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Paul Zimmerman
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NY Employer Alert: Human Rights Division Expands Scope of Discrimination Law

Ben Franklin advised colonists to "Be civil to all; sociable to many; familiar with few; friend to one; enemy to none." He may have offered similar advice today, following the adoption of a new regulation by the New York State Division of Human Rights, prohibiting discrimination based on an individual’s relationship or association with a member of a protected class. The regulation applies to all areas of the New York State Human Rights Law, including public accommodations, employment, purchase or rental of housing or commercial property, access to educational institutions, and credit. Notably, under this new “associational discrimination” theory, an employee may support a claim before the Human Rights Division based on the assertion that she was discriminated against because of the characteristics, activities and beliefs of her friends or family.

In order to prove a claim of employment discrimination under this new rule, an individual must demonstrate that he or she was subjected to an adverse employment action based on the individual’s known relationship or association with a member of a protected class. This includes discrimination against any individual based on “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.” The expanded regulation reflects recent Supreme Court precedent that provides anti-discrimination protection to individuals who are associated with members of a protected class. See Thompson v. North American Stainless, LP, 562 U.S. 170 (2011). 

In a press release announcing the new regulation, the Human Rights Division provides the following example of potential employment-related conduct that would now be prohibited: “job seekers may not be denied employment because of the gender identity, transgender status, or other protected characteristics of their spouses.” This is just one of numerous potential examples of employment practices prohibited under the new law.

Employers in New York State should review their policies to ensure compliance with the adopted regulations, being sure to add appropriate language prohibiting associational discrimination, and train their management personnel regarding this new law. Indeed, this expansion of the New York Human Rights Law highlights the importance of basing all employment decisions on legitimate reasons that are supported by demonstrable facts. Training should emphasize the importance of applying workplace policies and standards fairly and consistently. Moreover, when contemplating any adverse employment action, employers should carefully examine and document the non-discriminatory reasons for such action, and ensure such reasons are clearly unrelated to the employee’s membership in a protected category or relationship or association with someone within a protected category.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.