New York Employment Lawyer Blog

A New York Court recently held that a retaliation case could proceed to trial. The court applied the new broad standard set forth in Burlington Northern and Santa Fe Ry Co. v. White 126 S.Ct. 2405 (2006).
The plaintiff in that case, Moore v. Consolidated Edison Co. 00 Civ. 7384, complained that her boss made racially and sexually offensive comments to her from 1997 to 2000. She complained several times to her superiors - but she refused to cooperate with internal EEO investigations. Each investigation found that no violations had occurred.

After she complained, things began to change at work. Her performance evaluations became mediocre and then negative and finally a warning of termination. Finally she was fired in 2003. The company cited her difficult and combative behavior and that her conduct had damaged the morale of the department. The court found that there was "no question" that Moore made out a prima facie case of retaliation.

Continue reading "New York Retaliation Case Goes to Trial" »

New York, New Jersey, California, and several other states want to add more protection for workers. The want stop work place bullies. Current employment discrimination laws provide narrow protection - it only bars race discrimination, sex discrimination or age discrimination etc. But what if a workplace bully does not discriminate and is just plain mean and nasty. Well, the victim is out of luck. Seems bizzare and downright arbitrary that it is ok to abuse someone unless the abuse is based on race, or sex etc... Aren't the laws supposed to protect everyone?

According to the 2003 Study of Abusive Workplaces (conducted by The Workplace Bullying and Trauma Institute), employment discrimination laws only protect victims 25% of the time. That leaves 75% of the victims of workplace abuse unprotected. That is a problem. The Study also found that women are biggest bullies as they are responsible for 58% of the workplace abuse. Women also tend to pick on other women (87% of the time a woman will bully another woman). Men, who are slightly less abusive, target women 71% of the time. Clearly the workplace is not safe for woman and both woman and men favor them as targets for abuse and the existing laws provide scant protection. But bosses are the biggest bullies as they are responsible for 81% of all workplace abuse. Look out if you are woman working for a woman boss.

The U.S. Supreme Court is the biggest problem as the black robed jurists do not favor laws that cover anything but discrimination. I guess no one abuses them. Perhaps Justice Scalia should work for a woman boss in a coal mine for a few months and then report back to us. In any event, workers need more protection and now 10 states (California, Oklahoma, Hawaii, Oregon, Washington, Massachusetts, Missouri, Kansas, New York and Montana) have introduced legislation to prevent workplace abuse. But only Hawaii has passed such a law.

According to the U.S. attorney's office, who just filed a discrimination lawsuit in federal court this week, the city's failure or refusal to hire female bridge painters constitutes sex discrimination under Title VII of the Civil Rights Act if 1964. According to the complaint, New York City has never hired a female bridge painter even though qualified women have applied for the job

Since 1997, 56 people, including three qualified women, have applied for 13 jobs as bridge painters, according to the complaint filed by the U.S. Attorney's office, adding that all 13 jobs were awarded to men.

New York City employs about 100 bridge painters to maintain the 770 bridges it operates and the city's Department of Transportation denies that it had engaged in discrimination.

"We are confident the court will determine that DOT's hiring practices for bridge painters comply with civil service requirements and are gender neutral," Georgia Pestana, the chief of the Labor and Employment Division of New York's law department, said in a statement.

The city's civil service process requires the Department of Transportation to administer an open and competitive search when filling competitive positions like bridge painters.

But since 1992, the agency has not administered a civil service exam for bridge painters and has gotten around the rule by hiring on a provisional basis, the U.S. attorney's office said in the lawsuit.

According to an article in today’s New York Times, the Equal Employment Opportunity Commission has filed a race discrimination class-action lawsuit against Walgreen Company, the nation’s largest drugstore chain, alleging that it discriminated against thousands of black employees across the country, including managers and pharmacists, according to a class-action lawsuit filed yesterday.

The agency’s action comes after a lawsuit filed in 2005 against Walgreen by several current and former black employees who said the company made store assignments based on race and gave the plaintiffs jobs in either predominantly black neighborhoods or less-desirable ones.

Walgreen, which is based in Deerfield, Ill., has disputed the accusations in that lawsuit and it said yesterday in a statement that it was disappointed by the agency’s decision to bring its suit. Both actions were filed in United States District Court for the Southern District of Illinois in East St. Louis.

Walgreen has 5,638 stores in 48 states and Puerto Rico, according to its Web site. It had sales of $47.4 billion in 2006.

Agency officials described the Walgreen case as the biggest race discrimination actions brought by it in recent years. After more than 20 current and former employees nationwide complained to the agency, the E.E.O.C.’s district offices in St. Louis and Miami conducted an investigation, the agency said in a statement. It said it decided to bring the case after attempts to reach a voluntary settlement were unsuccessful.
Robert G. Johnson, a lawyer in the agency’s St. Louis office, said that it had reviewed an analysis commissioned by plaintiffs’ lawyers that looked at how Walgreen assigned its stores and paid managers.

After doing so, the agency determined that black managers were frequently assigned to poorer-performing stores, which made them less likely to be promoted, he said. It also concluded that discrimination at Walgreen was widespread, institutional and directed at blacks working as managers, pharmacists and trainees.

“Blacks were being paid less,” Mr. Johnson said.

Johnny Tucker, a store manager who is a plaintiff in the private lawsuit, said in a telephone interview that he had spent his entire 21-year career at Walgreen working primarily at stores in black or inner-city neighborhoods.

As a result, he said he realized that he and other black managers were not keeping up with their white counterparts.

“The reason is that we were placed in low-income, low-profit, low-sales locations,” said Mr. Tucker, who was among the employees who complained to the E.E.O.C.
He applauded Walgreen for having stores in inner-city neighborhoods. But he said the company needed to spread the challenges of managing such stores among all its employees, not just black ones. Over the years, he added, he had been held up at gunpoint and threatened with a knife.

Amy Coopman, one of the plaintiffs’ lawyers suing Walgreen on behalf of Mr. Tucker and several other current and former Walgreen employees, said she was seeking to have it certified as a class action on behalf of all the company’s employees.

The E.E.O.C. action is seeking both money damages for Walgreen employees who have been the subject of discrimination as well as changes in the company practices. There have been no monetary amounts set forth in the suit as of yet, but the E.E.O.C. laid out their goals in an official statement that they would be seeking monetary damages as well as changes in the overall company policy.

According to a recent survey by TheLadders.com, workplace discrimination is still prevalent in American business.

In a poll of 331 executives across the United States, the majority (81%) said they had witnessed discrimination in the workplace, while 77% said discrimination typically comes from the top down and 58% said they have not taken any action against discrimination in the workplace.

At 42%, race was the most common type of workplace discrimination, followed by 38% for gender and 31% for age discrimination. Only 9% of respondents said they had witnessed discrimination based on sexual orientation.

When asked about their own encounters with workplace discrimination, 56% said they were discriminated against during the job interview process and an equal number said they had been the victim of discrimination at some point in their careers.
Only 43% of respondents said their companies offered awareness programs about discrimination, however, 35% of respondents called these programs "unfortunately necessary" and 33% said they were useful.

"The best companies to work for are those that regularly examine their practices to make sure that they are promoting diversity and fostering productive culture," Marc Cenedella, CEO and president of TheLadders.com, said in a statement.

According to research by Daniel Hamermesh and Jeff Biddle published in the Journal of Labor Economics, attractive people earn about 5 percent more in hourly pay than their average-looking colleagues, who in turn earn 9 percent more per hour than the plainest-looking workers.

What this means is that if an average-looking person earned $40,000, their prettiest co-workers would make $42,000 while their least attractive colleagues brought home just $36,400.

Research also indicated that plain-looking workers may also receive fewer promotions than those awarded to their more striking contemporaries.

Although this is all quite maddening, in New York State, this is legal. Unlike religion, national origin or disability, discrimination based on looks is legal in most jurisdictions.

Currently, both Washington, D.C. and Santa Cruz, California, are two of the only municipalities with laws explicitly protecting workers against discrimination based on physical characteristics or personal appearance, he said. Still, that hasn't stopped workers from launching unsuccessful lawsuits.