In 2015, the State of New York added “familial status” as a class of persons protected under state discrimination laws, prohibiting discrimination against pregnant employees and employees with minor children. On May 4, 2016, the New York City Human Rights Law (“NYCHRL”) will add a new protected class that offers an even greater degree of protection. The NYCHRL will be expanded to protect “caregivers” from employment discrimination based on one’s actual or perceived status as a “caregiver.”
As amended, the NYCHRL will add “caregivers” to the increasing number of classes already covered under the law, including age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The NYCHRL defines the term “caregiver” as “a person who provides direct and ongoing care for a minor child or a care recipient.” The NYCHRL stops short of defining what “direct and ongoing care” means, leaving employers without guidance until either the NYCHRL provides clarification or the courts interpret the meaning. “Covered Relatives” are broadly defined to include the following disabled persons residing in the caregiver’s household: children (including adopted, foster, or otherwise), spouses, domestic partners, parents, siblings, grandchildren or grandparents, children or parents of the caregiver’s spouse or domestic partner, or any other individuals in a familial relationship with the caregiver. Practically speaking, the amendment’s intertwining definitions provide that a “caregiver” includes any employee providing ongoing care for a minor, a disabled relative or a non-relative living in the caregiver’s house.
As with the other protected classes, extending legal coverage to caregivers prohibits employers from discriminating against caregivers with respect to job advertising, job applications, pre-employment inquiries, hiring, compensation, or the terms and conditions of employment. While the employee must still be able to perform the essential functions of his or her job, caregivers cannot be terminated, demoted, or denied a promotion because of their status or perceived status as a caregiver.
The new amendment does not address whether employers have the right to request proof of an employee’s caregiver status and is silent on whether employers are obligated to provide caregivers with reasonable accommodations. To the latter, it remains to be seen if the NYCHRL follows New York State’s lead as to “familial status” discrimination, where the employer is not required to accommodate the needs of the child or children, and is not required to grant time off for the parent because of a child’s needs, or to attend school meetings, concerts, sporting events, etc., as an accommodation. The takeaway here is that employers should uniformly apply company policies and procedures to all employees, regardless of the employee’s class status.
NYCHRL guidance is expected to be released shortly before the amendment goes into effect on May 4, 2016. To prepare, New York City employers should consider expanding their anti-discrimination policies, anti-harassment policies, and associated training materials to include caregivers.