Employer Liability Broader Under NYC Human Rights Law

Employers with offices in New York City need to be aware of important provisions of the New York City Human Rights Law (“NYCHRL”) which have the effect of creating much broader legal exposure for, among other things, unlawful discrimination and gender-based harassment claims, than under either state or federal law.

As of May 9, 2018, the NYCHRL’s prohibition against gender-based harassment has been extended to all employers, regardless of size, whereas previously, it pertained only to those employers having four or more employees.

Of greater significance, Section 8-102(5) of the NYCHRL includes within the scope of its protection against illegal discrimination in the workplace, independent contractors who carry out work in furtherance of an employer’s business enterprise and who are not themselves employers. In doing so, this law extends an employer’s legal responsibility and corresponding exposure beyond that of state or federal law, which only protect “employees” from illegal discrimination in the workplace.

From the inverse perspective, NYCHRL Section 8-107(13)(c) provides that an employer can be held liable for an unlawful discriminatory practice committed by an independent contractor who is carrying out work in furtherance of the employer’s business enterprise where, (1) the discriminatory conduct was committed in the course of such employment and (2) the employer had actual knowledge of and acquiesced in the conduct. While employers must be cognizant of this potential liability codified in the New York City Administrative Code, this liability already exists at both the state and federal levels. An employer’s obligation to protect its employees from illegal discrimination or harassment has traditionally extended to the conduct of its independent contractors and, indeed, to others to whom its employees are regularly exposed in the course of their employment.

While it is important for employers to be aware of and to take steps to address all sources of potential legal exposure, the obligation under the NYCHRL to now protect independent contractors from illegal discrimination in the workplace creates a material expansion of an employer’s legal exposure. This is particularly significant for those employers who make regular use of independent contractors in their workforce. Accordingly, it is important for employers to assess these relationships and to ensure that proper protections are in place, including, at a minimum, adopting a formal written policy designed to protect one’s independent contractors from illegal discrimination in the workplace. New York City employers should confer with knowledgeable legal counsel to understand their legal obligations and to ensure all appropriate protections are in place.

If you have questions or wish to discuss how these changes may affect your business, please contact Scott Centrella in our Employment Practices Group at scentrella@dmoc.com.