New York Employment Lawyer Blog

A state jury in Massachusetts awarded almost $2 million to a former employee of Wal-Mart after finding the retailer underpaid her and then fired her as a result of gender discrimination.

The woman who brought the suit, Cynthia Haddad, worked at Wal-Mart as a pharmacist from 1993 through 2004, before she was fired by the company, according to court papers.

The world's largest retailer has been plagued by complaints of underpaying its workers. It is also facing the biggest sexual discrimination case in U.S. history.

Continue reading "Employee Awarded $2M for Gender Discrimination and Retaliation" »

Very often I will get calls from prospective clients who feel they were "constructively terminated." As soon as I hear those two words I tense up. I don't think people realize how difficult it is to successfully prove constructive termination in New York. In the Second Circuit, an employee is constructively discharged when her employer intentionally creates a work atmosphere so intolerable that he or she is forced to resign involuntarily. Although specific intent is not a necessary element, if a plaintiff suing for constructive discharge cannot show specific intent, he or she must at least demonstrate that the employer's actions were deliberate and not merely negligent or ineffective. The test for constructive discharge is measured by a reasonable persons standard, meaning that whether the employer's deliberate actions rendered the employee's work conditions so intolerable as to compel resignation is assessed objectively by reference to a reasonable person in the employee's position.

Here is a brief recitation of some of the behavior that is illegal in the workplace. As explained in the video, it is not only blatant harassment that is outlawed, rather, stereotyping, racial jokes, discrimination based on someone's accent, and many other behaviors fall within the purview of Title VII. If you feel that you have been harassed or discriminated against, you should contact an attorney.

The Civil Rights Act of 1991 was intended to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate
impact actions, and for other purposes. Unfortunately, like many good ideas, the Civil Rights Act of 1991 had an unintended consequence for employers: it increased the likelihood that a firm will face litigation from an employee claiming discrimination.

In fact, firms with 500 employees or more could expect to be sued for discrimination at least once a year. The cost to defend the accusation through the Equal Employment Opportunity Commission (EEOC) is an estimated $10,000 to $15,000, even if the allegation is found to be without merit. The potential cost of litigation is daunting for most companies, and as a result, CRA-91 has induced hiring discrimination. Even though employers may be well-intentioned, there is evidence that they minimize litigation risk by avoiding hiring employees they believe pose the greatest risk — those in groups protected by the EEOC.

Continue reading "Unintended Consequences of Protecting Employees" »

Lilly Ledbetter, the plaintiff in a wage discrimination case against the Goodyear Rubber and Tire Company, spoke yesterday before the House Committee on Education and Labor, highlighting the difficulties employees face when reporting incidents of discrimination in the workplace. The Supreme Court recently ruled against Ledbetter, and members of the House and Senate have vowed to correct Title VII of the Civil Rights Act of 1964 with legislation.
Ledbetter began her testimony with details of her case, including the legal decisions that ended in the Supreme Court last month. She then spoke of the implications of wage discrimination, which can have lasting effects. "The truth is, Goodyear continues to treat me like a second-class worker to this day because my pension and social security is based on the amount I earned while working there," Ledbetter stated. "Goodyear gets to keep my extra pension as a reward for breaking the law."

In addition to experiencing wage discrimination, Ledbetter testified that she had also been a victim of sexual harassment. In the early 1980s, one of her supervisors implied that if she did not go to a motel with him she would receive a poor evaluation. She was able to resolve the issue with her supervisor through the Equal Employment Opportunity Commission (EEOC). Her complaint, however, led to an increasingly hostile work environment. After this incident, Ledbetter said she "got a taste of what happens when you try to complain about discrimination."

As an employment lawyer, I am used to hearing cases of subtle discriminatory acts. Very rarely am I lucky enough to get a case of any blatant discrimination because employers are savvy enough to know better in this day and age. In other parts of the world, women in the workplace are not protected at all.

For instance, the Kuwaiti Parliament unanimously passed a law this week to restrict women's rights by restricting the hours that women are allowed to work. Women will be banned from working between 8:00 pm and 7:00 am with an exception only for women working in the medical profession. Women will also be prohibited from jobs that "contravene with public morals" and that require women to be in otherwise all-male environments. According to AFP, conservative and Islamist ministers, who comprise the majority of the Kuwaiti Parliament, the new law protects women from "being exploited in immoral activities."

Continue reading "Employment Discrimination In Other Parts of the World" »

Controversy swirls around the commencement address at Boston College. The speaker, Representative Edward Markey (D-MA), told the graduates, "“You must find some ways to use your training to comfort the afflicted, and afflict the comfortable.” The Wall Street Journal took issue with this advice. It is easy to see why. The comfortable want to stay comfortable and they do not want a bunch of young lawyers trying to knock them off their cozy perches.

I think Representative Markey is right. At our law firm, we focus on helping the victims of employment discrimination. Our cases almost always pit the afflicted against the comfortable. The comfortable manager who sexually harasses a subordinate or refuses to promote women into hirer ranks. That kind of thing. Our law firm has sued some of the largest companies in the world for employment discrimination. These mega companies have their mega law firms in tow and they typically try to wear us down with delay tactics and the like. Our entire operation is focused on overcoming the delaying tactics employed by defense lawyers. Not only do many lawyers focus on representing the comfortable, but, in my view, some of them abuse the legal system to some degree in trying to wear down the afflicted. There are also many ethical and very talented defense lawyers and I admire them. The world needs more lawyers who want to help the afflicted - the afflicted need legal help too but sadly few can afford a good lawyer. We also need to think about changing the way lawyers bill clients to increase access to legal services.

Body Firm Aerobics, which owned a former Gold's Gym at 1640 S. State St. in Orem, was accused by the U.S. Equal Employment Opportunity Commission of subjecting two former female workers to a hostile work environment.

The company allegedly demoted Erin Allen, a former sales associate, and cut her salary and work hours after learning she was pregnant. Another former employee, Andrea Liender, allegedly endured sexual harassment and intimidation from Littlebrant.

On Wednesday, the company agreed to pay $50,000 to settle the workplace discrimination lawsuit filed four years ago in federal court in Salt Lake City. The company settled without admission of guilt.

"We won the majority of the issues on summary judgment, and we're pleased to pay a nuisance value to avoid trial, and clearly, no class, no discrimination or harassment was ever proven," said Littlebrant, Body Firm's chief operating officer.

Liender initially filed the charge with the EEOC, alleging the company violated. Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on a person's race, color, religion, sex or national origin.

Continue reading "Pregnancy Discrimination/Sexual Harassment Suit Settles for $50,000" »

In employment discrimination cases, most cases settle before ever reaching a courtroom. As an employment lawyer, I hold out hope that the few cases that reach a courtroom will get the attention and respect they deserve. Apparently, this is not always the case.

Judge James M. Brooks, of the Orange County Superior Court, recently had his ruling overturned in an employment discrimination case because of his courtroom's "circus atmosphere". This is not the first time that Judge Brooks' behavior got him in trouble. In fact, he has been repeatedly criticized by California in the past

In 2003, James Haluck and Michael Litton sued their employer, Tustin-based Ricoh Electronics, and five employees, alleging they were passed over for promotions. The jury sided with Ricoh Electronics, awarding the men nothing, said their attorney Michelle Reinglass.

Continue reading "Employment Discrimination Case Overturned Due to Judge's Antics" »

A Sprint employee sued for age discrimination and lost her jury trial. She appealed because the trial court did not let other Sprint employees testify that they too thought that they were fired because of their age. The Tenth Circuit Court of Appeals agreed and ordered a new trial and held that it is reversible error to exclude such testimony in an employment discrimination case.

The United Supreme Court has now stepped in an agreed to hear the matter in October.
The Supreme Court agreed to hear this case because it "presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me, too" evidence - testimony, by non-parties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff."

The Court added that the "Tenth Circuit panel majority held that a court commits reversible error by excluding "me, too" evidence. This decision conflicts with those of other circuits. Specifically, four circuits have held "me, too" evidence wholly irrelevant. Five circuits have that "me, too" evidence may be excluded under Federal Rule of Evidence 403. Granting certiorari will resolve the conflict between the circuit courts of appeals on this important question of law."

We get phone calls and emails from people every day who tell us about a wrongful termination. Some people have spent decades working for a company only to be fired on a whim. These people are often in tears or extremely upset - their careers damaged and their financial survival in jeopardy. Most all of them do not have any legal basis to challenge the termination. We have to tell them about the employment at will doctrine. It means that an employer can fire anyone at any time for any reason or no reason. The laws of this country only prohibit employment discrimination, paying wages that are too low, and several other limited laws. It seems unfair to the person who was just fired. They are often in shock to learn that there is nothing that can be done other than find a new job. While it may seem unfair, the employees often to do not realize that the employment at will doctrine is a two way street. They are free to quit anytime they want and they can quit for any reason or no reason. Both parties to an employment relationship are free to end it at will.

Pregnancy discrimination is on the rise. Some employers will actually fire a woman while she is pregnant. The stress of pregnancy alone is a lot, but to get fired at the same time must be almost unbearable. At our law firm, we have had a few of these cases. One woman was actually fired while in the hospital giving birth. But most woman simply do not have the will to sue their employer at this time. They want to focus on being a mom and the joy of having a child. So sadly many employers get away with it. We settled the case with the mother who was fired while giving birth. In my view, the amount was much too low and I know we could have increased the amount by pushing towards trial, but the victim just wanted to put it behind her and who can blame her.

Even though I hear dozens of employment discrimination stories a day, I am still shocked at some of what I hear. I assumed that the sensitivity training and sexual harassment training would at the very least make these employees be less brazen in their actions. Unfortunately-that is not always the case. Recently, a client showed me emails that have been sent around to an entire department of a big financial institution, letting everyone know that a colleague (who had been on maternity leave) was coming back to work to "re-enter the real world". As if taking care of a newborn was some mindless and effortless task! While these emails are likely not actionable, they are certainly insensitive, to say the very least.

Lately I have had many clients come to me after being laid off from jobs that they have worked at for over twenty years. These people started from the bottom and worked their way up. Most of them began their careers straight from high school and subsequently do not have college degrees. After giving their best years of their life to their employers, they are usually left with a paltry severance offer. After seeking legal counsel, the severance offers usually increase substantially. However, these people are still left with no degree and no prospects for any future jobs that require such degree. In addition to providing severance, it would be commendable for these large and prosperous companies to pay for schooling for these loyal former employees.

Although federal law does not specifically prohibit discrimination against those with family caregiving responsibilities, new enforcement guidance from the Equal Employment Opportunity Commission explains how existing laws prohibiting discrimination based on gender, pregnancy or disability can apply to caregivers, as well. It offers examples: denying a female worker with young children an opportunity that is available to men with young children or refusing to hire a worker who is a single parent of a child with a disability on the assumption that caregiving responsibilities will make the worker unreliable.

As a result of these guidelines, I believe that we will likely see an increase in the number of caregiver discrimination suits filed by the EEOC.

EEOC employees will be trained in how to recognize caregiver discrimination and connect it to current laws. "It really gives our people a chance to see something new," said Stuart Ishimaru, an EEOC commissioner.

First, it puts employers and employees on notice "that you cannot treat mothers and other caregivers differently based on assumptions of how they will or should behave," she said. "That's important because bias against mothers is the most open form of discrimination in the workplace today."

The guidance also shows that though discrimination against mothers is the "most common form of caregiver discrimination, it's not the only form," she said. The guidance gives examples of discrimination against adults caring for nieces, nephews, grandchildren, parents and spouses, and also states clearly that caregiver bias affects men as well as women.

There is a very interesting article in the New York Times Op-Ed section today arguing that Congress should pass legislation mandating that all workplaces post the salaries of all employees. The argument is made right on the heels of the Supreme Court’s decision last week requiring employees to file pay discrimination complaints under Title VII of the Civil Rights Act within 180 days of the last pay adjustment.

The article also raises an important issue that the majority in the Ledbetter case must have overlooked when issuing their decision--it is not always possible for an employee to find out what a colleague is earning and thereby ascertain whether they are being discriminated against. Obviously there is a big risk that some employees will not be able to discover evidence that they are paid less until after the 180 days has expired.
Judge Ruth Bader Ginsburg was cognizant of these risks when noting in her dissent the following examples: a veterinarian in Massachusetts, who learned that she was being paid less than her male counterparts only after a newspaper published a list of her colleagues’ salaries. The other dealt with a worker at General Motors who learned long after the fact that her starting salary was set lower than those of her male co-workers.

If we are really going to enforce the 180-day rule, then Congress needs to make it easier for workers to procure the necessary evidence. The solution is to make salary data transparent for ordinary workers.

Most business owners don’t want salary information released, reasoning that it would give their competitors an advantage. Yet many courts have said that wages are set by the market, but a market isn’t free if only the buyers of labor know the wages that are paid.

To ease the tension that posting salaries may create, the E.E.O.C. could issue guidelines to employers about how to determine fair salaries and identify the biases against women that result in lower salaries. The E.E.O.C. could remind employers that it is illegal to base pay and promotions on racial and sexual stereotypes.

Continue reading "Salaries: Should They Be Public Knowledge?" »