September 2, 2010
NY Enacts Domestic Workers' Bill of Rights
On Tuesday, New York Governor Paterson signed the Domestic Workers' bill of rights into law. The new statute provides for overtime pay protections, guarantees time off eventually with pay, and provides protections from sexual harassment. It also provides a cause of action for domestic workers to sue to enforce it. See this AP story and this NY Daily News Story for more details.
It's a great achievement, but there seem to be big obstacles to enforcement given the structure of the industry, the lack of centralization of employment, and the number of workers that are paid "off the books." We'll all have to stay tuned to see how things develop.
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Interesting (and disturbing) development that may trigger some conflicting legal claims and free-speech problems.
People have long brought complaints about classical-nude paintings and sexually-themed art in public workspaces, claiming they are sexual harassment in the form of an "offensive" or "hostile work environment," despite the free-speech issues that seemingly raises. See, e.g., amicus brief of Individual Rights Foundation, et al., in Lyle v. Warner Brothers, 132 P.3d 211 (Cal. 2006) (listing examples); see Stair v. Lehigh Valley Carpenters (trial judge finds harassment almost entirely based on sexually-themed calendars).
Will domestic employees now do the same about paintings and other works displayed by homeowners in private homes? Logically, they might be able to, if New York sexual harassment law applies, although that may raise free-speech concerns. (A state intermediate appeals court, the Appellate Division for the First Department, has suggested that the "severe or pervasive" requirement for sexual harassment claims that applies under federal sexual harassment law does not apply under New York City's civil-rights ordinance, meaning speech-based claims may be easier to bring in New York City than under federal law).
Sexual harassment laws have been allowed to reach speech in ordinary workplaces given a tradition of greater regulation of speech in the labor-relations context, as in the Gissel Packing case.
But that's not true of homes. People have a right to free speech, including sexually-themed speech, in their own home. See Stanley v. Georgia, 394 U.S. 557 (1969) (even obscene speech is protected in the home, given homeowners' privacy interests); City of Ladue v. Gilleo, 512 U.S. 43 (1994) (invalidating residential sign ban).
A domestic worker's "right" to be free of sexually-themed paintings or other works that affect her work environment will now be pitted against the homeowner's right to display those paintings in the home. But a harassment law "is only a statute. It cannot supersede the requirements of the First Amendment." UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991)(invalidating harassment code on free speech grounds); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006)(Chin, J., concurring) (state free-speech clause limited liability for sexually-themed speech deemed to contribute to offensive working environment); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (invalidating harassment code on free speech grounds).
Posted by: Hans | Sep 9, 2010 8:06:54 AM