New York Employment Lawyer Blog

A federal appeals court has upheld a lower court ruling that found transsexuals are not covered by federal discrimination laws. The 10th U.S. Circuit Court of Appeals ruled that Krystal Etsitty had no legal recourse in fighting her firing by the Utah Transit Authority in 2005.

The 44-year-old Salt Lake County resident was born a biological male and given the name "Michael." She has been diagnosed with Adult Gender Identity Disorder and always believed she was born with the wrong anatomical sex organs. Eventually, she began taking female hormones and living as a woman to prepare for sex reassignment surgery in the future. In the fall of 2001, Etsitty was hired as a UTA bus driver and presented herself as a man and used male restrooms during her training period, court records say. She later told her supervisor she was transsexual and would begin to appear more female.

She was fired in February 2002 after UTA's manager of operations and a human resources official said they were concerned about liability based on possible complaints from women about Etsitty using the same restroom. The officials said she was eligible for rehire after her surgery and denied any discriminatory motive.

The court, which sits in Denver, found that the trial judge was correct in finding that the transit authority feared it could be sued by people born biologically female if it were discovered Etsitty still had male genitals.

However, the court seemed to hedge a little by stating "[t]he conclusion that transsexuals are not protected under Title VII as transsexuals should not be read to allow employers to deny transsexual employees the legal protection other employees enjoy merely by labeling them as transsexuals," the ruling said. "If transsexuals are to receive legal protection apart from their status as male or female, however, such protection must come from Congress."

Today the judge in this New York case said that the plaintiff had presented a weak sexual harassment case under New York law. Not a good sign for Anucha Sanders. The jury could be strongly swayed by the judge's views. In the courtroom, the judge is the boss - the authority. The jurors look up to to the judge for guidance and if he expresses an opinion about the case, that can influence the verdict.

Now that the TV networks are broadcasting the fact that the judge has a dim view of the plaintiff's case, Ms. Sander's lawyers should think about settling this case fast. Mr. Thomas and the Knicks may not be in any mood to settle the case. They might want to get a verdict to vindicate themselves.

Also, from what I have read in the papers, it seems that Ms. Saunder's case is based largely on the fact that Mr. Thomas called her a bitch or a "ho." Even if he said these words, this only proves that Mr. Thomas curses at work and denigrates woman - but it does not prove sexual harassment in New York. It might be evidence of gender bias, but this is a case of sexual harassment.

The Leveling The Playing Field Institute just conducted a study of workplace unfairness and reported some of the most blatant acts of employment discrimination in New York:

- A male Arab finance professional reported that "One of my coworkers was buying a new house so we went to Google maps to look it up. It's a satellite image so you can zoom in and see an image of the actual house. Another co-worker walked by and said, "What, are you selecting a target?"

- A female African-American attorney reported that ”I worked with a particular senior attorney for years and one morning I went into his office to talk to him. In the middle of the conversation, he looks up at me and says, 'Wait a minute, you're not [the name of the other black associate]."

- A Latino banking executive reported that, "I was top in my class...then the ceiling hit fast...when word spread that I was vocal about hot topics like education reform and immigrant issues, I was marginalized at work functions."

- A lesbian retail professional said that, "We found out that our company offered pet health insurance, including unusual pets like pigs, rats and snakes but they didn't offer same sex domestic partner benefits."

- A Latina technology professional reported that, "My manager told me I was too 'ethnic' looking to be taken seriously."

- An Asian female attorney said that, "When I had errors on my work, even it was really minor, the partner would say, 'There is an English problem here,' instead of just calling it a typo."

Read the whole story here at PNN Online.

It never ceases to amaze me how far my opposition will go to try to intimidate and/or embarrass my client in an effort to force him/her to settle. No matter how often I warn my clients about what happens during litigation, they are always shocked at what comes out. For instance, I have negotiated severance agreements for clients who feel they have been discriminated against based on their age or their gender. It would be extremely difficult to argue that extra-marital affairs (not involving intra-office relationships) or other unrelated but potentially detrimental information would be relevant. However, often times, my opposition will call me up and in a not so subtle way inform me that these issues will be raised at the deposition-should the case not settle. Although I would strongly oppose their efforts to obtain such irrelevant information, the damage is often times done.

By way of example, if anyone has been following the Anucha Browne Sanders v. Isiah Thomas trial, I'm sure you have already heard the idle threats regarding Ms. Browne Sanders' alleged tax fraud issues. These tactics are merely created to embarrass and force the plaintiff to settle before the case gets to a jury which could potentially drag the New York Knicks' name into the mud.

A black fireman in Los Angeles had dog food secretly laced into his food at the firehouse. His fellow fireman thought it was a prank, but the victim saw it as race discrimination. The San Jose Mercury News reports that the case is set for trial later this month and that the case could settle in the millions.

According to news reports, the fireman, Tennie Pierce, sued the Los Angeles Fire Department for racial harassment and is now willing to settle for 3.1 million. The L.A. City council apparently was willing to pay 2.7 million but Mayor Antonio Villaraigosa vetoed any deal over 1 million. The city is now reconsidering the offer now that trial is set for September 24th.

Experts have warned the City Council that a jury verdict could exceed 7 million. Others say the case is simply unpredictable and could either flop or produce a huge verdict. Like most discrimination cases, both sides have a lot at stake and the outcome is uncertain - so a settlement is likely because neither side wants to lose.

Thanks to OverLawyered for reporting the story in its round up of top stories.

Yesterday, the Wall Street Journal ran a story about a gender bias case filed against tech giant, EMC Corp. The Workplace Prof Blog provides a nice summary of the article.

The tech sales business is described by Kelly Harman as a "testosterone ladden environment, like playing for a football team .... a bunch of white guys running around selling technology." Harman is the former chairwoman of Woman in Technology, a professional association. She says that some companies are now pushing for a more balanced work force.

The 2000 census reported that woman make up 25% of the tech work force. Some companies, like IBM, report positive changes and a real increase in female employees - now up to 40% at IBM. However, other tech companies report lower numbers - EMC at 13.5% and CA, the software vendor, at 29%.

The EMC suit and the WSJ story on it show that the tech industry overall is still a tough place for a woman. Double standards and macho cultures still exist in some tech companies.

According to an article posted on emediawire.com, an estimated 80% of employers are out of compliance with federal and state wage and hour laws. It is no wonder that my office receives so many calls from workers who are not receiving their fair wages.
According to the article mentioned above, between 2004 and 2006, the number of federal wage and hour cases increased by 86%, and the number of multi-plaintiff cases increased by 70%. The threat is so pervasive, many organizations are now including wage and hour violation fines as a fixed line item in their budgets.

With the increased exposure in recent years, it is my hope that employers begin to realize that these violations are very real and very actionable.

New York just enacted a law that gives working mothers the right to nurse their infants at work. From now on, employers have to give mothers time and space at work to nurse or feed their infants for three years after child birth. The law also prohibits an employer from discriminating against a woman for exercising this right. Governor Spitzer said, "A woman should not be forced to sacrifice her ability to provide for her children economically or nutritionally."

Under this law, employers are required to provide new mothers with a private space to either express milk or breast feed. Employers are also required to give mothers the time to either express or breast feed - but the company does not have to pay the mother for that time. 39 states give woman the right to breastfeed at work. A summary of state by state breastfeeding laws can be found here.

Word of this new law is slowly spreading. It was first reported by the local Albany paper, The North County Gazette on August 22nd. The new law was also noted by the Strategic HR Lawyer.

Prospective clients call me all the time to discuss their potential cases with me. Often times, these cases sound fairly strong in terms of potential liability and damages. However, some of these clients tell me that they have already quit their jobs because they feel they have been "constructively terminated". The employee's decision to quit their job can be catastrophic to a potential lawsuit.

Employees who feel they are being constructively terminated should consult an attorney before quitting their job. These employees are often hurting themselves by cutting off their damages.

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.