New York Employment Lawyer Blog

On Equal Pay Day April 24, the Education and Labor Committee held hearings on the Paycheck Fairness Act. April 24 symbolizes the number of days into a year women work before earning what men earned by December 31.

Earlier this year Sen. Hillary Clinton, D-N.Y. and Rep., Rosa DeLauro, D-Conn., introduced the "Paycheck Fairness Act", a bill aiming to reduce the pay gap in several ways. Specifically, this Act would tighten loopholes in existing pay equity law and reinstate the Equal Pay Initiative, proposed in 2000 to dedicate $27 million to teach employers and employees how to recognize and respond to wage discrimination.

The Paycheck Fairness Act would also allow those bringing gender discrimination lawsuits to receive compensatory and punitive damages and require employers to provide pay data broken out by race, sex and national origin.

Continue reading "Sex Discrimination and the Paycheck Fariness Act" »

Congress is once again considering a bill that would make it illegal to discriminate in the workplace on the basis of sexual orientation or gender identity.

The most recent version of the Employment Non-Discrimination Act was introduced in the House of Representatives April 24 by two Democrats and two Republicans, who will become the bill’s lead sponsors.

Versions of the bill have been introduced since 1994, though it has never gotten very far and never passed a floor vote in either house. It came within one vote of passing the Senate in 1996--immediately after the chamber approved the Defense of Marriage Act.

Currently, it is legal to fire, or fail to promote, someone because of their sexual orientation in 33 states, and based on their gender identity in 42 states. State courts, commissions or agencies have interpreted the existing state law to include some protection against transgender individuals in Connecticut, Florida, Hawaii, Massachusetts, New Jersey and New York.

Continue reading "Employment Non-Discrimination Act Introduced in Congress" »

Morgan Stanley, one the world's largest securities firms, said Tuesday that it had set up a $46 million claims pool to settle a sex-discrimination lawsuit and said it would enact new policies to help women succeed as financial advisers.

The settlement, which must be approved by the U.S. District Court in Washington, would change training and management-development programs in Morgan Stanley's wealth-management division, the company, based in New York, said.

Six women who are former Morgan Stanley financial advisers filed the complaint last year, claiming the company had discriminated against them and more than 3,000 other current and former advisers since August 2003. Morgan Stanley paid women less than men and gave them fewer promotion opportunities, the women claimed.

Morgan Stanley fired four male employees in January 2006 after they attended an Arizona strip club with at least one client.

The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of a discrimination lawsuit against GLC Restaurants, Inc. (GLC) for $550,000 and substantial remedial relief on behalf of a class of teenage workers who were sexually harassed by a middle-aged male supervisor, including unwanted touching and lewd comments. Flagstaff based GLC is a franchisee doing business as McDonald’s Restaurants in Arizona and California.

The EEOC maintained in the suit that the male supervisor in question was a repeat offender who subjected eight young women, who were part-time crew members, to a sexually hostile workplace at the McDonald’s run by GLC in Cordes Junction, Ariz. Previously, the same male manager allegedly harassed teen female employees at a GLC-owned McDonald’s Restaurant in Camp Verde, Ariz. The EEOC said that GLC knew of this manager’s earlier conduct but failed to take appropriate action to prevent him from repeating the unlawful behavior at another of its restaurants. The EEOC also alleged that the working conditions for one teenager in Cordes Junction were so intolerable that she was forced to resign.

“This was the first job experience for many of these young women, some of whom were only 14-years old at the time,” said EEOC Trial Attorney Michelle Marshall. “No one should have to endure sexual harassment to earn a paycheck. Employers must be extra vigilant in protecting teen workers, who are one of the must vulnerable segments of the labor force.”

In addition to paying $550,000 to the eight young women, the EEOC settlement by consent decree requires GLC to provide training and other relief aimed at educating its employees about sexual harassment and their rights under Title VII of the Civil Rights Act. Under additional terms of the settlement, Prescott attorney Milton W. Hathaway, Jr, the private lawyer for four of the young women, will apply to the court for an award of attorney fees up to $400,000.00.

EEOC Regional Attorney Mary Jo O’Neill, who oversaw the case, said, “Employers have a responsibility to take appropriate corrective and preventive action the first time they learn of discriminatory conduct in their workplace. We encourage employers to take adequate steps to protect the rights of all employees. Promoting a positive workplace for teens by stopping harassment before it starts is in everyone’s best interest.”

Continue reading "EEOC Settles Sexual Harassment Case for Eight Young Women" »

It is hard to go one day without a friend, prospective client or acquaintance complaining to me about their boss. Apparently, they are not alone.

Currently, 11 states are considering legislation that would give victims of abuse like taunting and yelling the right to sue for damages. They are Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon and Washington.

Under current federal and state laws, abused employees are only allowed to sue claiming some type of discrimination, such as race, sex or age discrimination.

Should employers be nervous?

Absolutely, say labor and employment attorneys, especially if companies consider a recent poll that found that a majority of Americans want the right to be able to sue a mean boss who taunts or bullies them. That poll, lawyers note, coupled with the proposed legislation should be a wake-up call to corporate America to get abusive bosses under control.

The alliance released the poll last month that found that 64 percent of workers believe an abused worker should have the right to sue to recover damages.

The poll, based on a recent telephone survey of 1,000 American adults, also found that:

• 44 percent of employees have worked for a supervisor or employer who they consider abusive;

• 59 percent have experienced or witnessed bosses criticizing employee performance in front of co-workers.

• 50 percent have been personally insulted by bosses, or have witnessed such insults in the workplace.

• Southern workers are less likely to have experience with an abusive boss (34 percent) than are their Northeastern (56 percent) and Midwestern (48 percent) counterparts.

Connecticut, for example, wants to outlaw "threatening, intimidating or humiliating" conduct by a boss or co-worker and would ban repeated insults and epithets. The proposal doesn't specify a penalty, but would only give workers the grounds to sue.

New York's anti-bullying legislation targets malicious conduct by supervisors that hurts employees either physically or psychologically. Mental health harm could include humiliation, stress, loss of sleep, severe anxiety and depression. The bill also would punish retaliation of the complainant or anyone who helps the complainant.

Continue reading "Employment Discrimination-When Your Boss is a Bully" »

"Your unconscious made you do it."

That's the new accusation in some big, nationwide workplace-discrimination cases that employers and their lawyers are closely watching.

"Unconscious bias" is an element in two pending class-action lawsuits potentially involving millions of workers, one by women against Wal-Mart, and another by blacks against Walgreens.

It's fundamental to an enforcement effort announced last month by the federal Equal Employment Opportunity Commission (EEOC) that focuses on filing "subtle"-discrimination lawsuits and educating employers. It's called Eradicating Racism and Colorism from Employment (E-RACE).

How can employees prove that prejudices lie deep in their supervisors' unconscious? How can bosses disprove bias that is by definition invisible to themselves? It's an evolving tactic, according to several lawyers, whose opinions on unconscious bias range from junk science to an important breakthrough.

Also called "implicit bias," the concept stems from both common sense and growing social-science research that human beings make all kinds of assumptions about other people.

When those assumptions are unconscious and discriminatory, you've got a legal problem, said Joan Williams, an attorney at the Center for WorkLife Law in California who has done a lot of work on gender bias.

Continue reading "Employment Discrimination: Unconscious Bias" »

According to opponents of affirmative action, when Fortune 500 legal departments force outside counsel to hire more minorities and women, they may be violating federal anti-discrimination laws.

In a research paper released Tuesday, Curt Levey, a conservative activist who helped lead the high-profile fight against the University of Michigan's affirmative action programs, says firms may violate Title VII of the Civil Rights Act, the federal law that prohibits employment discrimination, if they give minorities special preferences in the hiring process. "Whether you are using racial preferences because your clients want you to or [because] you want to, you almost certainly are risking liability," Levey said.

Levey presented his paper Tuesday at a Washington, D.C., forum on law firm diversity sponsored by the American Enterprise Institute.

Over the last few years, Wal-Mart Stores Inc., and others have raised the stakes for outside counsel, pressing firms to increase diversity in their ranks or risk losing clients. In one case, reported in December by Corporate Counsel, a sibling publication of The American Lawyer, Wal-Mart dumped an outside firm that didn't adequately adhere to the company's diversity program.

Levey, however, argues that law firms who have responded to client demands by putting together legal teams of a particular racial composition could face discrimination suits. "Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions," writes Levey in his paper titled "The Legal Implications of Complying with Race- and Gender-based Client Preferences."

Law firms have long struggled with diversity issues. Just 5 percent of partners at firms are minorities, according to Minority Law Journal, another American Lawyer sibling. The National Association for Law Placement says that in 2006, 5 percent of partners in the nation's major firms were minorities, and women accounted for about 18 percent of big firm partners despite representing nearly half of law school graduates.

In New York City and elsewhere, law firms have begun to tailor programs to women. Bryan Cave in New York recently hosted a shoe shopping day for its female attorneys and clients. Skadden Arps held its ninth women's retreat for its female attorneys and Akin Gump hosted a similar retreat in D.C.

This raises an interesting question as to how law firms should foster equality within their firms and with clients. These events do provide a forum for female attorneys and clients to build a relationship and they also allow the firms to create a more comfortable work environment for their attorneys. On the other hand, these events also inherently divide offices based upon gender lines and some, like the one hosted by Bryan Cave, create opportunities where female attorneys have greater access to female clients possibly to the detriment of male members of the firm.

This possible "inequality" will most likely produce a net benefit for firms and for women in the legal profession. I think men will be able to cope with lost retreats if it means a more diverse and happy field of colleagues as well as a more congenial atmosphere for female clients.