divorced individuals, and

1 Local Law No. 85 (2005); see also N.Y.C. Admin. Code § 8-130 (“The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed.”). 2 The Commission does not have jurisdiction to enforce federal and state fair credit reporting laws, which require employers to give applicants notice and get their permission before obtaining a consumer report about them. 15 U.S.C. § 1681d; N.Y. Gen. Bus. L. § 380-b(b). 3 Council Member Brad S. Lander, Hearing Transcript of the New York City Council Stated Meeting, 63 (Apr. 16, 2015), available at http://legistar.council.nyc.gov/Legislation.aspx (last accessed Aug. 12, 2015).

Updated 11/05/2015 1 TM those with student loans and/or medical bills. The City Council noted that multiple studies have failed to demonstrate any correlation between individuals’ credit history Commission on 4 Human Rights and their job performance. ] II. Deﬁnitions The SCDEA defines“consumer credit history” to mean an individual’s “credit BILL DE BLASIO worthiness, credit standing, credit capacity, or payment history, as indicated by: Mayor CARMELYN P. MALALIS (a) a consumer credit report; Commissioner/Chair (b) credit score; or (c) information an employer obtains directly from the individual regarding 1. details about credit accounts, including the individual’s number of credit 100 Gold Street, Suite 4600 New York, NY 10038 accounts, late or missed payments, charged-off debts, items in collections, credit limit, prior credit report inquiries, or nyc.gov/humanrights @NYCCHR 2. bankruptcies, judgments or liens.” N.Y.C. Admin. Code § 8-102(29). Under the SCDEA, a consumer credit report includes “any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history.” Id. Companies that provide reports containing information about people’s payment history to creditors, the amount of people’s credit and credit consumption, and information from debt buyers and collectors are considered consumer reporting agencies for purposes of the SCDEA, though the definition of a “consumer reporting agency” is not confined to such companies. “Consumer reporting agency” includes any person or entity that, for monetary fees, dues, or on a cooperative nonprofit basis, engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports or investigative consumer reports to third parties. Note that, unlike the definition of a “consumer reporting agency” under the New York State Fair Credit Reporting Act (“FCRA”), a person need not regularly engage in assembling or evaluating consumer credit history in order to be a “consumer reporting agency” under the SCDEA. ] III. Violations of the SCDEA After September 2, 2015, the following acts will be separate chargeable violations of the NYCHRL: 1. Requesting consumer credit history from job applicants or potential or current employees, either orally or in writing; 2. Requesting or obtaining consumer credit history of a job applicant or potential or current employee from a consumer reporting agency; and 3. Using consumer credit history in an employment decision or when considering an employment action. All of the above are unlawful discriminatory practices, even if such practices do not lead to an adverse employment action. Whether or not an adverse employment action occurred as a result of considering credit history can be considered when determining damages or penalties, but is not relevant for finding liability. The SCDEA does not prevent employers from researching potential employees’ background and experience, evaluating their résumés and references, and conducting online searches (e.g., Google and LinkedIn).

4 Report of the Governmental Affairs Division, Committee on Civil Rights, 4 (April 14, 2015) (available through http://legistar.council.nyc.gov/Legislation.aspx, last accessed Aug. 28, 2015).

Updated 11/05/2015 2 TM ] IV. Positions that are Exempted from the SCDEA’s Anti-discrimination Provisions Commission on Human Rights Consistent with the broad scope of the NYCHRL, all exemptions to coverage under the SCDEA’s anti-discrimination provisions are to be construed narrowly. Employers may claim an exemption to defend against liability, and they have the burden of

BILL DE BLASIO proving the exemption by a preponderance of the evidence. No exemption applies to Mayor an entire employer or industry. Exemptions apply to positions or roles, not individual CARMELYN P. MALALIS applicants or employees. Commissioner/Chair A. Employers Required by State or Federal Law or Regulations or by a Self- Regulatory Organization to Use an Individual’s Consumer Credit History for Employment Purposes. 100 Gold Street, Suite 4600 New York, NY 10038 Employers in the financial services industry are exempt from the SCDEA when complying with industry-specific rules and regulations promulgated by a self- nyc.gov/humanrights @NYCCHR regulatory organization (“SRO”). This exemption only applies to those positions regulated by SROs; employment decisions regarding other positions must still comply with the SCDEA. As of the date of this interpretive guidance, the only New York law requiring the evaluation of a current or potential employee’s consumer credit history applies to licensed mortgage loan originators. N.Y. Bank. L. § 559-d(9). This law was enacted to comply with the requirements of the federal SAFE Mortgage Licensing Act of 2008. 12 U.S.C. § 5104(a)(2)(A). B. Police officers, peace officers, or positions with a law enforcement or investigative function at the Department of Investigation (“DOI”). Police and peace officers are limited to their definitions in New York Criminal Procedure Law §§ 1.20(34) and 2.10, respectively. The SCDEA’s anti-discrimination provisions still apply when making employment decisions about civilian positions; only positions for police or peace officers are exempt from the SCDEA. The DOI has several positions that do not serve investigative functions. Certain operations and communications positions are examples of positions to which the SCDEA’s anti-discrimination provisions still apply. C. Positions subject to a DOI background investigation. For certain positions with the City of New York, the DOI conducts background checks that involve collecting consumer credit history from the job applicant. The DOI may provide some of the information collected from the background check to the City agency interviewing or hiring the job applicant. Under the SCDEA, City agencies may not request or use consumer credit history collected by the DOI in making employment decisions unless: 1. The position is appointed; and 2. The position requires a high degree of public trust. The Commission currently defines only the following positions as involving ahigh degree of public trust: t Commissioner titles, including Assistant, Associate, and Deputy Commissioners; t Counsel titles, including General Counsel, Special Counsel, Deputy General Counsel, and Assistant General Counsel, that involve high-level decision- making authority; t Chief Information Officer and Chief Technology Officer titles; and t Any position reporting to directly to an agency head.

Updated 11/05/2015 3 TM D. Positions requiring bonding under federal, state, or City law or regulation.

Commission on In order for this exemption to apply, the specific position must be required to be Human Rights bonded under City, state, or federal law, and bonding must be legally required, not simply permitted, by statute. For example, the following positions must be bonded: Bonded Carriers for U.S. Customs, 19 C.F.R. § 112.23; Harbor Pilot, N.Y. Nav. L. § 93; Pawnbrokers, N.Y. Gen. Bus. L. § 41; Ticket Sellers & Resellers, N.Y. Arts & Cult. BILL DE BLASIO Mayor Aff. L. §§ 25.15, 25.07; Auctioneers, N.Y. City Admin. Code § 20-279; and Tow Truck CARMELYN P. MALALIS Drivers, § 20-499. Commissioner/Chair E. Positions requiring security clearance under federal or state law. This exception only applies when the review of consumer credit history will be done by the federal or state government as part of evaluating a person for security 100 Gold Street, Suite 4600 New York, NY 10038 clearance, and that security clearance is legally required for the person to fulfill the job duties. Having “security clearance” means the ability to access classified information, nyc.gov/humanrights and does not include any other vetting process utilized by a government agency. @NYCCHR F. Non-clerical positions having regular access to trade secrets, intelligence information, or national security information. The SCDEA defines“trade secrets” as “information that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use; (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and (c) Can reasonably be said to be the end product of significant innovation.” The SCDEA limits the trade secret definition to exclude “general proprietary company information such as handbooks and policies” and “access to or the use of client, customer, or mailing lists.” Consistent with this definition and the broad scope of the NYCHRL, “trade secrets” do not include information such as recipes, formulas, customer lists, processes, and other information regularly collected in the course of business or regularly used by entry-level and non-salaried employees and supervisors or managers of such employees. The SCDEA defines“intelligence information” as “records and data compiled for the purpose of criminal investigation or counterterrorism, including records and data relating to the order or security of a correctional facility, reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual, or investigation or analysis of potential terrorist threats.” Positions having regular access to intelligence information shall be narrowly construed to include those law enforcement roles that must routinely utilize intelligence information. The SCDEA defines“national security information” as “any knowledge relating to the national defense or foreign relations of the United States, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States government and is defined as such by the United States government and its agencies and departments.” Positions having regular access to national security information shall be narrowly construed to include those government or government contractor roles that require high-level security clearances. The intelligence and national security exemptions encompass those few occupations not already subject to exemptions for police and peace officers or where credit checks are required by law.

Updated 11/05/2015 4 TM G. Positions involving responsibility for funds or assets worth $10,000 or more.

Commission on In general, this exemption includes only executive-level positions with financial Human Rights control over a company, including, but not limited to, Chief Financial Officers and Chief Operations Officers. This exemption does not include all staff in a finance department.

BILL DE BLASIO H. Positions involving digital security systems. Mayor This exemption includes positions at the executive level, including, but not limited to, CARMELYN P. MALALIS Commissioner/Chair Chief Technology Officer or a senior information technology executive who controls access to all parts of a company’s computer system. The exemption does not include any person who may access a computer system or network available to employees, nor does it include all staff in an information technology department. 100 Gold Street, Suite 4600 New York, NY 10038

nyc.gov/humanrights ] V. Employers’ Record of Exemption Use @NYCCHR An employer claiming an exemption must show that the position or role falls under one of the eight (8) exemptions in Part IV above. Employers availing themselves of exemptions to the SCDEA’s anti-discrimination provisions should inform applicants or employees of the claimed exemption. Employers should also keep a record of their use of such exemptions for a period of five (5) years from the date an exemption is used. Keeping an exemption log will help the employer respond to Commission requests for information. The exemption log should include the following: 1. The claimed exemption; 2. Why the claimed exemption covers the exempted position; 3. The name and contact information of all applicants or employees considered for the exempted position; 4. The job duties of the exempted position; 5. The qualifications necessary to perform the exempted position; 6. A copy of the applicant’s or employee’s credit history that was obtained pursuant to the claimed exemption; 7. How the credit history was obtained; and 8. How the credit history led to the employment action. Employers may be required to share their exemption log with the Commission upon request. Prompt responses to Commission requests may help avoid a Commission- initiated investigation into employment practices.

] VI. Penalties for administrative actions The Commission takes seriously the SCDEA’s prohibitions against asking about or using consumer credit history for employment purposes and will impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton or malicious conduct. The amount of a civil penalty will be guided by the following factors, among others: t The severity of the violation; t The existence of subsequent violations; t The employer’s size, considering both the total number of employees and its revenue; and t The employer’s actual or constructive knowledge of the SCDEA.

Updated 11/05/2015 5 TM These penalties are in addition to the other remedies available to people who successfully resolve or prevail on claims under the NYCHRL, including, but not limited Commission on Human Rights to, back and front pay, along with compensatory and punitive damages.

BILL DE BLASIO Mayor CARMELYN P. MALALIS Commissioner/Chair

100 Gold Street, Suite 4600 New York, NY 10038

nyc.gov/humanrights @NYCCHR

Updated 11/05/2015 6 TM YOU ARE MORE THAN YOUR CREDIT SCORE. Commission on NYC agrees. A new law prohibits most businesses from checking Human Rights or using your credit history for employment decisions.

] INFORMATION FOR EMPLOYEES AND JOB SEEKERS BILL DE BLASIO Employers cannot run a credit check on you or hire another company to perform Mayor a credit check on you. If an employer asks you to sign a document so it can check CARMELYN P. MALALIS Commissioner/Chair your credit, it is breaking the law. Employers cannot use consumer reporting agencies or third party companies, services, and websites to examine your credit history. Employers also cannot ask about your payment history or credit worthiness, credit 100 Gold Street, Suite 4600 standing, or how much credit you have. That includes credit card debt, child support, New York, NY 10038 student loans, foreclosures, missed or late payments, bankruptcies, judgments, and

nyc.gov/humanrights liens. This law applies whether you are currently working or looking for a job. @NYCCHR Your credit cannot be the reason you are fired, not hired, or not promoted. Under the NYC Human Rights Law, employers are prohibited from considering credit when making employment decisions about current or potential employees. The law does not prevent employers from otherwise looking into your background and experience to research your qualifications for a position, including asking for your résumé and references, and doing online searches (e.g., Google and LinkedIn). ] Does the NYC Human Rights Law apply to my employer? In most cases, yes. Employers must have four or more employees to be covered by the law, and individual owners are counted toward this number. The four employees need not work in the same location, nor all work in NYC. ] Does the NYC Human Rights Law cover me? In most cases, yes. Many people have rights under the NYC Human Rights Law, even if they are not full-time employees. Interns, undocumented workers, domestic workers, many independent contractors, and probationary and part-time employees all have rights under the law. Employers are still allowed to ask about credit history, do a credit check, and use credit history in an employment decision for certain positions. These exemptions do not apply to an entire employer or industry; they only affect specific jobs. Exempt positions include: r Police and peace officers (not private security guards); and r Executive-level jobs with control over finances, computer security, or trade secrets. People applying for jobs or employed as, for example, bank tellers, cashiers, movers, construction workers, salespeople, clerical and administrative staff, and restaurant and bar workers are protected under the law. Employers may not consider credit history in making employment decisions regarding any of these workers and most other types of jobs. ] Does this law apply to housing? No, this law affects employment only. Credit history can still be considered in decisions about renting or selling property. ] What should I do if an employer checked my credit? Call 311 and ask for the Commission on Human Rights. We can help you recover lost wages and other damages, and we can fine the employer for breaking the law.

09/01/2015 1 TM NEW YORKERS ARE MORE THAN THEIR Commission on CREDIT SCORES. Human Rights NYC just passed the nation’s strongest ban on employment credit checks. Let’s grow New York businesses and workforces with fairness and equal opportunity for all. BILL DE BLASIO Mayor CARMELYN P. MALALIS ] INFORMATION FOR EMPLOYERS Commissioner/Chair NYCCHR is a resource to help you strengthen your business, become a more inclusive employer, and conform your employment practices to comply with the NYC Human Rights Law (“NYCHRL”). This document provides information regarding an 100 Gold Street, Suite 4600 important change in the law affecting your employment application processes and New York, NY 10038 other employment decision-making processes. nyc.gov/humanrights As of September 3, 2015, the NYCHRL will prevent employers from asking job @NYCCHR applicants or current employees questions about their credit history; running a credit check on them; and using credit history to decide whether to hire, fire, or promote an individual. Credit history includes credit worthiness, credit capacity, and payment history. It encompasses credit accounts, charged-off debts, items in collections, bankruptcies, judgments, and liens. Some examples of credit history are credit card debt, child support obligations, student loans, and home foreclosures. Credit history cannot be used to decide whether to hire, ﬁre, or promote an individual. Even if credit checks have been part of your application process in the past, such practices now violate the NYCHRL. Employment forms requiring applicants to authorize a credit or background check are prohibited. The law does not prevent you, however, from researching potential employees’ background and experience, evaluating their resumes and references, and conducting online searches (e.g., Google and LinkedIn). ] Does the NYCHRL cover my business? Yes, if you have four or more employees (including owners). The four employees need not work in the same location, nor all work in NYC. ] Does the NYCHRL cover my potential or current employee? In most cases, yes. Many people have rights under the NYCHRL, even if they are not full-time employees, including interns, undocumented workers, domestic workers, most independent contractors, and probationary and part-time employees. There are just a few positions for which you are still allowed to ask about credit history, do a credit check, and use credit history in an employment decision. These positions include: r Police and peace officers (not private security guards); and r Executive-level jobs with control over finances, computer security, or trade secrets. This law covers you even if you are hiring for positions like bank tellers, cashiers, movers, construction workers, salespeople, clerical and administrative staff, and restaurant and bar workers. ] What is the best way to comply with this law? Employers can avoid liability by not asking potential or current employees about their credit, not running credit checks, and not considering credit history information in employment decisions. If you believe a position at your business is exempt from the SCDEA, check with an attorney knowledgeable about the new law before you risk legal exposure. Even if

09/01/2015 1 TM your business is properly exempted from the law, you should inform applicants and employees of the applicable exemption and keep a record of your business’s use of Commission on Human Rights exemptions. To help your company respond to Commission requests for information, your records should be kept for five years and include:

BILL DE BLASIO 1. The claimed exemption; Mayor 2. Why the claimed exemption covers the exempted position; CARMELYN P. MALALIS 3. The name and contact information of the applicant or employee who was Commissioner/Chair considered for the exempted position; 4. The job duties of the exempted position; 5. The qualifications necessary to perform the exempted position; 100 Gold Street, Suite 4600 6. A copy of the applicant’s or employee’s credit history that was obtained New York, NY 10038 pursuant to the claimed exemption; nyc.gov/humanrights 7. How the credit history was obtained; and @NYCCHR 8. How the credit history led to the employment action. Employers may be required to share their records with the Commission upon request. Prompt responses to Commission requests may help you avoid a Commission- initiated investigation into your practices. ] What are the penalties for violating the law? Employers who violate the NYCHRL may have to pay lost wages and other damages to affected employees and may be subject to civil penalties of up to $125,000. A willful violation may result in civil penalties of up to $250,000.

Additional guidance and information about free trainings on how to comply with the law are available at nyc.gov/humanrights.

09/01/2015 2

FAQs for Caregiver Protections

1. What is a “caregiver”? A caregiver is a person providing direct or ongoing care to a child under the age of 18, or to a person with a disability who either lives in the caregiver’s home or is related to the caregiver. The individual with the disability must rely on that person to obtain medical care or to meet their needs of daily living.

2. Does this protection cover nannies, childcare workers, eldercare workers, or other domestic workers? No. This protection only covers parents and people who care for family members or members of their household who have illnesses or disabilities.

3. Are employers required to provide employees with paid or unpaid family leave? No. This law does not require that employers provide employees with paid or unpaid family leave. However, employers may be required to provide paid or unpaid sick leave or unpaid family leave under different laws, such as the New York City Earned Sick Leave Law or the federal Family Medical Leave Act.

4. Does this law give employees the right to flexible scheduling or other changes in order to take care of caregiving responsibilities? No. This law does not give employees the right to flexible scheduling or other changes to the terms and conditions of their employment due to their caregiving responsibilities. Employers CANNOT, however, deny these benefits to employees with caregiving responsibilities if they provide these benefits to other employees.

Examples of Possible Violations of the New Caregiver Status Protections Under the New York City Human Rights Law 1. An employer allows all employees to take up to five sick days per year. This year, an employee took five days in a row to care for her seven year-old daughter who was hospitalized with asthma. The employee received a negative evaluation at the end of the year. The employee’s manager did not have any performance-related criticism for the employee except that the manager said the employee would need to find someone else to take care of her daughter when she’s ill because a week was too long to be absent from work. 2. An employee of a software company lives with an elderly friend of his family, who has diabetes and uses a wheelchair to ambulate. The employee helps her with cleaning, shopping, and other chores. The employee’s supervisor and colleagues knows that he lives with and takes care of a family friend. In late 2015, the employee applied for a promotion to a managerial position with his company. Although he is well-qualified, another employee was chosen for the promotion. When the employee questioned his supervisor as to why he was not promoted, his supervisor told him that the company understood he had commitments outside of work and didn't want to burden him with evening and weekend responsibilities. 3. An employee works as a medical assistant for a small medical practice. Two months ago, the employee’s husband was diagnosed with cancer. For the next six weeks, the employee’s husband will be attending twice weekly chemotherapy appointments in the morning before the employee goes to work. The employee asked her office manager if she could arrive up to an hour late on the days when her husband goes to chemotherapy so that she can drive him home before coming to work. The office manager said no, explaining that the practice can't function if everybody doesn't arrive on

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR

time. A couple of weeks later, the employee notices another medical assistant arriving late and being greeted by the office manager. When she asked the medical assistant why she was late, the medical assistant explained that the office manager is allowing her to come late a couple of times a week while she trains for an upcoming marathon.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR ;4 Commission on Human Rights 04/26/2016

Protections for Workers with Caregiving Responsibilities Starting May 4, 2016, you cannot be treated differently at your job because you have children, or because you care for a relative who is sick or has disabilities. Under this new provision, you cannot be discriminated against if: • You are a parent with a child under the age of 18, including adopted or foster children, and provide direct and ongoing care to that child, OR • You provide direct and ongoing care to a parent, sibling, spouse, child (of any age), grandparent, or grandchild with a disability or someone with a disability who lives with you, and that person relies on you for medical care or to meet their needs of daily living. You cannot be discriminated against at your job because you have these caregiving responsibilities.

What is caregiver discrimination? Caregiver discrimination occurs when employment decisions are based on caregiver status, which includes but is not limited to deciding not to hire or promote someone because, for example: • He or she has children at home; • He or she has a sick spouse; • He or she is a foster or adoptive parent; • He or she is a single parent; • Based on the belief that someone with children or caring for a disabled relative with a disability will not be a reliable employee; • Based on the belief that mothers should stay home with their children.

Who is protected? You are protected if you work for or are applying to work for an employer with four or more employees or an employment agency. You are protected if you work full-time or part-time or if you are an intern. You are also protected regardless of your immigration status. You are likely protected if you work as an independent contractor for an employer. What is prohibited? • An employer cannot refuse to hire, fire, or otherwise discriminate against you in the terms, conditions, or privileges of employment because of your caregiving responsibilities. • An employer cannot provide certain benefits, like flexible scheduling, to someemployees and refuse to provide the same benefits to employees who request them because of caregiving responsibilities. • An employer cannot publish an advertisement or job posting stating any limitation on who they will hire based on applicants’ roles in taking care of their family. What is NOT prohibited? • Employers do NOT have to offer accommodations to employees because of their caregiving responsibilities. For example, employers are not required to change an employee’s shift or allow them to leave work early just because they have caregiving responsibilities. Employers CANNOT, however, deny these benefits to employees with caregiving responsibilities if they provide these benefits to other employees.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 1 ;4 Commission on Human Rights 04/26/2016

What should I do if I believe an employer did not follow the rules described here? Call 311 and ask for the Commission on Human Rights. You can leave an anonymous tip, or you can file a complaint about what happened to you. If the employer is found to have broken the law, you could recover lost wages or other damages and the employer may have to pay a fine.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 2 ;4 Commission on Human Rights 04/26/2016

Protections for Workers with Caregiving Responsibilities The New York City Commission on Human Rights is a resource to help you strengthen your business, become a more inclusive employer, and conform your employment practices to comply with the New York City Human Rights Law. This document provides information regarding new protections for employees and job applicants with caregiving responsibilities, an important change in the law affecting your hiring and decision-making processes.

Starting May 4, 2016, it is a violation of the New York City Human Rights Law to treat employees or job applicants who have caregiving responsibilities differently than other employees. Under this new provision, employees or job applicants cannot be discriminated against if: • They are a parent with a child under the age of 18, including adopted or foster children, and provide direct and ongoing care for that child; OR • They provide direct and ongoing care to a parent, sibling, spouse, child (of any age), grandparent, or grandchild with a disability or a person with a disability who lives with them, and that person relies on them for medical care or to meet their needs of daily living. Employees and job applicants cannot be discriminated against because of their caregiving responsibilities. Caregiver discrimination occurs when employment decisions are based on caregiver status, which includes, but is not limited to, deciding not to hire or promote someone because, for example: • He or she has children at home; • He or she has a sick spouse; • He or she is a foster or adoptive parent; • He or she is a single parent; • Based on the belief that someone with children or caring for a relative with a disability will not be a reliable employee; • Based on the belief that mothers should stay home with their children.

Does this new law cover my business? All employers that have four or more employees in New York City are covered by the New York City Human Rights Law, including this new provision of the law. Owners count as one of the four employees. The four employees do not need work in the same location, and they do not need to all work in New York City, as long as one of them works in New York City.

Which employees are protected? Employees are protected if they work full-time or part-time, if they are an intern (paid or unpaid), and whether or not they have work authorization documents. Most independent contractors are also protected.

What is prohibited? • Employers cannot refuse to hire, fire, or otherwise discriminate against job applicants or employees in the terms, conditions, or privileges of employment because of their caregiving responsibilities.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 1 ;4 Commission on Human Rights 04/26/2016

• Employers cannot provide certain benefits, like flexible scheduling, to some employees and refuse to provide the same benefits to employees who request them because of their caregiving responsibilities. • Employers cannot publish an advertisement or job posting stating any limitation on who they will hire based on applicants’ caregiving responsibilities.

What is NOT prohibited • Employers do NOT have to offer accommodations to employees because of their caregiving responsibilities. For example, employers are not required to change an employee’s shift or allow them to leave work early just because they have caregiving responsibilities. Employers CANNOT, however, deny these benefits to employees with caregiving responsibilities if they provide these benefits to other employees. To learn more, visit nyc.gov/humanrights. You can learn more about your responsibilities as an employer under the New York City Human Rights Law and sign up for a free workshop.

Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair | NYC.gov/HumanRights | @NYCCHR 2 13.. MISC 0 03 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------······-····------·····-·······------···········------·-········-·------X

In re: Counseled Employment Discrimination Cases Second Amended Standing Assigned to Mediation by Automatic Referral Administrative Order Ml0-468 ------·······------·-···········-·------····-····-···------X

L0 REIT A A. PRES KA, Chief United States District Judge:

This Court's Standing Administrative Order of May 24, 2015, requires all counseled employment discrimination cases, except cases brought under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201, et seq., to be automatically referred to the Southern District of New York's Alternative Dispute Resolution program of mediation upon the filing of an Answer. Effective November 2, 2015, unless otherwise ordered by the judge in the particular case, within 30 days of the filing of an Answer in such cases, the parties must produce the information specified in the Pilot Discovery Protocols for Counseled Employment Cases ("Discovery Protocols"), attached as Exhibit A. Within 60 days of the filing of an Answer, or as soon thereafter as it can be scheduled, the parties and their counsel must participate in a mediation session.

The Discovery Protocols require the early exchange of targeted, core discovery, and are intended to frame issues for resolution through mediation and to assist the parties in planning for additional discovery in the event the case is not promptly resolved through mediation. If any party believes that there is good cause why a particular case should be exempted from the Discovery Protocols, in whole or in part, or from mediation, that party must raise the issue promptly with the Court.

The Discovery Protocols do not modify any party's rights under the Federal Rules of Civil Procedure or the Local Civil Rules, but they do supersede the parties' obligations under Fed. R. Civ. P. 26(a)(l). The Protective Order attached as Exhibit Bis deemed issued in all cases governed by this Standing Order. All documents and information produced under the Discovery Protocols will be deemed part of discovery under the Federal Rules of Civil Procedure. The parties' responses to the Discovery Protocols are subject to Fed. R. Civ. P. 26(e) regarding supplementation, Fed. R. Civ. P. 26(g) regarding certification of responses, and Fed. R. Civ. P. 34(b)(2)(E) regarding the form of production for documents and electronically stored information.

SO ORDERED: DATED: New York, New York October 1, 2015 ~d~LORETTA A. PRESKA Chief United States District Judge

llPage Exhibit A

PILOT DISCOVERY PROTOCOLS FOR COUNSELED EMPLOYMENT CASES

The use of the term "documents" below includes electronically stored information ("ESI").

(1) Documents that the plaintiff must produce to the defendant.

a. The plaintiff's employment contract.

b. If the claims in this lawsuit include a failure to hire or a failure to promote, the plaintiff's application for the position and any documents the plaintiff sent or received concerning the defendant's decision.

c. If the claims in this lawsuit include the wrongful termination of employment, any documents the plaintiff sent or received concerning the defendant's decision.

d. If the claims in this lawsuit include a failure to accommodate a disability, any requests for accommodation and responses to such requests.

e. If the plaintiff's employment was terminated, any documents demonstrating the plaintiff's efforts to obtain other employment. The defendant shall not contact or subpoena a prospective or current employer absent agreement or leave of court.

f. Any application for disability benefits or unemployment benefits after the alleged adverse action and documents sufficient to show any award.

(2) Information that the plaintiff must produce to the defendant.

a. If the plaintiff is relying on any oral comments that the plaintiff alleges were discriminatory or on any instances of harassment, identify the speaker or actor, the comment or action, and any witnesses to the comments or harassment.

b. A description of the categories and amounts of damages for the plaintiff's claims.

(3) Documents that the defendant must produce to the plaintiff.

a. The plaintiff's employment contract, job description, and documents sufficient to show plaintiff's compensation and benefits.

b. The plaintiff's personnel file.

c. For the most recent 5 years of employment, plaintiff's performance reviews and the file

2 I Page created for any disciplinary actions taken against the plaintiff.

d. Any documents sent by the defendant to a government agency in response to government agency claims filed by the plaintiff in which the plaintiff relied on any of the same factual allegations as those in this lawsuit.

e. If the claims in this lawsuit include a failure to hire or a failure to promote, the plaintiffs application and any documents the defendant created that record the reasons the defendant rejected the plaintiffs application.

f. If the claims in this lawsuit include the wrongful termination of employment, any documents the defendant sent to or received from the plaintiff regarding the termination, and any documents that record the reasons for the termination decision.

g. If the claims in this lawsuit include a failure to accommodate a disability, any written requests for accommodation, written responses to such requests, and documents that record the reasons for rejection of a requested accommodation.

h. Written workplace policies relevant to the alleged adverse action.

(4) Information that the defendant must produce to the plaintiff.

Information concerning the ability to pay, including insurance coverage, if relevant to the mediation.

3IPage Exhibit B

PROTECTIVE ORDER

WHEREAS, on October 1, 2015, the Court issued the Second Amended Standing Administrative Order 11 Misc. 003 for the mediation of certain counseled employment cases;

WHEREAS, the Order requires the parties to exchange certain documents and information within 30 days of the filing of an Answer;

WHEREAS, the parties seek to ensure that the confidentiality of these documents and information remains protected; and

WHEREAS, good cause therefore exists for the entry of an order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is hereby

ORDERED that the following restrictions and procedures shall apply to the information and documents exchanged by the parties pursuant to the Discovery Protocol:

1. Counsel for any party may designate any document or information, in whole or in part, as confidential if counsel determines, in good faith, that such designation is necessary to protect the interests of the client. Information and documents designated by a party as confidential will be stamped "CONFIDENTIAL."

2. The Confidential Information disclosed will be held and used by the person receiving such information solely for use in connection with the action.

3. In the event a party challenges another party's designation of confidentiality, counsel shall make a good faith effort to resolve the dispute, and in the absence of a resolution, the challenging party may seek resolution by the Court. Nothing in this Protective Order constitutes an admission by any party that Confidential Information disclosed in this case is relevant or admissible. Each party reserves the right to object to the use or admissibility of the Confidential Information.

4. The parties should meet and confer if any production requires a designation of "For Attorneys' or Experts' Eyes Only." All other documents designated as "CONFIDENTIAL" shall not be disclosed to any person, except:

a. The requesting party and counsel, including in-house counsel; b. Employees of such counsel assigned to and necessary to assist in the litigation; c. Consultants or experts assisting in the prosecution or defense of the matter, to the extent deemed necessary by counsel; and d. The Court (including the mediator, or other person having access to any Confidential Information by virtue of his or her position with the Court).

41Page 5. Prior to disclosing or displaying the Confidential Information to any person, counsel must:

a. Inform the person of the confidential nature of the information or documents; b. Inform the person that this Court has enjoined the use of the information or documents by him/her for any purpose other than this litigation and has enjoined the disclosure of the information or documents to any other person; and c. Require each such person to sign an agreement to be bound by this Order in the form attached hereto.

6. The disclosure of a document or information without designating it as "confidential" shall not constitute a waiver of the right to designate such document or information as Confidential Information. If so designated, the document or information shall thenceforth be treated as Confidential Information subject to all the terms of this Stipulation and Order.

7. At the conclusion of litigation, the Confidential Information and any copies thereof shall be promptly (and in no event later than 30 days after entry of final judgment no longer subject to further appeal) returned to the producing party or certified as destroyed, except that the parties' counsel shall be permitted to retain their working files on the condition that those files will remain protected.

SI Page Agreement

I have been informed by counsel that certain documents or information to be disclosed to me in connection with the matter entitled have been designated as confidential. I have been informed that any such documents or information labeled "CONFIDENTIAL" are confidential by Order of the Court.

I hereby agree that I will not disclose any information contained in such documents to any other person. I further agree not to use any such information for any purpose other than this litigation.

DATED:

Signed in the presence of:

(Attorney)

6IPage

[ATTORNEY NAME FIRM NAME AND ADDRESS]

Attorneys for Defendant [DEFENDANT NAME]

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (CAMDEN VICINAGE)

[PLAINTIFF NAME], Case No.

Plaintiff,

-against- [SAMPLE] DEFENDANT’S FIRST REQUEST FOR THE PRODUCTION OF DOCUMENTS [DEFENDANT NAME].,

Defendant.

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Defendant,

[Defendant Name] (“Defendant”) by its attorneys, [FIRM NAME], hereby propounds its First

Request for the Production of Documents (“Document Requests”) upon Plaintiff, [PLAINTIFF

NAME] (“Plaintiff”). Defendant requests that Plaintiff produce for inspection and copying the following documents at the offices of [FIRM NAME AND ADDRESS], within thirty (30) days of service of these Document Requests.

DEFINITIONS AND INSTRUCTIONS

Unless specifically indicated, or otherwise required by the context in which the terms, names, and instructions are used, the following definitions and instructions are applicable to each of the following Document Requests:

1. “Plaintiff,” “you,” or “your” shall mean Plaintiff, [PLAINTIFF NAME], and his agents, representatives and all other persons acting or purporting to act on his behalf. 2. “Defendant” or shall mean Defendant, [DEFENDANT NAME] as well as any of

its principals, officers, directors, managers, employees, respective agents, representatives,

attorneys, or assigns, or any other person acting on its direction or on its behalf.

3. “Complaint” shall mean the complaint filed on [DATE OF COMPLAINT] in the

U.S. District Court for the District of New Jersey, bearing the caption “[CAPTION NAME],”

Civil Action No. [NUMBER].

4. “Communication” means any oral expression, statement, dialogue, colloquy,

discussion, conversation, or other non-written act or conduct by which information or data is

transmitted, conveyed, imparted, or otherwise relayed, whether or not privilege is claimed with

respect to any such communication. “Communication” also means any expression or transfer of

thoughts or ideas between any persons made by means of writing or by documents or in any

tangible manner and includes any transfer of data from one location to another by electronic or

other means. Without limiting the foregoing, “communication” shall include any and all

discussions, conversations, meetings, telephone calls, e-mails, text messages and faxes.

5. The term “document” is defined to be synonymous in meaning and equal in scope to the usage of the term “documents or electronically stored information” in Fed. R. Civ. P.

34(a)(1)(A). A draft or non-identical copy is a separate document within the meaning of this term.

6. “Person” shall mean any individual, corporation, proprietorship, partnership, trust, association or any other entity.

7. When referring to a person, “to identify” means to give, to the extent known, the person’s full name, present or last known address, and when referring to a natural person, additionally, the present or last known place of employment. Once a person has been identified

2 in accordance with this subparagraph, only the name of that person need be listed in response to subsequent discovery requesting the identification of that person.

8. When referring to documents, “to identify” means to give, to the extent known, the (i) type of document; (ii) general subject matter; (iii) date of the document; and (iv) author(s), addressee(s) and recipient(s).

9. “Refer” or “relate” or “pertain” shall mean concerning, describing, evidencing, rebutting, constituting, or in any way logically or factually connected with the matter discussed.

10. “Concern” or “concerning” shall mean relating to, referring to, describing, evidencing, rebutting, constituting, or in any way logically or factually connected with the matter discussed.

11. The terms “all,” “any,” and “each” shall each be construed as encompassing any and all.

12. The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope.

13. The use of the singular form of any word includes the plural and vice versa.

14. If any document requested to be produced was but is no longer in your possession or control or it is no longer in existence, state whether it is:

a. Missing or lost,

b. Destroyed,

c. Transferred voluntarily or involuntarily to others and, if so, to whom, or

d. Otherwise disposed of, and in each instance explain the circumstances surrounding the authorization for such disposition thereof and state the approximate date thereof.

3 15. Produce each document and all non-identical copies including copies with marginal notes or deletions, known or available to you, regardless of whether these documents are possessed directly by you or any of your employees, agents, representatives, investigators or by your attorneys or their agents, employees, representatives, or investigators.

16. The following Document Requests refer to all documents directly or indirectly in the possession, custody or control of you, including documents in the possession, custody or control of any of your representatives, attorneys, or agents.

17. If the documents sought by a particular request cannot be produced in full, produce them to the extent possible, stating your reasons for your inability to produce the remainder.

18. If any document covered by these Document Requests is withheld by reason of a claim of privilege or otherwise, notice shall be given that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document;

(3) the date of the document; (4) the author; (5) the addressee or recipient; (6) the grounds for refusal to produce the document; and (7) such other information as is sufficient to identify the document for a subpoena duces tecum.

19. Where an objection is made under any section of the Federal Rules of Civil

Procedure, the objection shall state with specificity all grounds. Any ground not stated in an objection within the time provided by the Federal Rules of Civil Procedure, or any extensions thereof, shall be waived.

4 20. These Document Requests are deemed to be continuing in nature. If after production of documents you obtain or become aware of a further document responsive to these

Document Requests, you are required to produce such additional documents.

21. Upon failure to fully comply with these Document Requests, Defendant reserves all rights to move to compel, seek appropriate sanctions or upon the trial of this action or anytime before, to object to or move to preclude the introduction of any of the items of information requested herein and not produced, or to take any other action that may be deemed appropriate.

DOCUMENTS REQUESTED

1. All documents, whether favorable or unfavorable, that refer, relate or pertain to any allegations or claims made by you in the Complaint.

2. All documents that refer or relate to your employment with [DEFENDANT].

3. All documents concerning any lawsuit brought by you or on your behalf, including, but not limited to, any lawsuit alleging any type of employment discrimination

(whether sex, race, age, disability, national origin, religion or otherwise), harassment, hostile work environment, retaliation, mental anguish, personal injuries, impaired work capacity, lost earning capacity, past or future lost wages, workers’ compensation claims, bodily injuries, wrongful discharge, workers’ compensation retaliation, unlawful discharge for whistleblowing or refusing to perform an illegal act, assault, battery, or invasion of privacy by anyone, as well as all documents concerning settlement of any lawsuit(s) brought by you or on your behalf.

4. All documents concerning complaints or charges filed by you or on your behalf with the U.S. Equal Employment Opportunity Commission, the New Jersey Division on Civil

Rights, the National Labor Relations Board, and/or the Occupational Safety and Health

Administration, including, but not limited to, all charges, amended charges, complaints, amended complaints, position statements, notices, or affidavits by you or on your behalf.

5 5. All documents concerning any alleged discriminatory, harassing or retaliatory conduct by [DEFENDANT].

6. All audio, digital, video, and/or other recordings or other transcription constituting any statement made by any party, their agents or representatives, or third person that refer, relate or pertain to the allegations or issues in this action.

7. All personal records, diaries, journals, calendars (including electronic calendars), date books, appointment books, notes, chronologies or the like made or maintained by you or any individual at your direction from September 2009 to present.

8. All documents that refer, relate or pertain to complaints or claims made by you or on your behalf concerning [DEFENDANT].

9. All correspondence or any other form of written communication between you and

[DEFENDANT].

10. All documents identified in your responses to Defendant’s First Set of

Interrogatories to Plaintiff.

11. All documents you relied upon in drafting and formulating the claims and allegations in your Complaint.

12. All documents concerning the allegations contained in paragraph 5 of the

Complaint that “[a]ll conditions precedent to the institution of this suit have been fulfilled.”

13. All documents concerning the allegations contained in paragraph 18 of the

Complaint that “[PLAINTIFF] had made complaints to Defendant, including by and through foreman/supervisors, [NAMES].”

14. All documents concerning the allegations contained in paragraph 24 of the

Complaint that “[t]wenty five (25) employees of Defendant were laid off at approximately the

6 same time. It is believed and therefore averred that the majority, if not all of those laid off were

of Dominican decent. This occurred within weeks of additional hires of non-Dominican

employees.”

15. All documents concerning the allegations contained in paragraph 27 of the

Complaint that “[t]he actions of Defendant’s employees, servants, workman, supervisors were

with the intent of causing and were in reckless disregard of the probability that their actions

would cause [PLAINTIFF] severe emotional distress.”

16. All documents concerning the allegations contained in paragraph 45 of the

Complaint that “[DEFENDANT] carelessly negligently and/or recklessly failed to properly

supervise its employees including but not limited to supervisory personnel. . . .”

17. All correspondence or any other form of written communication created by you or on your behalf concerning any allegations of discrimination, harassment, and/or retaliation.

18. All statements, written or recorded, of any person having knowledge of facts

relevant to the subject matter of this action including but not limited to any current or former

employee or agent of [DEFENDANT].

19. All photographs and/or videotapes, real evidence, objects and things depicting or

supporting any of the allegations in your Complaint, or any wrongdoing by [DEFENDANT] or

its employees or anyone connected with [DEFENDANT].

20. All documents received by you from [DEFENDANT] that refer, relate or pertain

to your employment with [DEFENDANT] or your claims or alleged damages in this action.

21. All documents sent by you to [DEFENDANT] that refer, relate or pertain to your

employment with [DEFENDANT] or alleged damages in this action.

22. All documents you intend to introduce as exhibits at the trial in this matter.

7 23. All documents that support your claim for damages, including compensatory and

punitive damages, as well as the calculation for those damages and the source of the materials

upon which those calculations have been or may have been based.

24. All federal, state and/or local tax returns filed by you or on your behalf from

January 1, 2011 to the present.

25. All documents concerning your application(s) for employment from December

2011 to present, including, but not limited to, job applications, resumes, and letters or other

correspondence to prospective employers concerning employment.

26. All newspaper ads, want-ads, magazines, job postings, job listings or other documents that relate to [DEFENDANT], or that you read in an attempt to find employment, from December 2011 to the present.

27. All documents concerning any consultations, conferences, examinations, or treatments that you sought, received, or underwent from any physician, psychiatrist, psychologist, chiropractor, acupuncturist, therapist, social worker, counselor, religious advisor

(for example, minister, priest, rabbi, or imam) and/or other medical, healthcare or religious

personnel or practitioners from January 1, 2001 to the present.

28. All hospital bills, bills from medical facilities, doctor bills, health care bills, bills

from persons practicing the healing or medical arts, prescription charges, reports, or other

documents indicating expenses incurred by you as a result of any alleged injuries for which you

seek recovery in this action.

29. All documents, including all tangible reports, drafts of reports, correspondence,

models, compilations of data or all other materials provided to, reviewed by, or prepared by an

expert or for an expert in anticipation of the expert’s trial and/or deposition testimony.

8 30. All invoices or contracts you have received or entered into with any expert you intend to call at the trial of this matter.

31. To the extent not otherwise called for by any other request for production, all documents concerning your allegations of discrimination, harassment, or retaliation in this action.

32. To the extent not otherwise called for by any other request for production, all documents that refer, relate or pertain to your employment with [DEFENDANT], your claims against [DEFENDANT], and/or your alleged damages.

Dated: [DATE] Respectfully Submitted,

______[ATTORNEY NAME FIRM NAME AND ADDRESS]

Attorneys for Defendant [DEFENDANT NAME]

To: [OPPOSING COUNSEL NAME ADDRESS]

Faculty Biographies

LOUIS PECHMAN PECHMAN LAW GROUP PLLC 488 MADISON AVENUE NEW YORK, NEW YORK 10022 (212) 583-9500 [email protected] WWW.PECHMANLAW.COM

Louis Pechman practices before federal and state courts and government agencies in all areas of workplace law, including employment discrimination, sex harassment litigation, union-management relations, employment contracts, non- competition agreements, independent contractor issues, and overtime and pay disputes. As a practitioner with over thirty years of labor and employment law experience, Mr. Pechman offers both individual employees and employers practical guidance on improving the employment relationship and, where appropriate, terminating that relationship.

Mr. Pechman has been selected by his peers for inclusion in The Best Lawyers in America and as a New York Super Lawyer in the area of Labor and Employment Law since 2006. Mr. Pechman is AV-rated by Martindale-Hubbell and has received a ”Superb” rating from Avvo. He has also been selected as a Fellow of the American Bar Association, an honorary organization limited to 1% of attorneys who have demonstrated outstanding achievements and dedication to the highest principles of the legal profession. Pechman Law Group PLLC is rated by Best Lawyers as a Tier 1 firm in the area of Labor & Employment Law.

Mr. Pechman moderates annual programs at the New York County Lawyers’ Association on “How to Handle an Employment Discrimination Case” and “How to Handle a Wage and Hour Case.” He has also lectured on employment law topics at the Practicing Law Institute, the American Bar Association, and Bloomberg BNA.

Mr. Pechman is one of the most experienced practitioners in New York in the fast emerging area of wage and hour law. Over the past decade, he has litigated over 200 federal and state court cases involving claims under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law. Mr. Pechman is also the founder of waiterpay.com, a site that focuses on the complex wage and hour issues in the New York restaurant industry. He currently serves as Chair of the Restaurant and Hospitality Law Committee of the New York City Bar Association.

Mr. Pechman is a graduate of the Cornell University School of Industrial and Labor Relations and Fordham University School of Law. Hollis Pfitsch

Hollis Pfitsch is Deputy Commissioner of the Law Enforcement Bureau of the New York City Commission on Human Rights. From 2006-2015, Hollis was a Staff Attorney in The Legal Aid Society's Employment Law Unit. She began her tenure at Legal Aid as a Skadden fellow after clerking for Magistrate Judge Ronald L. Ellis in the Southern District of New York. She received her J.D. from CUNY School of Law. Hollis has served as a member of the New York City Bar Association's Lesbian, Gay, Bisexual and Transgender Rights Committee and the conference committee for the National Employment Lawyers' Association - New York chapter. She is also an occasional adjunct professor at CUNY School of Law.

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Advocates for Workplace Fairness

full bio vcard LinkedIn

GREGORY S. CHIARELLO is an associate at Outten & Golden LLP in New York. He is Co-chair of the Family Responsibilities & Disabilities Discrimination Practice Group and a member of the Sex Discrimination and Sexual Harassment Practice Group. He represents employees in litigation and negotiation in all areas of employment law, including discrimination, retaliation, wage & hour violations, unpaid bonus claims, professional contracts, and executive compensation.

Prior to joining the firm in August 2014, Mr. Chiarello was an associate attorney at Vladeck, Waldman, Elias & Engelhard, P.C., where he litigated a variety of employment matters in state and

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federal court. Before that, Mr. Chiarello represented indigent criminal defendants on appeal as a staff attorney at the Office of the Appellate Defender, arguing more than 20 appeals in the New York Supreme Court, Appellate Division, First Department.

Mr. Chiarello received his B.A. with highest honors from Rutgers University in 2001, and his J.D. from Brooklyn Law School in 2006, where he was a Carswell Merit Scholar. While in law school, Mr. Chiarello interned with a number of public interest organizations, including with the Legal Aid Society Guilty Plea Appellate Project, where he drafted an amicus brief in a matter pending before the New York State Court of Appeals.

Mr. Chiarello is admitted to practice in New York and New Jersey, and in the Federal District Courts of the Southern, Eastern, and Northern Districts of New York and the District of New Jersey. He is Co-chair of the Labor Relations and Employment Law Committee of the New York County Lawyers Association, and an active member of the American Bar Association, and the National Employment Lawyers Association (NELA) and its New York Affiliate (NELA/NY).

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S. Jeanine Conley Partner

New York T 212.589.4635 | F 212.589.4201 [email protected]

Services “We had three lines - political, legal, and financial - that had to ◾ Employment Litigation intersect to preserve my thriving business. With Jeanine's terrific ◾ Employment Counseling ◾ White Collar Defense and legal work being critical, [they came together] at the right time.” Corporate Investigations — Brendan Quinn, Ernest Maier, Inc. ◾ Complex Commercial Litigation ◾ Whistleblower and Compliance Jeanine Conley, an experienced trial lawyer and member of the firm's employment Prior Positions group, has represented Fortune 500 and many of the nation's leading companies in employment-related disputes and internal investigations. Jeanine regularly ◾ The Honorable William G. counsels clients and conducts internal investigations on a wide-range of Bassler , the United States District Court for the District of employment, compliance and regulatory issues, including, for instance, New Jersey: Clerk whistleblower, retaliation, discrimination and wrongful termination claims, and ◾ Arnold & Porter LLP federal and state wage and hour matters as well as off-label marketing, accounting Admissions fraud, insider trading, and kickback violations. Jeanine's clients have called on her to defend them before numerous government agencies, counsel them on all ◾ U.S. District Court, Southern aspects of employment law from hiring to termination, and efficiently and District of New York, 2003 effectively resolve disputes by obtaining favorable settlements, summary ◾ U.S. District Court, Eastern judgment, or achieving victory at trial. District of New York, 2004 ◾ U.S. Court of Appeals, Federal Jeanine has been acknowledged for her achievements on numerous occasions Circuit, 2004 and is the recipient of The Network Journal's "40 Under Forty" Award for 2013 and ◾ U.S. Supreme Court, 2009 was named one of the "Nation’s Best Advocates: 40 Lawyers Under 40" by the ◾ U.S. Court of Appeals, Second Circuit, 2010 National Bar Association and IMPACT in 2012. She was also named one of the ◾ New York, 2003 "Top 10 to Watch" by On Being A Black Lawyer (OBABL) in 2012 and received the Diversity Champion Award from the New York City Bar in 2011. Jeanine is the Education Hiring Partner for summer and fall recruitment for the firm's New York office and ◾ J.D., Georgetown University Law co-chair of its Community Outreach and Diversity and Inclusion Committee. Center, 2002 ◾ B.S., University of North Carolina Experience at Chapel Hill, 1998 ◾ Jeanine won a full defense verdict for a client in the hospitality industry in a race discrimination and hostile work environment action. Although Jeanine was retained weeks before trial, she was able to mount a strong defense, which convinced the jury that her client was not liable for the emotionally charged conduct that plaintiff claimed occurred.

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◾ In an age and gender discrimination matter against a Fortune 500 client in the healthcare industry, Jeanine obtained summary judgment. A federal court judge in Connecticut held that in light of the evidence before it, a reasonable jury could not conclude that plaintiff's rights under the ADEA were violated and that plaintiff’s conclusory allegations without more evidence were insufficient to meet the mixed-motive burden to prove gender discrimination. ◾ Jeanine obtained a favorable settlement in a prevailing wage action for her client, a small business owner who subcontracted work with hospitals in New York City. Jeanine relentlessly maintained that her client should not be held primarily responsible for the damages plaintiffs claimed they endured and her persistence proved invaluable to the client. ◾ After an employee reported to the owner of a large beverage wholesaler that the employee's superior had engaged in financial misconduct, Jeanine worked with other BakerHostetler attorneys and a team of forensic accountants to immediately conduct an internal investigation to determine the extent of the theft and need for further employment action. By developing a thorough strategy from the onset and executing it efficiently and promptly, yet with caution given the highly sensitive nature of the matter, the team successfully prevented further loss for the company, uncovered the source of millions of dollars of theft from the company, permanently terminated employees involved, helped restore the confidence of the remaining employees in the management of the company, and protected the company's reputation and customer relationships. ◾ Jeanine represented a number of employees of a major pharmaceutical company in a qui tam investigation and related litigation. Jeanine obtained a favorable result for the employees who the government decided not to pursue further for alleged off-label marketing and anti-kickback violations. ◾ Jeanine secured a victory after a bench trial in New York State Supreme Court for a Fortune 500 company sued for breaches of representations and warranties contained in the purchase and sale agreement following the acquisition of one of its manufacturing facilities. After the trial, the judge rendered an opinion holding that the claims were meritless in all regards. ◾ Jeanine is a member of the BakerHostetler team that serves as counsel to the SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, working on the global investigation of the Ponzi scheme–the largest financial fraud in history–and related litigation matters seeking recoveries for the Customer Fund.

Recognitions

◾ Chambers Women in Law: "Outstanding Contribution to Furthering the Advancement of Minority Lawyers" Award (2015) ◾ The Network Journal "40 Under Forty" (2013) ◾ National Bar Association and IMPACT's "Nation’s Best Advocates: 40 Lawyers Under 40" (2012) ◾ OBABL "Top 10 Attorney to Watch" (2012) ◾ New York City Bar Association "Diversity Champion" Award (2011) ◾ New York "Super Lawyer" (2013 to 2015) ◦ New York Super Lawyers "Rising Stars" Top Women Lawyers (2012)

Memberships

◾ National Bar Association ◾ American Bar Association

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◾ New York State Bar Association: Alternate Dispute Resolution and Labor and Employment Committees ◾ New York City Bar Association: Committee on Minorities in the Profession, Chair ◾ Former Delegate to the New York State Bar's House of Delegates ◾ Association of Black Women Attorneys: Past President ◾ Council of Urban Professionals: Alumni Fellows Board ◦ Former Fellow

Community

◾ Urban Assembly School for Criminal Justice: Advisory Board ◦ Former Chair ◾ Legal Momentum: Board of Legal Advisors ◾ New York Urban League: Board Member

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