Free Case Review and Videoconferencing Options Available

Articles Posted in Workplace Discrimination & Harassment

In recent years, states throughout the nation have expanded protections for employees in the workplace. Most recently, Texas Governor Greg Abbot signed two new bills (SB 45 and HB 21) that went into effect on September 1, 2021. The laws give employees new protections against sexual harassment in the workplace and implements key revisions to preexisting state law.

First, the definition of an “employer” has expanded. Previously, an employer had to have 15 or more employees to be covered by the anti-sexual harassment laws. As of September 1, 2021, the law defines an “employer” as a person who employs “one or more employees.” Under this revised definition, all employers including those with as few as one employee could be held liable for damages for workplace sexual harassment. To this end, virtually all Texas employers are now within the statute’s reach, resulting in far more Texas employees being able to sue for sexual harassment.

The legal definition of “employer” was further expanded for purposes of sexual harassment claims to include a person who “acts directly in the interest of an employer in relation to an employee.” Before this amendment, only a business could be the subject of a sexual harassment lawsuit. Now supervisors, managers, and co-workers may also be named defendants in sexual harassment lawsuits and could potentially be held individually liable for damages. It is unclear whether this definition will be extended to independent contractors, consultants, or advisors of a business. Nevertheless, an employer should look into reviewing their vendor and service agreements with contract partners for issues of potential liability.

Towards the end of September 2019, the New York City Commission on Human Rights (NYCCHR) released a series of guidelines to inform New York City employers what constitutes discrimination on the basis of immigration status and national origin.  With the delicacy of current debate about immigration policy attention to these guidelines is particularly important.

These new guidelines include the following important guiding statements:

  • Discrimination or harassment in favor of U.S. citizens over other work-authorized individuals is generally prohibited.

            When a public employee is a victim of employment discrimination, there are generally several ways in which he/she may pursue his/her claim. One method is by suing under Title VII of the Civil Rights Act of 1964, a statute that focuses on employment discrimination claims for both public and private employers. Also available, for some, is §1983 of the federal civil rights statute, which may afford a plaintiff greater monetary relief than is allowed under Title VII. A plaintiff may only sue under § 1983 when her employer is the government “acting under color of state law” – so this option is for those employed by public schools, universities, local government agencies or similar government-owned entities. However, a new ruling from the Second Circuit has limited the viability of the § 1983 path.

Issued by the United States Court of Appeals for the Second Circuit on August 12, 2019, Naumovski v. Norris creates stark distinctions between the treatment of gender discrimination cases under Title VII and §1983. In Norris, the Second Circuit ruled that the correct burden of proof under § 1983 for sex discrimination claims is “but-for” causation, meaning that sex discrimination must be the determining factor in the adverse action against a plaintiff. This is a stricter burden of proof than is required for Title VII which requires only that sex discrimination be a “motivating factor” in an adverse action against an employee. This higher burden will, of course, make success under §1983 more difficult.

In addition to establishing a higher burden of proof for § 1983 cases, the Norris court also ruled that there is no vicarious liability for employers under § 1983, unlike Title VII. Norris also left a wrinkle in interpreting the definition of “gender discrimination” under § 1983. Specifically, one may wonder what the holding of Norris means for plaintiffs who are the victim of employment discrimination based on their sexual orientation. Under a separate Second Circuit decision, Zarda v. Altitude Express, Inc., sexual orientation discrimination is considered to be a subset of gender discrimination under Title VII. This ruling does not clarify whether the new standards established by Norris affect sexual orientation discrimination cases, as Zarda interprets Title VII not § 1983. The court in Norris offered very little assistance in clarifying this issue under § 1983.  This leaves much uncertainty as to whether the same challenges for gender discrimination claims under § 1983 also apply to sexual orientation discrimination cases.

Featured In
Connecticut Law Tribune
abc News
Fox 5
Greenwich Time
New York Law Journal
New York Post
Stamford Advocate
New York Times
The Village Voice
Contact Information