California Employers: What You Need to Know for 2014 – Discrimination and Retaliation

A new year means new legislation and regulations for employers with operations in California.  Prepared by Kate Gold, partner in the Los Angeles office, and Alexis Burgess, associate in the Los Angeles office, this-four part series will take a look at some of the new laws and regulation affecting private employers doing business in California.  Today we look at new laws and regulations in California dealing with discrimination and retaliation.

Discrimination and Retaliation

Retaliation.  AB 263 expands employer liability for violating Labor Code 98.6, which currently protects employees from discharge or discrimination when they have asserted their rights under the Labor Code.  As amended, the law will:

  1. Prohibit any retaliation or adverse action against employees who have asserted any right under the Labor Code or who have updated or attempted to update their “personal information” in a manner unrelated to their skill set, qualifications, or knowledge required for the job;
  2. Expand protected activity to include a written or oral complaint by an employee that they are owed unpaid wages; and
  3. Provide a civil penalty to employers of up to $10,000 per employee per instance of retaliation.

New protected class.  AB 556 adds “military or veteran status” to the list of classes protected from employment discrimination under the Fair Employment and Housing Act.

Sexual harassment.  SB 292 clarifies that sexually harassing conduct is unlawful under FEHA regardless of whether the conduct is motivated by any sexual desire.

Whistleblower protections.  Labor Code 1102.5 prohibits employers from retaliating against employees who report violations of a state or federal rule or regulation to a government agency, except for employees with duties related to company compliance.  SB 496 extends whistleblower protections to employees with compliance duties and expands protected activity to include:

  1. Reports alleging a violation of a local rule or regulation; and
  2. Internal complaints to “a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or non-compliance.”

The new law also clarifies that retaliation is prohibited when the employer “believes the employee disclosed or may disclose information.”

Make sure to check out the first post in this series on new Wage and Hour Laws and Penalties.

Employer Liability Under State Medical Marijuana Laws

By: Cheryl D. Orr and Francesco Nardulli

Across the country, employers in states allowing medical marijuana use have been grappling with whether these statutes impact employer policies concerning drug testing and maintaining a drug-free workplace.  Though the statutes allow for marijuana use for medical purposes (and some for recreational purposes), these statutes do not consistently address the impact of legal medical marijuana on employers, if at all.  And the number of states enacting such legislation is continuing to grow.

Since 1996, 20 states[1] and the District of Columbia have enacted some form of legislation that allows for the non-criminal use of marijuana for medical purposes.  In fact, in the last three years, eight states have passed medical marijuana laws – and Illinois became the 21st jurisdiction to legalize medical marijuana when Governor Quinn signed HB 1 into law on August 1.

As such, companies that employ individuals in states with medical marijuana may be uncertain as to whether or under what circumstances they can take action with respect to an employee that fails a drug test or otherwise admits to being a medical marijuana patient.

Civil Protections – Where Do We Stand Today?  

Most of the states that have enacted a medical marijuana law have statutory language that is silent about medical marijuana patients’ civil protections.  Of the 21 jurisdictions that have medical marijuana on the books, 15 do not provide for any form of employment protections.[2]  In fact, supreme courts in California, Oregon, Washington and Montana have all upheld employer decisions to discharge employees that were medical marijuana patients.  The plaintiffs in these lawsuits have argued that medical marijuana users are protected under such statutes because the law itself creates the sought-after employment protections, that the employer’s decision to discharge the user violates the public policy of the state, and/or that the employer discriminated against them on the basis of a disability when it failed to accommodate their medical marijuana use.  The courts, in response, have held that the medical marijuana statutes in their state only protect patients from criminal sanctions and do not create any civil remedies or protections.  As such, the courts have held that these statutes do not create a clear public policy that might otherwise support a wrongful termination claim or establish that medical marijuana users belong to a protected class.  With respect to claims based on asserted disabilities, courts, like the Supreme Court of Oregon, have held that federal law preempts any argument that an individual is protected from disability discrimination on the basis that they are a medical marijuana patient.

Another argument that was recently tested by a plaintiff in Colorado is that an employer’s decision to discharge a medical marijuana user who fails a drug test violated the state’s “lawful activities” statute.  Colorado, like many states, prohibits employers from taking action against an employee for engaging in lawful activities or using lawful products outside of the workplace.  In a decision dated April 25, 2013, the Court of Appeals of Colorado held that the state’s “lawful activities” statute did not bar the employer from discharging an employee who tested positive for marijuana after a random drug test and who was also a licensed patient.  Coats v. Dish Network, LLC, case nos. 12CA0595, 12CA1704 (Co. Ct. App. April 25, 2013).  The court held that since the Colorado statute did not specify whether an activity’s “lawfulness” was determined by state or federal law, and marijuana is illegal under federal law, employees that use medical marijuana are not shielded by the statute from the risk of termination.

Despite the lack of civil protections in a majority of jurisdictions that have legal medical marijuana, a few states do provide clear restrictions on an employer’s ability to discriminate against a medical marijuana patient.  In Connecticut, Maine and Rhode Island, medical marijuana patients are given protected status and employers are prohibited from discriminating against an employee merely due to their status as a medical marijuana patient.  Under Illinois’ HB 1, Illinois also now prohibits such discrimination.

In addition, Arizona and Delaware have adopted much more explicit and impactful statutorily language that bars an employer from discriminating against a registered and qualifying patient who has failed a drug test for marijuana metabolites or components.  The only exceptions to this rule are that an employer may act upon the results of a failed drug test if the patient “used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment” or failing to do so would jeopardize an employer’s “monetary or licensing related benefit under federal law or regulations.”  See ARS 36-2813 and Del. Code Title 16, § 4905A.  Neither statute has been tested in the courts, but the language of these statutes appears to plainly prohibit employers from firing an employee who is a qualified medical marijuana patient based solely on a failed drug test.  Rather, in these two states, most employers will need to prove that their decision was based on the fact that the employee used, possessed or was impaired by marijuana while on the job.

Uncertainties Around Illinois Statute

Whether Illinois’ medical marijuana statute provides similar protections is a more uncertain question.  With regard to employer liability under the proposed statute, HB 1’s provisions are generally couched in what they do not prohibit, leaving open to interpretation what it may bar with regard to workplace decision-making.  HB 1 first states that it does not prohibit “an employer from enforcing a policy concerning drug testing, zero-tolerance or a drug free workplace provided the policy is applied in a nondiscriminatory manner.”  The bill also states that employers are not limited from “disciplining a registered qualifying patient for violating a workplace drug policy.”  These initial provisions suggest that Illinois’ statute is in line with the majority of jurisdictions, but then it goes on to provide that “[n]othing in this Act shall limit an employer’s ability to discipline an employee for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.”  This language, like that in Arizona and Delaware, appears to potentially prohibit employers from relying upon a failed drug test for marijuana unless the employer has contrary obligations under federal law or regulation.  The statute continues down this road by also stating that it does not create a cause of action against an employer for actions based on a good faith belief that the medical marijuana user used, possessed or was impaired by marijuana while working.  It also provides that an employer may consider a patient to be impaired when they exhibit “articulable symptoms … that decrease or lessen [the employee’s] performance of the duties or tasks of the employee’s job position.”  This provision further states that if an employee is disciplined under this section, that they must be given an opportunity to contest the employer’s determination.

Taking these latter provisions into account, there are strong arguments in favor of the position that Illinois’ medical marijuana does provide similar civil employment protections as found in Arizona’s and Delaware’s statutes.  First, the bill states that employees cannot sue an employer for actions that were based on a good-faith belief that the employee was impaired, that the belief that an employee is impaired must be based on “articulable symptoms,” and that  employees must have an opportunity to rebut the idea the they were impaired.  These provisions suggest that an employer may be found to have acted in bad faith and subject to liability if it discharges an employee without an articulable basis for why it believed that the employee was impaired or fails to give an employee a chance to challenge an assertion that they were impaired on the job.  In addition, the statute appears to tie the ability of an employer to discipline an employee for failing a drug test to an employer’s obligations under federal law.  This framework creates a plausible argument that the statute does provide protections for medical marijuana users who do not use or are not impaired by marijuana on the job.  However, the pronouncement that employers are not limited in keeping drug testing, zero tolerance, or drug-free workplace policies seems to conflict with such a finding.  Perhaps one way to read these provisions consistently is to find that the statute allows employers to maintain such policies, but that they must treat medical marijuana patients in the same manner as other employees that have been prescribed legal medications.  In reality, the only way we will know the answer to this question is when the law is inevitably relied upon by a qualified patient who is fired for failing a drug test that is positive for marijuana.

Recommendations for Employers in Medical Marijuana Jurisdictions

So, how should employers respond to these increasingly more common medical marijuana laws?  For those employers who have federal contracts or are otherwise subject to federal regulations concerning drug-free workplaces, your practices do not need to change.  According to the Department of Transportation, which regulates and provides drug testing requirements for certain safety-sensitive positions, it is “unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.”  Thus, employers subject to such or similar regulations should continue to comply with applicable federal law.

Employers that are not subject to federal drug testing regulations should review their substance abuse policies to ensure compliance with local and state law.  Employers in states that generally do not provide for employment protections should still consider whether their state has a “lawful activities” or “lawful products” statute or whether courts in their state may be more favorable to finding a clear public policy protecting medical marijuana users.  In light of the holdings of those decisions that have addressed the issue, courts in these states will likely find that their state law does not establish a clear public policy in favor of medical marijuana patients.  However, this analysis may differ in Colorado and Washington, both of which now allow for legal recreational use.  In those states that do provide for some form of employment protection, you should carefully revise your policies to be consistent with those laws.

Employers should also consider whether or when they will conduct drug testing.  With the passage of these laws, employers should expect that more of their employees may be using marijuana outside of the workplace.  Similarly, employers should expect more challenges, based on the long period of time that marijuana metabolites remain in an individual’s system, from employees that have failed drug tests but who claim they were not impaired while working.  In Arizona, Delaware and Illinois, employers should revise their substance abuse policies to make sure they conform to state law and ensure that employees who are qualified patients are not disciplined solely on the basis of a failed drug test.  Lastly, employers should train their supervisors and managers to recognize signs of impairment (whether due to marijuana, alcohol, or other substances) and how to deal with inquiries from employees regarding their use of medical marijuana.


[1] States that provide for some form of legalized medical marijuana states are: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

[2] The six jurisdictions that do provide some level of civil protections are: Arizona, Connecticut, Delaware, Illinois, Maine, and Rhode Island.

NJ Supreme Court Expands The Scope Of Retaliation Claims Under The New Jersey Law Against Discrimination

By: Jerrold J. Wohlgemuth

Under the guise of promoting the “broad remedial purposes” of the New Jersey Law Against Discrimination (“LAD”), the New Jersey Supreme Court recently decided that employees may be protected from retaliation under the LAD even when they complain about offensive sexual comments by a supervisor which would not violate the law because they were not heard by any female employee.  In Battaglia v. United Parcel Service, Inc., the plaintiff objected to his supervisor’s repeated use of crude sexual language during discussions with other men about women in the workplace,  and made a vague reference to that language in an anonymous letter of complaint to management.  The employer investigated the complaints raised in that letter, but did not pursue the issue of offensive sexual comments because the letter was too vague to understand that the reference to “language you wouldn’t use [in] your worst nightmare” was about crude sexual comments.  Management – including the supervisor in question – figured out that plaintiff wrote the letter.  It subsequently conducted a separate investigation concerning certain inappropriate conduct by plaintiff and demoted him from his position as a manager.  Plaintiff then sued for retaliation under the LAD, and included a separate cause of action for retaliation under the New Jersey Conscientious Employee Protection Act (“CEPA”) based on other complaints he had raised concerning alleged fraudulent use of corporate credit cards.

Following a jury verdict for plaintiff, the New Jersey Appellate Division affirmed the jury’s verdict for plaintiff under CEPA but reversed with respect to the cause of action for retaliation under the LAD.  That court observed that the LAD only protects employees who reasonably believe that the employer is engaged in conduct which would be unlawful under the LAD, and that plaintiff had not engaged in protected activity because there was no discrimination or hostile work environment where the comments by the supervisor were not direct to, or heard by, any female employee.

The Supreme Court reinstated the LAD verdict, but vacated the verdict under CEPA because, among other things, the plaintiff admitted he did not believe the credit card use had been fraudulent.  With respect to the LAD cause of action for retaliation, the Court rejected the appellate court’s “narrow interpretation” that the Act only protects employees who complain about “demonstrable acts of discrimination.”  Instead, once again invoking the broad remedial purposes of the Act, the Court found that the jury had sufficient evidence to find that the plaintiff had a “good faith belief” that the supervisor’s crude sexual references to women in the workplace was unlawful under the LAD.  In this regard, the Court observed: “when an employee voices a complaint about behavior or activities in the workplace that he or she thinks are discriminatory, we do not demand that he or she accurately understand the nuances of the LAD or that he or she be able to prove that there was an identifiable discriminatory impact upon someone of the requisite protected class.”

It has long been clear that an employee may pursue a cause of action for retaliation under the LAD even where the underlying complaint of discrimination has no merit.  What is not clear is how an employee could have a reasonable belief that he was complaining about unlawful conduct where that conduct – offensive comments about women made to a group of men – could not possibly be unlawful.  That is compounded in this case by the fact that management could hardly be expected to understand that the plaintiff was complaining about unlawful conduct from the vague reference in his letter.  The opinion reflects the Court’s determination to continue to read the LAD expansively to protect employees from retaliation.  Indeed, the driving factor in this case may be reflected in the Court’s observation that the jury had evidence to support a finding that management not only gave short shrift to the complaints, but responded by imposing discipline against the complainer.

EEOC Warns Employers Against Domestic Violence Discrimination

By: Alejandra Lara

In its recent guidance titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” the EEOC cautions employers against unwittingly violating Title VII and the ADA in addressing employment-related issues involving victims of domestic violence.

The EEOC reminds employers that while Federal law does not expressly protect domestic violence victims from employment discrimination, such victims may still be entitled to protection under federal employment discrimination laws.

In its guidance, the EEOC provides examples of situations where employers may violate Title VII by engaging in disparate treatment, or applying sex-based stereotypes to victims of domestic violence.  For example, an employer that terminates an employee victimized by domestic violence due to fear of the potential “drama battered women bring to the workplace” may engage in discrimination based on sex in violation of federal law.

The EEOC further warns employers to exercise caution before transferring or discharging domestic violence victims based on general concerns that they may pose greater workplace safety risks.  Instead, employers should seek alternate resolutions before taking adverse action, such as paying for workplace security or getting a temporary restraining order.  Even if such options are not effective, an employer should take adverse action against an employee only based on specific and concrete facts showing that the employee poses a threat to other employees.

Further, the EEOC guidance highlights situations in which an employer may violate the Americans with Disabilities Act (“ADA”) in treating employees and applicants adversely based on actual or perceived impairments resulting from domestic or dating violence.  An example of this includes refusing to hire a domestic violence victim “based on a concern that she may require future time off for continuing symptoms or further treatment of depression.”  The ADA may also require an employer to provide employees reasonable accommodations; such as where a victim of sexual assault requests unpaid leave to get treatment for depression and anxiety, but has no accrued sick leave and is not covered by the Family and Medical Leave Act.  In certain situations the employer may have to modify its leave and attendance policies to accommodate the leave request, or risk violating the employee’s rights under the ADA.

Many of the scenarios discussed in the EEOC’s Q&A’s are straightforward and may surprise few employers.  Yet the guidance highlights the agency’s interest in protecting victims of domestic violence, and signals to employers that the EEOC will be paying close attention to these issues.  Finally, while Federal law offers limited protection to domestic violence victims, a handful of States have specific laws either directly protecting victims of domestic violence from employment discrimination, or requiring employers to give employees time off to attend court proceedings, obtain protective orders and/or seek services for the effects of domestic violence.  Employers are well advised to consult the laws of their individual States and otherwise tread lightly when dealing with victims of domestic violence.

 

Yahoo’s Ban on Working from Home: Does it Raise Red Flags For Other Companies?

By: Lynne Anderson

Yahoo’s widely reported decision to require its remote workforce to physically report to one of Yahoo’s office locations – or face termination of employment – has caused a social media stir. Here are some of the common questions, and our thoughts about whether Yahoo’s decision signals a trend applicable to other companies.

Q: Can Yahoo fire its remote workforce if they refuse to return to the office?

A: For the most part – yes.  If employees are employed “at-will,” then they can be fired with or without cause, and without notice. In other words, Yahoo’s statement that they feel the business is best served by the regular, spontaneous interactions resulting from having employees in the office is a legitimate non-discriminatory reason to require employees to return to the offices.  Therefore, any employee who refuses to physically report to a Yahoo office location can be lawfully fired for his/her refusal. Exceptions are generally limited to a circumstance where Yahoo had agreed, in writing, that the employee was guaranteed the ability to work from home.  Another limited exception is if the employee is allowed to work from home for a specified period of time, as a reasonable accommodation for a verified disability.

Q: Does Yahoo’s decision signal that the other industries should re-evaluate the use of remote workers?

A: While it is always productive to re-evaluate the effectiveness of workforce models, a wholesale rejection of the remote worker model does not necessarily serve an industry’s business needs, or risk management objectives.

First, Yahoo’s action is perceived as providing an opportunity to pare down a “bloated” workforce in an effort to limit the need for extensive reductions in force.  Yahoo is betting on there being less morale and legal risk associated with an employee’s resignation vs. an involuntary termination.  While companies may face the business need to ramp down certain departments depending on where they are in the approval process, targeted restructurings are generally a more appropriate response.

Second, many companies, such as Life Sciences companies that are paring down costs as they await FDA approval, use remote workers as a cost-savings method, to reduce office overhead costs. In contrast, it has been reported that Yahoo has “excess” office space that presumably would not be cost-effective to offload or sublease.  Also, the majority of Life Sciences companies are clustered in the areas of metro NY/NJ, Boston, the Bay Area and LA. Clearly, traffic is a significant issue in these areas and working remotely can offset the loss of productivity caused by lengthy daily commutes.

Remote work is also a necessity for many Life Sciences companies.  For example, clinical trials are conducted at investigator sites in the U.S. and around the world.  Employees in clinical operations must not only travel on a regular basis, but the ability to work remotely for much of the time when they are not traveling is valued.  Also, using a remote workforce is a common response to growth and expansion, especially when there is a need to locate your sales force in states outside of company headquarters and manufacturing facilities.

Fourth, most industry jobs do require a Bachelor’s degree, and workforce studies indicate that approximately one-fifth of Life Sciences jobs require an advanced degree.  Clearly, the ability to attract and retain a highly skilled and well-trained workforce has been recognized as a necessity to remain competitive – and that applies to small start-ups and large multi-national pharmaceutical companies.  The ability to work remotely, at least part of the time, can be an effective recruiting and retention tool.

Q: What are the emerging HR issues with regards to the use of remote workers?

A: While mobile technology is a tremendous asset in terms of collaboration, the law does not always keep pace with the cross-over intersection of business and personal use of mobile technology.  As a result, it is a “new frontier” and employers are faced with having to anticipate the potential legal liability. For example, to the extent that your company is monitoring employees’ e-mail/text and other use of mobile technology to ensure productively, it is critical to warn employees that they are being monitored, and they should have no expectation of privacy.  We are also seeing an increasing rise in litigation and employer-adverse agency decisions resulting from employers’ use of information about employees’ non-work activities gleaned from review of their personal Facebook accounts as a basis to discipline or terminate employees.  Also, many states have enacted or proposed legislation that makes it unlawful for an employer to directly or indirectly obtain access to an employee’s Facebook account.  As a result, we recommend that concerns about employee abuse of telecommuting are best addressed by routine and regular performance management, rather than social media spying.

We also recommend proactive management of concerns relating to data confidentiality and network security.  This includes review of existing restrictive covenant agreements to insure that enforceable non-disclosure, non-solicit and, if warranted, non-compete agreements are in place, tailored to protect those assets most critical to your business.  Choice of law provisions also need to be considered when the employee is in a different state or country than the HQ location.  In addition, we recommend providing the equipment used by the remote employee (phone/laptop, etc.), so that equipment – and all the programs and data contained on those devices – can be legally recovered at the end of the employment relationship.  Protocols should also be in place to restrict access to proprietary and other confidential information, to demonstrate that your company has a legitimate need to protect certain information.

Finally, we urge caution when allowing non-exempt employees to work remotely.  Wage and hour laws require that the hours non-exempt employees work are accurately tracked, and that they receive overtime for extra hours recorded, including for hours that the Company was on notice that the employee was working, even if those extra hours were not recorded.  Employers are being deemed as “on notice” when they are aware that the employee is e-mailing or texting supervisors about work during “off-hours” based on the access provided by mobile technology that might not be otherwise available to a non-exempt employee who is not working remotely.

(Editor’s note – This post was distributed as a Drinker Biddle Client Alert on February 27, 2013.  To read other Drinker Biddle alerts and publications click: http://www.drinkerbiddle.com/resources)

Second Circuit Rejects Application of McDonnell Douglas to New York City Human Rights Law – But Grants Summary Judgment Under More Lenient Analysis

By: William R. Horwitz

The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s summary judgment dismissal of a lawsuit that an attorney filed against her former employer alleging race discrimination under federal, state and New York City law.  In Simmons v. Akin Gump Strauss Hauer & Feld, LLP, 2013 U.S. App. LEXIS 1571 (2d Cir. 2013), the Court explained that the trial court had erroneously applied the McDonnell Douglas analysis to a New York City Human Rights Law claim, rather than only to the federal and state claims.  Nonetheless, the Second Circuit concluded that the trial court properly dismissed all of the claims.

Plaintiff Tameka Simmons worked as an associate for defendant law firm, Akin Gump Strauss Hauer & Feld, LLP (“Akin Gump”), from 2007 to late 2009.  In 2009, the firm was “experiencing significant economic difficulties.”  For economic reasons, Akin Gump laid off forty-seven attorneys in March 2009.  In April 2009, the firm announced deferred start dates for incoming associates.  In June 2009, the firm converted a full-time associate to an hourly employee.  At the end of 2009, the firm discharged Simmons.

Simmons filed a lawsuit against Akin Gump in the U.S. District Court for the Southern District of New York.  Her claims included race discrimination in violation of:  (1) Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (3) the New York State Human Rights Law, N.Y. Exec. Law § 296; and (4) the New York City Human Rights Law, NYC Admin. Code § 8-101 et seq.  After discovery, Akin Gump filed a motion for summary judgment.  The district court granted the motion, dismissing the lawsuit in its entirety.  Simmons appealed.

The Second Circuit analyzed the federal and state claims under the “burden-sifting framework” of the McDonnell Douglas case.  In so doing, the Court considered whether Simmons could establish a prima facie case of discrimination by showing:  (1) that she was a member of a protected class; (2) that her job performance was satisfactory; (3) that she experienced an adverse employment action; and (4) “circumstances giving rise to an inference of discrimination” based on her membership in the protected class.

The Court concluded that Simmons could not establish the fourth prong of the analysis, because no evidence gave “rise to a reasonable inference of discrimination due to her race.”  According to the Court, the evidence demonstrated that Akin Gump terminated her employment solely for economic reasons.

In any event, the Court explained, even if Simmons had been able to establish a prima facie case of discrimination, she could not have satisfied the next step in the McDonnell Douglas analysis, which was demonstrating that the firm’s proffered reason for her termination was pretextual.  To satisfy this burden, Simmons would have had to present “sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by [the firm] were false, and that more likely than not discrimination was the real reason for the employment action.”  The Court acknowledged that Simmons provided “some evidence” – such as the “low percentage of African-American associates” in her department of the firm – but it was insufficient.  According to the Court, “[n]o reasonable jury could have found, on this record, that Simmons was selected for the reduction-in-force at least in part because of her race.”

The Second Circuit then turned to Simmons’ claims under the New York City Human Rights Law.  The Court explained that the New York City law “was intended to provide a remedy reaching beyond those provided by the counterpart federal civil rights laws.”  Accordingly, under the City law, Akin Gump could only obtain summary judgment by “showing that, based on the evidence before the court and drawing all reasonable inferences in [favor of Simmons], no jury could find that [Akin Gump] treated Simmons ‘less well’ than other employees at least in part because of her race.”

The Second Circuit observed that the district court had erred in failing to apply this more lenient analysis.  Nonetheless, even under this analysis, the Second Circuit concluded that Simmons could not maintain her claim.  The Court concluded that “Simmons failed to raise a triable issue as to whether she was treated less well than other employees based in whole or in part on discrimination, and not because of the non-discriminatory reasons proffered by [Akin Gump].”

As the Simmons v. Akin Gump case makes clear, the analysis that courts apply to discrimination claims under the New York City Human Rights Law is more lenient than the analysis under federal and state anti-discrimination laws.  Employers with New York City employees should be aware of the more liberal analysis, but understand that – even under this analysis – courts will dismiss claims as long as employers can provide adequate support for their decisions.  The keys to this effort include maintaining clear policies and documenting reasons for employment decisions.