Kovel Law Chronicle Vol. 4: Let's talk about discrimination.
As a solo entrepreneur working in New York City, did you know that you are a part of a small minority of independent contractors in America who are protected from discrimination in your workplace? Initially, statutory protections against employment discrimination applied only to “employees†in New York City. This limitation was used by countless companies as a shield to permit and condone acts of discrimination against solo entrepreneurs. Now, with the 2019 passing of the Local Law 172, which created New York City Human Rights Law Sec. 8-107(23), you are protected from discrimination regardless of whether you are an employee or freelancer. But what is unlawful employment discrimination? Letâ€
s talk about it and how the law works.
New York City Human Rights Law Sec. 8-107(1)(a) provides: “It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service or alienage or citizenship status of any person:
(1) To represent that any employment or position is not available when in fact it is available;
(2) To refuse to hire or employ or to bar or to discharge from employment such person; or
(3) To discriminate against such person in compensation or in terms, conditions or privileges of employment.â€
Sec. 8-107(23) further provides: “The protections of this chapter relating to employees apply to interns, freelancers, and independent contractors.â€
In its simplest terms, and trust me nothing about employment discrimination is simple, to be protected by this law you will need to demonstrate that you: (a) experienced “adverse employment action†(b) “because of (or at least in part because of)†(c) the companyâ€s discriminatory bias or “animus†against you (d) regarding one or more of your “protected categor(ies)†enumerated in the statutory language above. As you can see, the analysis can be broken down into four-parts, but you need to demonstrate ALL FOUR parts to be protected.
Generally, the most difficult parts to demonstrate are how you know that the person or people who negatively impacted your work have discriminatory bias and how that bias played a role in the adverse employment action you endured. Your coworkers or supervisors DO NOT need to tell you that they donâ€t like you because of your race, gender identity, sexual orientation, etc., or make a negative comment about the protected category in general. Discriminatory bias can also be demonstrated through actions, even when those actions are insidious. But you still need to demonstrate these parts of the analysis. This is one reason why speaking with legal counsel experienced with handling employment discrimination matters can make all of the difference.
When you sign a service agreement with Company X you sign up for using your skills for Company Xâ€s benefit. You do not sign up for unwelcome comments about your hair, body, skin, religion, gender identity, sexual orientation, or any of the other myriad characteristics that make you, you. After all, what does your sexual orientation, for example, have to do with the fact that you are an expert in your craft? Nothing. Your sexual orientation is unrelated to your ability to get the job done well. When the discriminatory bias of others in the company negatively affects your pay, your self-worth, or your ability to get the job done, the New York City Human Rights Law may kick in to protect you.
Letâ€s talk about what happened to you at work as soon as possible. If youâ€re still in the workplace, the next steps we plan together can potentially make the difference in salvaging the relationship. (Although to be clear, I have done this work long enough to know no one can guarantee any result for you!) If youâ€ve been let go, you may be entitled to compensation for the way in which you were treated and then dismissed.
Letâ€s make the case for a better workplace for you and others.
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