New York Employment Lawyer Blog

On November 6, 2007, the U.S. Supreme Court will hear argument in Federal Express Corp. v. Holowecki. The case considers what procedures a plaintiff must follow in order to successfully invoke her rights under the Age Discrimination in Employment Act (ADEA) - the federal law that prohibits employers from discriminating against employees aged 40 and over on the basis of age.

In 2001, Patricia Kennedy filed an “intake questionnaire” with the Equal Employment Opportunity Commission (”EEOC”) alleging age discrimination by her employer, Federal Express Corporation (”FedEx”), against her and other couriers. Because she did not file a formal “charge” document, the EEOC did not notify FedEx, investigate the claims, or begin conciliation efforts.

Five months later, Kennedy, along with 13 other past and present FedEx couriers over the age of 40, filed suit over this issue in federal court. The trial court granted FedEx’s motion to dismiss, ruling (among other things) that Kennedy could not sue because she never filed a timely charge with the EEOC as required by the Age Discrimination in Employment Act (”ADEA”). The U.S. Court of Appeals for the Second Circuit reversed, holding that Kennedy’s intake questionnaire is a “charge” for the ADEA’s purpose because it manifests her intent to activate the EEOC’s investigation and conciliation process.

The Supreme Court now takes up the question of whether, “even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge”, an intake questionnaire meets the requirements of a discrimination “charge”.

An Indian engineer, who was fired by her company after she complained of her senior’s racist conduct, has been awarded USD 5.5 million by a San Francisco federal jury.

The jury found Kiran Pande’s former employer Chevron liable for wrongful termination and retaliation and ruled that she be given roughly USD three million for past and future economic losses, and USD 2.5 million in punitive damages.

Pande, who is India-born and holds a Ph.D. in petroleum engineering from Stanford University, was fired by Chevron in late 2003 after 15 years with the company.

After a three-week trial stemming from incidents that occurred between September 2000 and December 2003, the jury found that Chevron retaliated against Pande after she complained about discrimination and fired her for reasons that violated a public policy.

Chevron first hired Pande as a research engineer in 1988. But in 2001 Pande began to suffer racist remarks and discrimination at the hand of his senior Rex Mitchell, who is now the company’s chief compliance officer, according to her complaint, filed in United States District Court for the Northern District of California.

By March 2002, Pande complained to Mitchell’s supervisor, James Johnson, about Mitchell’s conduct.

Johnson did not investigate, Pande said and alleged that she was given the choice of leaving the company or leaving the group or staying for up to 18 months and getting along with Mitchell.

Later she filed a formal complaint against Mitchell with a company ombudsman.

According to a recent article in USA Today, as the number of employees with elder and child care demands grows, more workers are filing lawsuits claiming they've been discriminated against on the job because of their family caregiving obligations.

The federal Equal Employment Opportunity Commission (EEOC), which recently issued its first guidance for employers about the issue, reports an "upsurge" in cases — with many resulting in awards to plaintiffs. The guidance provides examples of how bias can occur so that employers are aware of the risk.

The type of discrimination is growing so fast, it's been dubbed "family responsibilities discrimination." The Center for WorkLife Law at the University of California, which tracks these lawsuits, says such cases have risen by 400% in the last decade.

"This is on employers' radar screens," says James Matthews, a Philadelphia-based employment lawyer. "Law firms are really talking to their clients about it."

Cases usually involve an employee who must care for a child, elderly parent or disabled spouse. The employee may claim that he or she was retaliated against, not hired or discriminated against by an employer because of his or her caregiving responsibilities.

Pregnancy bias claims grow

The cases also may involve male caregivers being treated more favorably than female caregivers or gender stereotyping, such as discriminating against an employee because she is a new mother. Overall, cases claiming bias against pregnant employees filed with the EEOC have risen from 3,977 in fiscal year 1997 to 4,901 in 2006.

One recent case is an EEOC lawsuit filed in September against news and financial services company Bloomberg. The lawsuit alleges the company demoted and reduced the pay of female employees after they announced their pregnancies and after they took maternity leaves.

Some women were replaced by more junior male employees, the EEOC says. The lawsuit also alleges that the same pregnant women and new mothers were excluded from management meetings.

I recently came across a very interesting article on Carl Bosland's blog. This article discussed the recent case of Bell v. Prefix, Inc., No. 05-74311, 2007 U.S. Dist. LEXIS 52837 (E.D. Mich. July 23, 2007) where the issue of whether the FMLA covers an employee's need for leave to provide psychological comfort and care to an unconscious parent was addressed. There, Bell's father fell after suffering an aortic aneurism. He was granted FMLA leave to attend to his father's health care and hospitalization. Bell left work early to be with his father the night before surgery. He discussed the surgery with his father. He returned to visit his father after the surgery. His father fell into a coma after the surgery. He remained in the coma until his death a few weeks later. On several occasions, Bell was granted FMLA leave to visit his father. His father was at all times incoherent and unable to visibly react to Bell's words. During these visits, Bell would discuss his father's condition and care with hospital staff, including approval of care. Bell was subsequently terminated allegedly due to a downsizing of his department. He sued, alleging that his dismissal was due to his use of FMLA leave.

Prefix argued that Bell's leave was not protected by the FMLA. It argued that he did not provide physical or psychological care because his father was comatose. Under established case law, merely visiting a sick parent does not, the employer argued, constitute providing care within the meaning of the FMLA. The court disagreed.

The time Bell spent with his father was psychological care. The court rejected the argument that the failure of a parent to visibly respond demonstrates that psychological care was not given during their post-surgery interactions. "Taken to its logical conclusion, Defendant's argument would leave the FMLA without an allowance for psychological care if the loved one was unable to visibly react to it." The court also noted that Bell did provide psychological care to his father before surgery when his father was conscious. It also noted that he participated in medical decisions for his father post-surgery, which is also covered by the FMLA.

The number of EEOC lawsuits claiming workplace religious discrimination have increased by nearly 50% in recent years, illustrating that employers may not be adequately prepared to deal with the law regarding religion in the workplace.

The US Equal Employment Opportunity Commission (EEOC) received 2,541 charges of religious discrimination in 2006. 2,387 religious discrimination charges were resolved, and the EEOC recovered $5.7 million in monetary benefits for charging parties and other aggrieved individuals, not including monetary benefits obtained through litigation.

Employees are protected from religious discrimination by Title VII of the Civil Rights Act of 1964, a law which covers employers who have 15 or more employees.

One of the criticisms against Title VII is the vagueness of its compliance requirements. Many employers are left wondering what exactly an undue hardship is as far as respecting their employee’s religious rights, and are often confused about what to do when it comes to employees who feel that actively trying to recruit others into their religion is a right they should have.

The Equal Employment Opportunity Commission (EEOC) reported to authorities Friday an e-mail circulating to employers that alleges to be a harassment complaint from the federal agency and contains links to a computer virus.

Employers who were receiving the fraudulent e-mails called the EEOC to see if they were legitimate. The agency reported the e-mails to the U.S. Computer Emergency Readiness Team, a government-private industry partnership based at the Homeland Security Department that responds to cyber-attacks.

Recipients of the fraudulent e-mail are led to believe they can access details of a discrimination claim by clicking on links in the e-mail, which is circulated under the subject "Harassment Complaint Update For." The e-mail contains links to a virus that is likely to harm the recipient's computer if the user clicks on the referenced link or downloads the attached file, according to an EEOC announcement Friday.

Under EEOC policy, employers are notified of the filing of an employment discrimination charge using postal mail and not through e-mail because of security concerns.

"The e-mail appear specifically to be going to human resource staff with the company," said David Grinberg, an EEOC spokesman. "We suspect (the e-mail) may be generated from overseas."

Anita Hill, the woman well known for testifying during the Senate confirmation hearing of then-Supreme Court nominee Clarence Thomas about alleged sexual harassment, has written an interesting article about the Anucha Browne Sanders $11.6 million jury award against the New York Knicks. In the article, Ms. Hill worries that the recent punitive damages award will cause the NBA and other institutions to hire fewer women. This is not only unfortunate but also ironic. Punitive damages are awarded not to compensate the plaintiff but to deter this conduct in the future. However, from a purely economic standpoint, I can see an institution shying away from hiring a women merely to prevent this type of litigation at some future time. Sexual harassment verdicts are unpredictable.

According to a handbook given out to all female officers graduating from the New York Department of Correctional Services Academy, women should avoid gossiping at work, being too bossy at home and should eat ice cream to avoid burnout.

The blue booklet, "Orientation Handbook for Female Staff Working in an Institutional Setting," has been distributed to new female guards for at least 20 years and is still being handed out. Thanks to Sue Weibezahl Porter for bringing this to my attentions.

Not surprisingly, no such book exists for new male corrections officers, said Erik Kriss, public information director for the department.

"There are several mistakes which females make in their relationships with one another," the book says, then mentions "rumor spreading," "jealousy among other female staff members" and "classification snobbery," or looking down on female civilian employees. These behaviors are disruptive in the workplace, the book says.

It's that message that is helping Penny Collins, of Marcellus, N.Y., substantiate her claim of harassment and discrimination filed against the Department of Correctional Services in federal court, her lawyer said.

"To hand out something like that, it just shows how pervasive this is in the department," said attorney John Valentino of Syracuse. "They still seem to be living in the 1950s."

Collins said more than a dozen other women in New York have similar lawsuits against the department.

Collins is one of 2,264 female corrections officers. The department has 19,633 men in corrections.

"Females generally have the primary responsibility for the care of their offspring," the book notes. "Don't hesitate to talk to other female employees. They may be a good source for obtaining information on desired support services."

The book has sections on "wolf whistles" and "catcalls" and says women shouldn't use profanity "to be one of the boys" and should "eliminate flirtatious mannerisms while on the job."

"This is wrong on so many levels, I don't even know where to start," said Rosemary Agonito, former director of women's studies at the Rochester Institute of Technology who runs a workplace consulting firm. "This is just bizarre in the extreme in this day and age."

It reinforces negative stereotypes and "puts the burden on women to behave in certain ways without asking comparable things of men," said Agonito, of Onondaga, N.Y., who has written six books on gender issues in the workplace, including "No More Nice Girl."

Kriss said the agency's 19-page book was written by corrections officials in the 1980s "in response to situations that had arisen over the years that were unique to women corrections officers and to help women anticipate what to expect and how to handle it."

"There were no big high-profile events," he said. "The fact of the matter is if you're a female going into an all-male facility, they're going to be treated differently."

Stephanie Rosenbloom has a great article in the New York Times today about office dating, "Boss's Memo: Go Ahead, Date (with my blessing)." Since most of us spend most of our time at work, it is no surprise that many of us date at work. Rosenbloom's articles explains that while once taboo, office dating is now OK - people accept it and companies are coming around too.

One of the major concerns that companies have about office romance is the potential for sexual harassment suits. But that is decreasing.

Lets look at the core of sexual harassment and why it is illegal. Sexual harassment laws were created to protect people from unwanted sexual or romantic attention at work. The workplace presents risks that are not normally present. For example, a boss could abuse his authority to coerce another into a relationship by threatening termination or demotion etc. Also, at work one could be forced to spend time or share space with someone who does not realize that "he's just that not into it's you." If you work with someone like this, report them, and change your style to turn them off. When these options have been exhausted then it's time to write emails and letters to HR and tell them to help clean up the dating damage. If the company chooses to ignore the issue, then be even more pro-active and sue the company because they just don't get it.

So this sexual harassment stuff is reserved for extreme situations and overly zealous employees. Most office romances are perfectly legal and it is how many of us fall in love. Here are seven ground rules for survival:

1. Date people who do not work near you because it's not comfortable for your peers and clearly you don't want to be near them if it doesn't work out.
2. Don't date your boss because what if you get promoted to his or her level. That could be a deal breaker for your relationship.
3. Don't hide it. No one likes sneaky people so don't be one.
4. Check the company personnel manual first. If the company does not want you to date at work, then don't at the office.
5. No PDA at work because it's not as cute as you might think.
6. If you are a boss and you date a direct subordinate, you are risking your job.
7. If you mix love and work, draw clear boundaries and don't cross them. Work is work and keep it that way.

Good luck and date smart if it you are going to have an office romance.

Forbes Magazine just listed some of the worst jobs to have for the 21st Century. Here are the top 10:

1. News Analysts, Reporters and Correspondents
2. Economists
3. Announcers
4. Travel Agents
5. Jewelers and Precious Stone and Metal Workers
6. Farmers and Ranchers
7. Federal Employees
8. Computer Programmers
9. Insurance Agents
10. Fisherman and Fishing Boat Operators

Read the full article here to hear why these jobs are dead ends. The good news is that if you have one of these jobs, you are most likely an employee at will and therefore you are free to leave whenever you feel like it. This is America and you can quit your job any time just as your employer is free to fire you whenever it wants.

With people having children later in life, and therefore expenses such as college tuition looming over parents who are in their 50's and 60's, more workers say they plan to stay on the job well past normal retirement age.

The question is, will workplaces welcome these older workers? Despite progress at some companies, age discrimination appears to still be a pervasive problem.

An appeals court ruled last week that a former Google Inc. (GOOG) executive can move forward with his age-discrimination lawsuit against the tech company. The former employee claims colleagues called him an " old fuddy-duddy" and told him he was fired because he wasn't a "cultural fit," according to court documents.

As an employment lawyer, I hear cases similar to the Google case all of the time. Many of my clients don't even think to tell me about most of the comments that have been made because they have become so accustom to that type of environment and have therefore become numb to the discriminatory conduct in the workplace.

According to a study by the Employee Benefit Research Institute in April, 24% of current workers say they'll retire at age 66 or later, and another 27% plan to retire at 65. This data suggests that age discrimination cases are going to increase in the near future.

The same EBRI study finds 37% of retirees said they left the work force earlier than planned, with 28% pointing to health problems, 28% citing "changes at their company, such as downsizing or closure" and another 18% citing work- related reasons.

If you feel you have been pushed out of your job based on your age, you should contact an attorney.

A huge corporate law firm, Sidley & Austin, just paid 27.5 million to 32 lawyers that it forced into retirement. The EEOC sued Sidley & Austin for violating the lawyer's rights under the Age Discrimination in Employment Act. The 27.5M was paid to settle the suit.

It is illegal to force employees to leave a company due to their age. My 13 year old son knows that a company cannot fire people just because of their age - unless they are pilots or ambulance drivers. Sidley & Austin has its own employment law department, but apparently the firm did not get good advice.

A former New York Knicks executive was awarded $11.6 million after a New York federal court jury found that Thomas and Madison Square Garden sexually harassed Browne Sanders, but it decided only MSG and chairman James Dolan should pay for the harassment and retaliation. Ms. Browne Sanders said that this was a "wake-up call" for corporate America as well as sexually harassed women.

"I hope it has an impact ... for employers across industry to take heed and pay attention and take responsibility for the workplace," Anucha Browne Sanders said on ABC's "Good Morning America." She added that she hoped her case also would embolden women to speak up about sexual harassment.

"Silence never makes change," she said.

Browne Sanders said she believed most employers understood what constituted unacceptable behavior, but she thought the verdict would serve as "a wake-up call to those environments that aren't civil."

Madison Square Garden owes $6 million for condoning a hostile work environment and $2.6 million for retaliation. Dolan, the CEO of Garden owner Cablevision Systems Corp., must pay an additional $3 million.

The jury of four women and three men needed roughly two days to decide on the allegations, but only about an hour to pile on the damages at the close of a three-week trial rife with accounts of crude language and sexual escapades behind the scenes of a storied franchise. Jurors declined to talk about their deliberations as they left the courthouse amid a media frenzy.

A jury has found that New York Knicks Head Coach Isaiah Thomas sexually harassed a female employee of the New York Knicks, “subjecting her to unwanted advances and a barrage of verbal insults.” Although the jury ruled that Thomas will not have to pay the woman any punitive damages, the fact that the Knicks now have a head coach who has been found to be a sexual harasser by a jury is bound to cause problems in New York.

However, the jury also found that Madison Square Garden, the company that employs Thomas [and once employed Thomas’ female victim, Anucha Browne Sanders] also harassed Browne Sanders and will have to pay her punitive damages – the amount has yet to be determined.

While Thomas, who is married a father of two, denied the sexual harassment charges, he did admit trying to kiss Browne Sanders in December 2005, asking her “No love today?” when she recoiled.http://www.ottingerlaw.com/sexual-harassment-0/