How New York Law Treats Instances of Discrimination Against Black Women (and Other Sex-Plus or Race-Plus Combinations)

We all are aware that the law bars workplace discrimination based on a worker or job applicant’s sex, race, age, disability, ethnicity, nationality, religion, sexual orientation, gender identity, caretaker status, etc. Real-life has taught us that actual instances of discrimination are not always clearly delineated along these characteristic categorical lines. Certain forms of discrimination may be, for example, unique to Latina women… or Asian women… or gay Black men. Fortunately for workers in this state, the law recognizes something called “hybrid” discrimination, meaning a case of “race plus,” “sex plus,” “ethnicity plus”, etc. discrimination. If you think that was the kind of discrimination you endured at your job, you should get in touch with an experienced New York workplace discrimination lawyer and find out how best to pursue your case.

Just a few weeks ago, we had a ruling in a discrimination case just like that here in New York City. The plaintiff, C.S., worked at a hair salon and spa in Manhattan that specifically catered to women with curly hair. C.S. worked as a salon manager starting in the summer of 2015 until she was fired in the summer of 2018.

Along the way, the manager alleged that she suffered multiple forms of discrimination, including pregnancy discrimination during her 2015-16 pregnancy and caregiver discrimination after she returned following maternity leave. The manager also detailed a long list of occasions of discrimination where her white female supervisors treated her less favorably than her similarly situated white female colleagues.

After the salon fired the manager, she filed a lawsuit here in New York County. The lawsuit alleged that the employer’s treatment of her violated both the New York State Human Rights Law and the New York City Human Rights Law.

The manager’s case had a potential problem, though. Many of her allegations crossed or straddled boundaries between various areas of impermissible discrimination. The manager alleged that she suffered pregnancy discrimination and caretaker discrimination, but that there was more to it than that. The discrimination, she asserted, was rooted in her status as a pregnant Black woman and, subsequently, a new Black mom.

‘Sex… in Conjunction with a Second Characteristic’ Can Be a Viable Formula

Despite the employer’s arguments to the contrary, the court ruled that C.S.’s complaint laid out a valid theory of illegal discrimination. The basis for the manager’s claims, the court deemed, was “race-plus-gender-plus-caregiver-status.”

This kind of discrimination is a viable basis for seeking relief and is grounded in the aspects of the law that say that, even if someone does not discriminate against, say, men as a whole or Black people as a whole, they can be liable for illegal discrimination if they discriminate against a specific subgroup, such as discrimination specifically targeting Black women or Black female caretakers.

The court stated that these “complaints are actionable under the rubric of ‘sex-plus’ discrimination: discrimination against some but not all women based on their gender ‘plus’ another characteristic such as appearance, pregnancy, marital status or age”.

This standard goes back several decades. The U.S. Supreme Court, back in 1971, made a crucial ruling in favor of workers who suffered sex-plus discrimination. The high court, in its ruling, said that “sex considered in conjunction with a second characteristic — ‘sex plus’ — can delineate a ‘protected group’ and can therefore serve as the basis” for an employment discrimination case.

That’s what C.S. did in her complaint. She asserted that she was mistreated when compared to white pregnant women, white non-pregnant women, and male caretakers. In other words, C.S.’s case was not simply that she suffered discrimination for being pregnant; she suffered workplace discrimination for being pregnant while Black and that she didn’t suffer discrimination simply because she was a caretaker, but because she was a Black female caretaker.

As the trial judge noted in his ruling green-lighting C.S.’s continued pursuit of her discrimination case, several courts have decided that a worker does not lose the right to pursue her case solely because “certain members of a protected class are not subject to discrimination, while another subset is discriminated against based on a protected characteristic shared by both subsets.”

Cases of discrimination are often filled with gray areas. Success in such an instance means knowing how to approach those gray areas and developing the facts and the presentation necessary to produce a winning case. For the skillful advocacy necessary to get you the successful result you deserve, look to the knowledgeable New York sex discrimination attorneys at Phillips & Associates. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation. The sooner you call, the sooner we can get to work for you.

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