New York Employment Lawyer Blog

New York City has its own employment law. It is called the New York City Human Rights Law and it is very good for employees. It is stronger than the federal employment laws that have been watered down by Congress and the US Supreme Court. Whenever we bring law suits, we try to use that law.

The New York City law applies to all employees who work in any of the five boroughs of NYC. It applies to any company that has four or more full-time employees. If you have an employment claim and you work in NYC, make sure your lawyer considers using this law because it can really help. One of the great things about this law is that there are no caps or limits on how much money an employlee can recover. It is also broader in its coverage of potential claims.

Recently, the New York Court Appeals (the highest court in NY) made this law even better for employees by making it harder for employers to dismiss suits brought under the law. Whenever an employee brings suit, most companies try to get the case dismissed on summary judgment. Now the bar has been raised and companies will have an uphill battle.

This new case set out a three-prong test for determining when a case can be dismissed.

First, a court must determine if the story told by the plaintiff constitutes a "prima facie case" of employment discrimination. This is a litmus test to make sure that the employee's case actually holds water.

Second, the court must determine if the defendant (the company) has a winning explanation or defense. For example, can the company prove that the employee was really fired for being drunk on the job - are there solid facts showing that the employee was drunk at work. In many cases, companies can prove that no discrimination occurred and that they had valid non-discriminatory reasons for firing the employee. These cases should be dismissed.

Finally, even if the company has a winning defense, can the employee show that this defense is invalid or made up? Sometimes an employee can show that the company's so called "excuse" is really a lie. For example, if the company claims that the employee was fired for being drunk on the job, the employee might have proof that they were not drunk. If there is a conflict of proof then the case cannot be dismissed. Cases can only be dismissed if it is clear that the company had a valid non-discriminatory reason for firing the employee. But if the employee can cast doubt on that excuse, then the case cannot be dismissed and a jury will need to decide who to believe. It is now harder for companies to dismiss employment cases brought under the New York City Human Rights Law.

Today the U.S. Supreme Court held that churches and their related organizations are exempt from employment laws in dealing with certain employees. Do you think this is a good decision? I don't.

The Constitution mandates the separation of church and state and Chief Judge Roberts relied upon this principle to exempt religious organizations from the laws that everyone else has to follow.

A church now can fire a black minister because he is black - they can send the minister a letter on church letter head saying "dear minister - you are fired because we don't want black people in our church." Now this is perfectly legal because a church did it. This free pass on employment law extends to all religious organizations like schools and hospitals so they can now fire certain employees for being black, pregnant, gay, disabled, old, female or from another country.

Employment discrimination is now legal in churches and related entities. If you happen to teach religion at a religious school, you should know that you are now in bubble zone that permits overt discrimination. If you are fired for having cancer or being gay or old, please do not bother to call our law firm because we cannot help you anymore.

There should be a separation of church and state. But does this mean that religious organizations should be exempt from the laws that protect people from discrimination? Constitutional rights are not absolute, they are tempered by the government's ability to prevent proscribed destructive behavior (crimes, civil rights etc), why are churches any different? What good can come from allowing religious organizations to act like bigots?

Imagine if every day you went to work you felt like you were being unfairly treated because of something you couldn’t change about yourself. For many New York employees, this is their sad workplace reality. Workplace discrimination is illegal but can often be hard to come forward with the situation for fear of losing a job.
I thought I would take a moment in today’s blog and just point out some of the more common New York employment discrimination areas and what they entail. Here we go:

1. Age Discrimination: This occurs when an employer takes an adverse action against an employee because of his or her age. In New York, there are state laws that ensure that any worker over 40 cannot be discriminated against on the basis of their age.

2. Disability Discrimination: Whatever the disability may be, if an employee is fired, not hired or denied career opportunities because of it, there is a legal issue. Also covered under disability discrimination is when an employee is denied reasonable accommodations at work.

3. Race Discrimination: Perhaps one of the more publicized types of discrimination because of its storied history, race discrimination occurs when equal employment opportunities are denied to an individual because of his or her race.

4. Religious Discrimination: Not only can employers not discriminate against an employee on account of their religion but they must also allow for reasonable accommodations for the practice of religion. Amen.

5. Sexual Discrimination: Whether actual or perceived, an employer simply cannot discriminate against an employee because of his or her sexual orientation. If an employer disagrees with their employee’s personal preferences…too bad.

6. Pregnancy Discrimination: Pregnancy discrimination can manifest itself in many forms. If a pregnant woman no longer has her job after maternity leave, there is a legal cause of action. If a woman is denied a promotion because of her pregnancy, there is a legal cause of action. I could keep going, but you get my point.

As you can see, these various types of discrimination have a wide range for abuse depending on the individual and employment situation. One thing they all have in common is their illegal nature.

Here at the Ottinger Law Firm we don’t only represent employees in these various types of workplace discrimination cases, we win. If you feel like you fit into any of these categories, please give us a call.

A new failure to promote case came down from the Second Circuit yesterday entitled Wharff v. SUNY.   It is no surprise that the employee lost on summary judgment.  He did not have direct evidence that the promotion decision was based on discrimination.   It is extremely difficult to obtain the evidence needed to win these cases.

At our law firm, we rarely take single plaintiff disparate treatment failure to promote cases because they are so hard to win and often there is not much to gain anyway.   Even if a plaintiff can somehow marshall the evidence required to win a failure to promote case, the damages are often inconsequential.    In my jaded view, these single plaintiff cases are best reserved for high dollar investment bankers and the like who can afford to finance them and have a lot to gain if they win.

Most disparate treatment failure to promote cases come down to a comparison of the qualifications of the plaintiff and the people who were promoted. But this is an uphill battle because as the Court held in Wharff "Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision ... not be discriminatory."  Citing Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980).

This is a difficult standard to meet.   Unless the decision maker confesses discriminatory intent, it is almost impossible to win.  Even if a plaintiff can establish a gross disparity in qualifications, they still lose unless they have some other evidence of discriminatory animus.   It is circular logic because typically the only available evidence of discrimination is the fact that a less qualified person was chosen over a more qualified one - but that is not enough.

What other evidence might exist to prove discrimination?   Maybe the decision maker is one of those lunatics who announces to others that she is not going to promote anymore men.   But people rarely put their discriminatory animus on display for others to see.

In Wharff, the plaintiff was a SUNY Lab Technologist who claimed that he was not promoted to Assistant Supervisor due to his gender.  One glaring problem with Wharff's case is the fact that a number of men were promoted to Assistant Supervisor, just not him.   Several women were also promoted over him as well and he attempted to focus his argument on them.  One of the women who was promoted was less qualified, but that was not enough.  He did have any other evidence of discriminatory intent so his case was dismissed on summary judgment.

Since direct evidence of discriminatory intent is usually not available, a failure to promote plaintiff must find some other way to demonstrate discriminatory animus.   The best way to do that is with statistical evidence.   The plaintiff in Wharff made a feeble attempt to establish disparate impact with statistics but his data set was skewed and too small to be meaningful.

The term "cat's paw" comes from a fable created by Aesop in which a clever monkey tricks a cat into pulling  hot chestnuts from a fire with its paw.   The monkey devours the nuts and runs off leaving the cat with nothing  but burnt paws.  The moral of the fable is that one can use another as a device to achieve a result without  exposing himself to harm.

Employment discrimination can be accomplished the same way.   A person with discriminatory animus can  operate in the background and cause others to take adverse employment action.   In this situation, the  person who makes the ultimate decision may not act with discriminatory animus.  The ultimate actor is the  proverbial cat's paw - a mere device used by another to achieve a result.  But the result is the same -  adverse employment action occurs and it is directly motivated by discrimination.   The harm is not  ameliorated by the fact that the ultimate decision maker was manipulated by another with evil intent.

In the past, however, some courts have been unwilling to hold companies liable if the ultimate decision  maker (the cat's paw) did not act with discriminatory intent.  Companies shielded themselves from  liability in a cat's paw situation.

Justice Scalia, of all people, shined a light on this fallacy in Staub v. Proctor Hospital decided March 1, 2011.   In Proctor, two supervisors, motivated by discriminatory animus, conspired to set up another for termination.   The two supervisors caused their manager to fire the victim by writing false reports about the victim.   The  manager was not motivated by discriminatory animus.

The Seventh Circuit Court of appeals held that discrimination did not occur because the manager himself was not motivated by discriminatory intent.  Justice Scalia, writing for the majority, reversed and held that the "employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision."

Now, in employment discrimination cases, plaintiff's can look beyond the ultimate decision maker for evidence of discriminatory intent.  If others acted with discriminatory intent and were the proximate cause of the adverse employment action then the employer will be liable.  The Staub v. Proctor decision is sound because it reflects reality.  Decision makers are often motivated by others and now these other influencers are part of the equation in employment discrimination cases.

Jezebel has a recent post entitled "If You're Fat-Phobic, You're Also an Ignorant Bigoted Idiot." Ask yourself, are you fatist? Do you form negative views of someone if they are overweight? People today openly make disparaging comments about overweight people just as they once openly humiliated African Americans.

The Jezebel post starts with the definition of bigot:

big•ot (noun): A person obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance

Admit it, many of us group all overweight people together and make unfounded assumptions about them. This is bigotry. We may assume they are fat because they are lazy and eat junk food. But, this is not accurate. Many people are overweight for other reasons. Jezebel points to Steven N. Blair who is one of the leading experts on the health benefits of exercise and who is an avid runner. But he is also a short fat guy. So there you go, you can't make assumptions about someone due to their weight. People are fat for different reasons including depression, medication, disease, eating disorders etc...

Statistics show that most people in America struggle with their weight. The National Health and Nutrition Examination Survey (NHANES) found that 32.7 percent of U.S. adults are overweight, 34.3 percent are obese and 5.9 percent are extremely obese. Since more a third of our population is obese, discrimination against the obese impacts millions of people.

Some states have employment discrimination laws that protect the obese and overweight. Years ago I handled a weight discrimination case that received world-wide attention. The case involved a woman who worked for a large milk company and the owner fired her for being too fat. The media went crazy over the case and articles appeared around the world and the case was featured on Court TV. In that case, we used a state law that prohibited disability discrimination and obesity was considered a disability under that state's law.

Discrimination against the obese is a serious problem but it is largely ignored. According to the Obesity Action Coalition, "obesity is highly stigmatized in our society. Overweight and obese individuals are vulnerable to negative bias, prejudice and discrimination in many different settings, including the workplace, educational institutions, health care facilities and even within interpersonal relationships."

Just as race discrimination was once socially acceptable in America, weight bias is now accepted. For more information of this subject see the Obesity Action Coalition site.

A new study of employment law jury award trends concluded that New York disability and age discrimination verdicts had the highest median awards. The study shows that the median jury verdict for disability discrimination cases was $257,048 and the median verdict for age discrimination cases was $256,342. The study covered the period from 2003 to 2009. Race discrimination and sex discrimination verdicts were lower at $200,000.

These verdicts, however, change considerably based upon the court in which they are tried. Federal courts produce much lower verdicts. For example, the median jury verdict in state court for age discrimination is much higher at $332,577 but the median verdict in federal court for age discrimination cases is only $237,207. Likewise, the median state court verdict for disability discrimination cases is $280,356 while the median verdict in federal court is $240,000. Employment discrimination plaintiffs are better off in state court. Also, based on my experience, federal courts are also more likely to dismiss a case.

Both age discrimination and disability discrimination cases tend to fare well in court and especially in state court in New York. These cases often result in favorable verdicts because people can relate to them easily. Most people know that age discrimination happens and that older workers are often treated unfairly. Likewise, disability discrimination cases are also good because people generally do not want to see someone mistreated because they have an illness - the facts can be disturbing in these cases and can result in high verdicts. A disability discrimination case in Florida recently resulted in an $8 million verdict because the employer fired a woman while she was undergoing cancer treatment.

The report jury verdict trends for 2010 was prepared by Jury Verdict Research. I will post more information on these trends in the future.

I was recently reprimanded by my wife for checking my work email at a wedding. She said it was rude and she was right.

As if on cue, my wife, who is also a lawyer and works for a low-tech government office which only allowed for external email four years ago, was issued a blackberry last week by her supervisor. Now she is one of many lawyers carrying two smart phones. My poor manners aside, there are virtually no social limitations on smart phone usage, including usage of smart phones for professional purposes.

Should you be paid for the time spent on your blackberry? Of course. Check out this NPR article on blackberry usage and overtime. Under the FLSA, time spent communicating with your employer or otherwise working on your crackberry is compensable. If you are a non-exempt employee who spends a tremedous amount of time on your blackberry and feels...well...instinctively undercompensated, you're probably right. Don't rest on your hunch, call for a free screening.

I have screened hundreds of overtime cases. In my practice, the following three categories of nonexempt employees under the FLSA are the most blackberry dependent, misclassified and undercompesated (i.e. abused):

1. IT employees, including help desk employees and systems engineers;
2. Pharmaceutical sales representatives;
3. Staffing recruiters (incredibly long hours and hard work - hats off to these employees - case law says you should be getting OT if you aren't involved in project management and post-recruitment supervision).

Smart phones are embedded in the culture. My 3 year old is adept with my iphone; she knows how to find the games she likes and will undoubtedly be asking for one before she is 10. Frightening. There's no turning back. However, you should not let your employer abuse the popularity of these phones by discounting the time you spend on them. Use your blackberry to call for a free screening.

At our law firm, we focus on representing employees. In these cases, we usually find ourselves up against a very large corporation with a lot more money to play with. The employers usually hire a big law firm with hundreds of lawyers. Even though the employers might have more money, in today's economy both sides need to focus on efficiency.

Today in the What About Clients blog (aka What About Paris?), the post is "Depositions: Quit wasting time and money." The point of this post obviously is that depositions are often a waste of resources. I could not agree more. Since we represent the economically distressed employee, we often limit our depositions and try to take short depositions or no deposition at all. The company lawyers, on the other hand, often take longer depositions.

In the What About Clients post, they ask "Why use deposition time to learn things you and yours can learn quickly and inexpensively and lash together from: Phone calls, live humans, your client, client employees, ex-girlfriends, ex-husbands, ex-bosses, bartenders, town drunks, libraries, American Legion halls, store clerks, hopeless gossips, old dudes in cafes who drool on their shirts, neighborhood urchins, newspaper reporters--and even the most rudimentary Google search?"

In law school, they don't teach you to go out and talk to old dudes in cafes or town drunks, instead they focus on the books. Upon graduation, lawyers (myself included) find ourselves in suits and fancy office buildings surrounded by people just like them. So instead of going out and digging around to learn the facts, they just take depositions in the antiseptic environment of a law firm conference room. Sadly, the real story rarely comes out. It is not a natural environment that lends to open communication.

The point is that we (as lawyers) could probably do a better job of finding the truth if we stepped out of our comfort zones and looked under the rocks for information. Depositions are rarely efficient and don't always elicit the whole truth.

The same ground-ball disability discrimination case passes through our firm every three months. It usually unfolds like this - a potential client calls and informs us that he or she is ineligible for FMLA leave and is being told that his or her position will not be held open if he or she opts for a short leave to accommodate the need for medical treatment for a chronic disability. My advice - let them fire you, sit back and wait for your settlement and watch as the HR representative who fired you is him or herself fired. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation under the Americans with Disabilities Act when necessitated by an employee's disability. While the Second Circuit has not ruled on the issue, many other circuits, district courts throughout the Second Circuit and the EEOC have determined that unpaid leave - even leave beyond that which is permitted by a company's policies - is a reasonable accommodation provided that the company does not face an undue hardship in providing the accommodation. In fact, a federal judge in the Northern District of New York recently refused to dismiss a complaint on a defendant's motion to dismiss where the plaintiff had been fired during a 9 month unpaid leave finding that the plaintiff had alleged a prima facie case of disability discrimination for failure to accommodate. As many an HR employee has learned the hard way, the right to unpaid leave for medical treatment of a disability is protected by both the FMLA and the ADA for qualifying disabilities.

The FMLA permits employers to require employees to use their accrued paid vacation leave and their sick leave for some or all of their FMLA leave. According to the FMLA regulations, an employer can require paid sick leave to run concurrent with FMLA leave. However, under no circumstances can an employer penalize an employee for taking FMLA qualifying leave as sick leave. One very common abuse is the establishment of point-based policies which penalize employees for each unexcused absence, whether the absence is FMLA qualifying or not. These policies clearly violate the law. Recently, we successfully litigated a case against a multinational corporation with a policy which allowed for the accrual of points even for excused, FMLA qualifying absences. The company narrowly avoided a class action and was forced to pay the employee three times her yearly salary for this costly mistake. If you think your employer has violated the FMLA, contact us for a free screening to discuss your rights.

This is a very hard question to answer. I usually ask a few questions before providing a response - do you want to? Why? The first thing you need to do is look in the mirror and ask why you want to leave. If you can convince yourself (or maybe your spouse or another trusted person in your life) that you are not being treated fairly and need to leave, then you should start to plan a departure. Don't make a hasty decision. With few exceptions, you can't take back a resignation, and if you have access to sensitive company information, your departure may be hastened if your employer perceives any threat of disloyalty.

Practically speaking, the problem with resigning is that the law does not encourage it. With few exceptions, a resignation means forfeiting your right to unemployment, recovery for having to leave the workplace due to harassing behavior, entitlement to any unpaid bonus compensation (even earned) and/or a severance payment. Why are people forced to endure unfairness? If I had a dollar for every time I answered this question, I'd be a rich man. Public policy encourages employment, even if this creates hardship for some.

If you must leave the workplace, consult with an attorney about the best way to go about it. If you are leaving due to workplace hostility, you will need to know (1) what you are allowed to remove from the workplace, (2) what you should say/do on your way out and (3) what type of treatment and compensation you can expect from your employer after you resign.

My seven month old daughter hardly every blinks. My wife and I noticed this at some point in the fall and debated the origin and seriousness of the condition. In my uninformed opinion, low frequency blinking is a genetic characteristic. My wife was unconvinced and had her checked out by our pediatrician, who said it wasn't a problem (but didn't elaborate).

Why do babies blink less than adults? As it turns out, a number of factors contribute to low frequency blinking in babies, including less stress and more sleep than adults (go figure).

I was not entirely wrong. There is some evidence to suggest that low frequency blinking is an inherited trait. So could an airline require genetic testing for pilot candidates in the hopes of weeding out high frequency blinkers and identifying low frequency blinkers? If the condition is genetic, probably not. In the last 10 years, the federal government, and many local governments, have passed legislation prohibiting discrimination in employment based on genetic predisposition.

Too far fetched? Think again. Disability discrimination claims have originated this way. In fact, the Burlington Northern Santa Fe Railroad was sued by the EEOC for requiring that their employees who file claims for work-related carpal tunnel syndrome undergo genetic testing for a genetic deletion that has been proposed to make a person more susceptible to the condition. Before it went to trial, the Burlington Northern Santa Fe Railroad settled the lawsuit and stopped requiring genetic testing for their employees.

I frequently receive calls from potential clients who have been fired after reporting a supervisor's affair with a subordinate. Is it illegal to fire an employee for reporting a supervisor's affair with a subordinate? The short answer: probably not. The EEOC does not consider isolated incidents of "sexual favoritism" to be violations of Title VII. However, coerced sexual conduct by a supervisor may constitute quid pro quo harassment, and "widespread favortism" may give rise to a hostile work environment claim. What is "widespread favoritism"? Generally, it means more than one affair in the workplace resulting in greater opportunities for paramours. The EEOC, and many state and federal courts, have determined that "widespread favoritism" communicates to all female employees that they can obtain job benefits only by acquiescing in sexual conduct. I represented an employee who was fired for reporting his supervisor's affair. In a complete coincidence, a year later, I was contacted by the paramour seeking to sue the same employee for defamation. Workplace affairs are a nasty mess. Nobody should be forced to work for someone who promotes paramours, but if you must, play the game long enough to find another job. If you feel truly humiliated and degraded by a culture of affairs and meritless advancement, call a lawyer. If you are having an affair with a subordinate, do yourself and your employees a favor - stop.

Did you catch Steve Carell’s hilarious exit interview of fellow (and now former) NBC employee Conan O’Brien on The Tonight Show? Carell’s deadpan mockery of the exit interview hardly exaggerates the reality. HR professionals are trained to ask personal questions to probe for morale problems or discrimination which may have motivated an employee’s resignation, often feigning sympathy before coldly asking for keys, badge and your copy card.

Hold your head high in an exit interview. Be forward and blunt, and be candid about discrimination, particularly sexual harassment. If you bring a lawsuit, your statements in your exit interview will be exhibit A. If you decide to play nice and fail to raise discrimination as a reason for leaving, you will lose a tremendous amount of credibility and face an uphill battle in court.

Today’s National Law Journal covers a recent 1st Circuit ruling that allows pending employment discrimination claims to be flushed down the bankruptcy toilet.  The article says that this was a case of first impression.

In that case, an employee filed a disability discrimination claim against U.S. Airways with the EEOC and the Rhode Island Human Rights Commission.   The airline then filed bankruptcy and the discrimination claim became part of the bankruptcy case.  

The plaintiff received a notice of claim and did not respond because she thought her claim was covered by the airline’s insurance policy.   The bankruptcy court later approved the airline’s reorganization plan and the company emerged anew from bankruptcy.  

The Rhode Island Commission on Human Rights later dismissed the plaintiff’s claim and she filed a federal discrimination claim against U.S. Airways.   But the plaintiff had her claim promptly thrown out of court because the judge ruled that her case had been discharged in the airline’s prior bankruptcy case.   The plaintiff appealed and lost. 

The Court of Appeals for the 1st Circuit reasoned that a pending discrimination claim is just like any other claim for money and is subject to  discharge in bankruptcy.  According to the Court, a discrimination claim is just like a pending invoice from plumber or the water company.   But wait, isn’t there a difference between vender invoices and unconstitutional conduct? 

The Delaware Employment Law Blog has released its annual list of the top 100 Employment Law Blogs. It is a good resource for current information on employment law.

Mark Toss from the Manpower Employment Blawg notes some great new trends for employee rights. Mark obtained his information from the latest study from Jury Verdict Research. I just ordered my own copy of the study from here. Here are some of the highlights from Mark’s post.
1. Median Employment Verdicts are up 60% from last year to $326K from $208K
2. Employees had a 61% win rate
3. Employees should avoid federal court because they have a better chance of losing and will recover less money if they do win.
4. Employees win more money and more often in state court.
5. Age discrimination cases have the highest win rates and the highest verdicts
6. The average employment settlement was $90,000, a 20% increase over last year.
These are great numbers for employees. The statistics were not nearly so good in past years so this is a great new trend for employee rights.

Yesterday I was talking to a friend, Max (not his real name) who is a high level executive for a large firm in New York City. Max had to lay off people lately and worked with human resources to select people for lay off. He was joking around about how ridiculous the lay off process is at his firm. He said that the real reason for firing people is hardly ever mentioned. Instead, HR uses pre-formulated reasons that often have no connection to reality. He said that when he picks someone for termination he just picks the people who he does not like and who are not doing a good job. He said that if it was up to him he would tell people the real reason they were fired - like, sorry Ted, I had to let someone go and you are always late so I chose you." But instead, Ted is told by HR that "due to a job redundancy and downsizing parameters, your title has been eliminated." So Ted will never know why he was actually fired and might even suspect foul play since the truth was not told. Ted may go see an employment lawyer and since Ted is 62 years old and was given a bogus reason for termination, Ted might think he was fired due to age discrimination. But if the HR people would just tell Ted he was fired for being late, then Ted might not suspect age discrimination. I bet that a lot of employment discrimination cases could be avoided if companies just told the straight and simple truth when they fired people.

The New York City Human Rights Law is a gem. It gives New York City employees more rights than the federal and state anti-discrimination laws. If employee oriented law firms would start using this law more, the judges would become more familiar with it. Now it is rarely used and when it is used it seems to be widely misunderstood as the judges assume it mirrors the federal and state employment laws. But it does not. It goes further and is stronger. Employees and their lawyers should take a good look at this law and some of the new cases that have been published under this law. Here is a great resources - the Anti-Discrimination Center has the full text of the NYCHRL and links to some good case law. If you want to know what employers think of this law, read this article. Companies realize that it is harder to obtain summary judgment under this law. This is good news for employees. Even the employment defense firms realize that this law is good for employees, so employees should start using it.

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I know Judge Sotomayor and I can say without any reservation that she will be an excellent addition to the U.S. Supreme Court. Back when I was an Assistant Attorney General in New York City, I tried an employment discrimination case before Judge Sotomayor in the Southern District of New York. I represented the defendant, the New York State Prison system. The accusations against the State were serious. But Judge Sotomayor was fair to both sides. There were many motions that she ruled on along the way and she came to the right decisions. She followed the law. She is brilliant and tough. She brings the best of the lawyers who appear before her because she makes it known that she expects the lawyers to do their job well.

I liked her so much that after the trial, I asked her to give a talk at the Attorney General's Office on trial practice. She agreed and gave a great talk. Even back then when she was a trial judge, I remember thinking that she was one of those judges who just might make it to the U.S. Supreme Court. This country needs more people like her. She is a rare find and I am glad that she will be on the Court soon.

I was reading an interesting blog post on The Ohio Employers Blog entitled “6 Tips to Avoid an Employment Lawsuit” and it brought out several key indicators that employees should consider if they get fired. If you have recently lost your job, ask yourself if any of the following four factors are present.

1. No Reason Given for your Termination

If a company fires someone, they will have a good reason for it. If your company is honest with you they will tell you the reason. In fact, a good company will have given you advance notice of the reason. But if your company does not give you a reason for your termination, then you should be suspicious. Let me give you a real life example. I have a 14 year-old son and he normally gets home from school at 3 p.m. On day, he showed up at 2 p.m. and I asked him why he was home early. He said, “no reason.” Well that smelled funny and further investigation revealed that he got in trouble at school and was sent home early. My son tried to pull a fast one. Some companies are just like teenagers who think they know it all and they try to pull fast ones too. Don’t believe it if it happens to you. Inquire further and if you don’t get a straight answer, think about calling a reputable employment lawyer because you might have a case

2. Bogus Reason Given for your Termination

The next tell tale sign of underhanded conduct is the bogus reason for termination. Sometimes companies try to put employees on the defensive by making false accusations of poor performance. It is a pretty good technique and it probably prevents a lot of lawsuits. But don’t fall for it. If you are doing your job and get fired for reasons that are plainly false, then your company might be trying to hide an illegal reason for terminating you.

3. Termination after Good Evaluation

If you are fired for alleged poor performance and you also have a history of positive performance evaluations, then you might have a case. The companies allegations of poor performance will be contradicted by it’s own evaluations. A termination under these circumstances looks suspicious.

4. The Company Violated its own Policies

Some companies create detailed termination policies and procedures. Many mangers do not know how to follow their own rules and often violate the policies. Check your company’s policy manual. If they did not follow their own rules, then that also looks suspicious.

It comes down to honesty and candor. Good companies are honest and they will not hesitate to provide the real reason for terminating an employee. But if a company tries to cover it up, then it creates problems for everyone. The ironic thing here is that a company is free to fire its employees and it does not even need good cause. Most all employees can be fired at the will of the company. So employers simply need to be honest when they fire people.

President Obama signed the Lilly Ledbetter Act this month to broaden an employee's right to sue for pay discrimination. A great summary of the Ledbetter act was just prepared by the American Bar Association's subcommittee on Labor and Employment Law. I posted in an excerpt below.

Implications of the Ledbetter Act

The Ledbetter Act exposes employers to pay discrimination liability for alleged discriminatory decisions, even though they may have been made years earlier, based on whether they have continuing impact on an employee's compensation. Furthermore, applying to claims of pay discrimination under Title VII, the ADA, the Rehabilitation Act, and the ADEA, the Act is not limited to claims based on gender discrimination, but also applies to pay discrimination based on race, national origin, religion, age, and disability.

The broad language of the Ledbetter Act also expands the potential pool of plaintiffs in several other respects. The Act re-triggers the limitations period with each paycheck, and whenever "benefits" or "other compensation" are paid. These terms arguably include the full gamut of entitlements that an employer's discriminatory decision could impact, including health benefits, paid leave, bonuses, stock options, and pension payments, though the Act clarifies that it will not allow employees to rely on post-retirement pension payments to stretch the limitations period beyond the end of the employment relationship. Specifically, the Act is not intended to "change current law treatment of when pension distributions are considered paid." This language preserves the rule that "pension distributions are considered paid upon entering retirement and not upon the issuance of each annuity check." See H.R. Rep. No. 110-237, at 18 (2007), citing Florida v. Long, 487 U.S. 223, 239 (1988); Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004).

The Act also prohibits discriminatory compensation decisions as well as "other practices" that affect compensation. This language suggests that any practice that affects compensation-not just discreet decisions-may trigger a claim. Senator Arlen Specter proposed an amendment to the Act that would have stricken the "other practices" language, arguing it would "promote an enormous amount of litigation as to whether 'other practices' included such items as promotion, hiring, firing, training, tenure, [or] demotion." 155 Cong. Rec. S755 (daily ed. Jan. 22, 2009) (statement of Sen. Specter). Senator Barbara Mikulski, who sponsored the Senate bill, rejected Senator Specter's amendment because it did not cover "job evaluations," "classifications" and other "personnel actions that still result in discriminatory wages." 155 Cong. Rec. S758 (daily ed. Jan. 22, 2009) (statement of Sen. Mikulski, in effect confirming that the Act is intended to include a wide variety of practices.

The Ledbetter Act does not alter the limit on recovery of back pay to a maximum of two years preceding the filing of a discrimination charge under Title VII. Furthermore, the Act does not prevent an employer from asserting that an employee's claim is time-barred under the equitable doctrines of waiver, estoppel, or laches. 155 Cong. Rec. S754 (daily ed. Jan. 22, 2009) (statement of Sen. Mikulski).

Employer Perspective

Employers should ensure they have policies and procedures in place for documenting the reasons for their compensation decisions and retaining those documents and the data supporting the pay decisions they make. While retaining data can become quite burdensome and expensive over time, technology vendors are increasingly offering viable solutions, and the benefits may prove to outweigh the costs if litigation arises long after decisions are made. Employers should weigh these considerations in making compensation decisions and assessing their retention policies and programs.

Employee Perspective

The Ledbetter fix restores common sense to litigating claims involving compensation discrimination. Pay discrimination is an on-going and cumulative injury. Its harms do not become stale simply because the genesis for the discrimination occurred more than 180 or 300 days before the plaintiff filed an EEOC charge. The Ledbetter fix appropriately allows plaintiffs who are presently affected by compensation discrimination to redress that wrong, while limiting employer liability for back pay to the two years preceding the filing of the charge.

Last week, the House approved a bill granting broad protections against discrimination in the workplace for gay men, lesbians and bisexuals, a measure that supporters praised as the most important civil rights legislation since the Americans with Disabilities Act of 1990 but that opponents said would result in unnecessary lawsuits.

The bill, the Employment Nondiscrimination Act, is the latest version of legislation that Democrats have pursued since 1974.

“On this proud day of the 110th Congress, we will chart a new direction for civil rights,” said Representative Kathy Castor, a Florida Democrat and a gay rights advocate, in a speech before the vote. “On this proud day, the Congress will act to ensure that all Americans are granted equal rights in the work place.”

The House bill would make it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation.”

While 19 states and Washington, D.C., have laws barring discrimination based on sexual orientation, and many cities offer similar protections, federal law offers no such shield, though it does bar discrimination based on race, religion, ethnicity, sex, age, disability and pregnancy.

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.

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.

What IS the Glass Ceiling?
Many clients do not recognize that they may have a viable legal case of discrimination related to glass ceiling issues. The term "glass ceiling" refers to the idea that certain individuals--usually women--can see the top but cannot reach it. In other words, an individual has the credentials and experience but is never promoted beyond a certain level. Typically, these cases involve gender discrimination as well.

Glass ceiling cases are complicated and extremely fact-specific. The law recognizes that a corporation or business can have discriminatory policies even if it hires a few members of a “protected class”, individuals who are members of a group that it is unlawful to discriminate against—either by city, state or federal law. The law also recognizes that subjective criterion for judging a person’s qualifications can mask discriminatory practices.

Factors Courts Consider When Assessing a Glass Ceiling Case

--Statistics
Courts recognize that discriminatory practices are often hidden. Therefore, statistics are used to show what employers do not say but what employees already know--that certain people get promoted while others do not. A statistical analysis of a company's hiring practices is often the deciding factor in a glass ceiling case.

--Job Responsibilities
Courts also consider an individual's specific job tasks compared with those of others. In a recent Supreme Court case (Burlington Northern and Santa Fe Railway Company v. White), the court pointed out that some job duties are more desirable than others. It has also acknowledged that certain job duties are more likely to lead to promotions than others. An employee can show discrimination where she is assigned tasks that are less likely to lead to a promotion--even if they fall under the description of her job duties.

Dealing With a Potential Glass Ceiling Issue
If you think you are hitting the glass ceiling, the most important thing to do is to complain to your employer and document those complaints. Many people do not want to complain because they fear retaliation. However, it's important to give your employer a chance to fix the problem.

We get a lot of calls at our law firm from people who feel that they were treated unfairly at work. They want to know if they have a case against their employer. Sadly, it is perfectly legal to treat people unfairly at work. Most of the time we tell people that they do not have a case. So when does a person have a case?

The employment laws in the U.S. are very narrow. They only prohibit employment discrimination and certain wage payment practices. We will discuss wage issues later. Now we will focus on employment discrimination. What exactly is employment discrimination?

Employment discrimination occurs when an employee is treated differently than others because of their race, sex, disability, age, religion, pregnancy or sexual orientation. A classic example of employment discrimination is when an employer prefers men in top executive positions and passes over well qualified females in favor of men.

If you want to know if you have a case against your employer, you need to focus on discrimination. You need to determine if your employer had made decisions about you that were motivated by your race, sex, age, religion etc... If you honestly believe that your employer is discriminating against because of your race or age, for example, you might have a case. Discrimination is often subtle so it is not always easy to see.

The point here is that you need to be able to understand the difference between unfairness at work and employment discrimination. It is perfectly legal to favor one person over the other so long as it is not based on a person's race, sex, religion etc.... Keep an eye out for patterns of behavior. For example, if you see that your employer has a habit of only promoting men to certain positions or has a pattern of laying off more older people - these are signs of employment discrimination. Also, keep an ear out for words that show illegal bias such as racial slurs or comments about age. If you think that your employer is discriminating against you, you should write down what is happening and include the dates of the events and who did what to whom. These notes might be the key to winning a case because they will help you remember important facts.

By a narrow 15-14 margin, a Senate Appropriations Committee voted June 28 to approve an amendment designed to prevent the U.S. Equal Employment Opportunity Commission (EEOC) from bringing new lawsuits against companies that require that their employees speak English.

The amendment was sponsored by Sen. Lamar Alexander, R-Tenn., who argued that since the Senate has deemed English the official language, requiring it in the workplace isn’t discrimination and makes common sense.

“It’s ridiculous that employers from the shoe shop to Wal-Mart to 911 emergency callers need to be worried that they’ll be sued if they require their workers to communicate in our common language,” committee member Alexander said in a statement after the vote.

Continue reading "Amendment Aimed at Promoting English in the Workplace" »

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" »

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."

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?" »

I normally don't write more than one blog entry on the same topic but I couldn't help myself today. I just can't stop thinking about yesterday's Supreme Court 5-4 decision which makes it more difficult for women and minorities to win employment-discrimination complaints.

According to the 5-4 opinion, the court set strict time limits on filing such discrimination cases. Employees can't reach more than six months back in time to complain about discriminatory practices, it ruled. This decision is certainly a victory for businesses.

"The . . . filing deadline protects employers from the burden of defending claims arising from employment decisions that are long past," Justice Samuel Alito wrote for the majority.

The 180-day deadline is a significant restriction, particularly in wage complaints, and it prompted Justice Ruth Bader Ginsburg to urge Congress to overrule the court's majority.

"Once again," Ginsburg said for the court's minority, "the ball is in Congress' court."

She was underscoring what happened in 1991 after half a dozen civil-rights rulings by the court, then led by the late Chief Justice William Rehnquist. Congress passed what lawmakers called the Civil Rights Act of 1991. It overturned the rulings and extended protections against discrimination. For example, the 1991 law ended "business necessity" as a defense against discrimination claims.

There were over 75,000 discrimination cases filed with the Equal Employment Opportunity Commission last year, and obviously this decision will have important consequences on some of them.

The U.S. Chamber of Commerce said the decision would prevent a "potential windfall against employers," and New York City-based business lawyer Barbara Harris praised the ruling for giving employers "closure."

"The ruling essentially says tough luck to employees who don't immediately challenge their employer's discriminatory acts, even if the discrimination continues to the present time," said Marcia Greenberger, co-president of the National Women's Law Center.

The board members of the National Women's Law Center include Anita Hill, the law professor who nearly derailed Supreme Court Justice Clarence Thomas' 1991 nomination with her sexual-harassment allegations. Yesterday, Thomas joined Alito, Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy in the majority opinion.

Justices David Souter, John Paul Stevens and Stephen Breyer joined Ginsburg in her dissent.

Continue reading "Supreme Court Makes it Harder to Sue Employers" »

A divided Supreme Court ruled today that workers may not sue their employers for unequal pay because of discrimination that may have occurred years earlier.

The court ruled 5-4 that Lilly Ledbetter, a supervisor at a tire plant in Gadsden, Alabama, did not file her lawsuit against Goodyear Tire and Rubber Co. in the timely manner specified by Title VII of the Civil Rights Act of 1964.

A jury had originally awarded her more than $3.5 million because it found it "more likely than not" that sex discrimination during her 19-year career led to her being paid substantially less than her male counterparts.

An appeals court reversed, saying the law requires the suit be filed within 180 days "after the alleged unlawful employment practice occurred," and Ledbetter couldn't prove discrimination within that time period. She had argued that she was discriminated against throughout her career and each paycheck that was less because of discrimination was a new violation.

Continue reading "U.S. Supreme Court Limits Lawsuits for Unequal Pay" »

The U.S. Department of Justice sued the city this week, accusing the New York CIty Fire Department ("FDNY") of using recruitment exams that discriminate against blacks and Hispanics.

A complaint filed in federal court in Brooklyn alleges that the FDNY administered exams in 1999 and 2002 that failed to fairly measure the applicants' ability to do the job.
"The city's testing practices ... do not select the firefighter applicants who will best perform their important public safety mission, while disproportionately screening out large numbers of qualified black and Hispanic applicants," said Wan J. Kim, assistant attorney general for the Civil Rights Division in Washington.

Of the roughly 11,000 firefighters, only about 3 percent are black and 4.5 percent Hispanic, the complaint said.

The city had no immediate comment on Monday. City Corporation Counsel Michael Cardozo has argued in the past that the FDNY has taken significant strides to improve minority recruitment, and warned that a federal civil rights suit would be "ill-advised."

At our New York City employment law firm, we represent people from all walks of life - the poor and the super rich, mom and pop and the Fortune 500. The most satisfying cases are often the ones in which we help an individual victim of employment discrimination against a powerful corporation. Sadly many lawyers never get to experience the thrill of using the law to help those that need it most.

John Grisham talked about this at a commencement address at Washington and Lee University this Spring. He asked the graduates at tough question: Are you really needed? His answer was yes, lawyers are badly needed, but not in the big corporate law firms or towns with door to door law firms. Grisham said that a lot of people need help. He described the suffering and inequity he saw while researching his books. He urged the graduates to get involved with pro bono organizations such as the Innocence Project. Grisham said, “Until you use your license and your brains and your enthusiasm and your youthfulness to reach out, to reach down and to help someone less fortunate, you won’t realize the power the law has to protect people.” Representing plaintiffs in employment matters does this - it uses the law to protect ordinary people and sometimes it works.

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public Commission Meeting on how agency-enforced laws apply to employment testing and screening.

During the meeting, the Commission will hear from invited expert panelists, including EEOC attorneys and charging parties, advocates on behalf of employers and employees, and two nationally-recognized organizational psychologists. The panelists will share their experiences and perspectives on employment testing and screening, and answer questions from commissioners.

The meeting comes amid increased employment testing as employers seek lawful and efficient ways to screen large numbers of applicants. Topics of discussion will include written tests that evaluate knowledge and skills, criminal and credit histories as a basis for selection, medical exclusions in hiring, and employer best practices. Discriminatory employment tests and selection procedures are prohibited by Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act -- which are all enforced by the EEOC.

Some companies are adopting policies that require employees to only speak English on the job, causing a backlash of lawsuits alleging that such rules can discriminate against immigrants.

The English-only policies are coming as the number of immigrants in the U.S. soars: Nearly 11 million residents are not fluent in English, according to U.S. Census data, a drastic increase from 6.6 million in 1990. Nearly 34 million residents are foreign-born, according to 2003 U.S. Census data. That's up from 24.6 million in 1996.

Employers may legally adopt an English-only speaking rule if they can show it is a business necessity, such as the need for communication with co-workers and customers or safety-sensitive situations where use of a common language could prevent an emergency.

Continue reading "Employment Discrimination- "English Only" Policies" »

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" »

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" »

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 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.

According to the Equal Employment Opportunity Commission ("EEOC"), Federal job discrimination complaints filed by workers against private employers rose in 2006 for the first time in four years.

"These figures tell us that discrimination remains a persistent problem in the 21st century workplace," said the commission chairwoman, Naomi Earp.

As in past years, allegations of discrimination based on race, sex or retaliation were the most frequent complaints, according to the commission, which enforces federal anti-discrimination laws among private employers.

Allegations of race discrimination, with 27,238 charges, accounted for 35.9 percent of all filings last year.

Sex discrimination accounted for 23,247 complaints, or 30.7 percent of all filings last year. Charges based on retaliation rose to 22,555, or 29.8 percent of all complaints.

Discrimination complaints based on disability rose to 15,625, or 20.6 percent of all filings. Age discrimination came to 13,569 or 17.9 percent of all complaints filed in 2006. National origin complaints came to 8,327, or 11 percent of the total.

Religious discrimination complaints totaled 2,541, or 3.4 percent of all filings. Equal pay complaints were 663, or 0.9 percent of all filings.

The total exceeds 100 percent because individuals may allege more than one kind of discrimination in a complaint.

All categories saw complaints rise from 2005 with the exception of age and equal pay discrimination complaints.

In addition, there were 12,025 complaints of sexual harassment, with a record 15 percent filed by men. A record 4,901 pregnancy discrimination complaints were filed last year.

Additional data available at http://eeoc.gov/stats/enforcement.html

In years past, job applicants were concerned merely with their resume, now, in light of the scientific breakthroughs in genetic testing, job applicants are now concerned with their family history of disease.

A new bill was recently introduced in the U.S. House of Representatives which would prohibit employers from making hiring/firing and promotional decisions based on genetic information showing an employee may contract a disease in the future. The bill would also prevent health plans from denying coverage or charging higher premiums using those same genetic tea leaves.

"There is a consensus in our country that when a person is applying for a job, they should not be denied a job due to a family history of diabetes," Rep. Robert Andrews, D-N.J., chairman of the House Education and Labor Subcommittee on Health, Employment, Labor and Pensions, said at a hearing in early January. "There is a consensus in our country that no person should be told they're going to get fired because they won't take a genetic test."

Reps. Louise Slaughter, D-N.Y., and Judy Biggert, R-Ill., are co-sponsoring this bill which would be limited to cases where an employer intentionally seeks out genetic information about a worker and misuses that information. The bill even carves out a so-called "water-cooler" exception to protect employers from liability under the law if they come across the sensitive data inadvertently.

But Biggert said the proposed law is clear that an employer "must go out of his way" to discriminate against a worker to be liable and must "go looking" for the employee's genetic information.

The bill also requires that a worker first take his case to the Equal Employment Opportunity Commission (“EEOC”) before going to court, and damages caps are built into the law. Therefore, in companies of less than 100 workers would pay no more than $50,000 in damages, while firms with more than 500 workers would have a damages limit of $300,000.

According to a recent New York Times article, The Goodyear Tire and Rubber Company has agreed to pay $925,000 to hundreds of women who were denied tire-building jobs at its Virginia plant, the Labor Department announced Tuesday.

The payment is part of a consent decree approved by an administrative law judge to resolve a lawsuit the Labor Department filed last year on behalf of 800 women who were denied jobs at the plant in Danville, Va., over a year-and-a-half period in the late 1990s.

As a federal contractor, the company is prohibited from employment discrimination on the basis of race, color, religion, sex or national origin.

The human resources manager at Danville, John Rhodes, said in a statement, “While we do not believe that our past hiring practices were discriminatory, this settlement is in the best interest of the company.”

He said the company wanted to avoid “the cost and distraction of protracted litigation with the federal government.”

The department sued in June, asserting that from January 1998 to June 1999, Goodyear followed “a hiring process and selection procedures that discriminated against hundreds of female applicants for entry-level positions on the basis of gender.”

As part of the decree, Goodyear will hire up to 60 of the women who still want to work at the plant, provided they satisfy Goodyear’s new requirements for entry-level jobs.

The company also agreed to conduct annual training for managers on equal-employment opportunity and affirmative action.

In New York, and around the country, employment discrimination cases are avoided by having potential litigants sign a release. Releases are intended to end or avoid controversy, but sometimes they do the opposite. Courts have recently voided releases for three different reasons. Those reasons are discussed below.

First, there is a U.S. Department of Labor regulation that prohibits any waiver of FMLA rights - unless a court or the DOL first approves the waiver. Courts are catching on and invalidating releases that purport to waive FMLA matters. In Dougherty v. Teva Pharmaceuticals USA 2006 WL 2529632 (E.D. Pa. Aug. 30, 2006), the court held that a release did not preclude a former employee from suing the company for FMLA (Family Medical Leave Act) violations even though the release said so. The court relied on the DOL regulation that prohibits waivers of FMLA rights. Accord Taylor v. Progress Energy, Inc. 415 F.3d 364 (4th Cir. 2005).

Second, releases that prohibit an employee from filing an agency charge is not only invalid, it is actionable. Last August, a district court held that a release that prohibited an employee from filing an EEOC charge was retaliatory and the employee could sue the company for retaliation. EEOC v. Lockheed Martin Corp. 444 F. Supp.2d 414 (D. Md. 2006). The court held that a broad covenant not to sue that includes EEOC charges is unlawful and constitutes retaliation. It is well settled that a release cannot prohibit the filing of EEOC charges. See, e.g., EEOC v. Cosmair, Inc. 821 F.2d 1085 (5th Cir. 1987). The new Lockheed decision now indicates that such language amounts to retaliation and an employee can sue if one is presented for signature.

Continue reading "Employment Releases that Don't Work" »

Are the following questions discriminatory: Have you ever set a world record in anything? Have you ever made a profit running a dog walking business? Do you prefer to work alone or in groups? When did you first get excited about computers?

These are the kinds of issues that may soon creep into the employment law arena as companies begin to change the way they hire people. Smart companies are recognizing that traditional recruitment methods such as the job interview are ineffective. Laszlo Block, the Vice President for People Operations at Google believes that "interviews are a terrible predictor of performance." Google is now creating a new system to select employees.

The new frontier of employee selection will move away from subjective methods such as the job interview and will attempt to focus on quantitative data. Academic research has established that quantitative information on a person's background, called "biodata," is a valid way to look for good workers. Michael Mumford, a psychology professor at the University of Oklahoma who specializes in talent assessment, says that the use of biodata is an effective way for companies to find employees. Professor Mumford said that leadership traits can be identified by asking candidates if they ever started a club in high school.

Continue reading "New York and Google: Employment Law and The Future" »

New York City is one of a handful of localities that make it illegal for an employer to discriminate against someone on the basis of their status, or perceived status, as a victim of domestic violence. (New York City Administrative Code §8-107.1) I didn’t know about this provision of the law until I heard someone discussing it at a recent NELA (National Employment Law Association) conference. Thank goodness I did, because the following week we got a call from a potential client saying that her employer fired her after they found out that she had an order of protection against a former boyfriend. She is now a client.

When I began investigating the case, I discovered only one published New York opinion on the topic, Reynolds v. Fraser, 5 Misc.3d 758 (Sup. Ct. New York Co.). In Reynolds, a female corrections officer was on sick leave from her job, and her employer was trying to ascertain her whereabouts. When she wasn’t at the address they had on file, she was terminated for abusing the sick leave policy. It turns out that the employee sought refuge in a shelter to escape an abusive relationship. The court held that the employee’s termination for abuse of the sick leave policy was discriminatory against victims of domestic violence.

Another great source of information is the Legal Momentum website (http://www.legalmomentum.org), the organization formerly known as Now Legal Defense Fund. The site is not only a great resource for lawyers all over the country, but also provides useful information for non-lawyers, as well. They even feature sample employment policies for employers.

A novel issue that can arise in these types of cases is one of confidentiality. Many victims of domestic violence (let’s also not forget that this can include men, as well) don’t want their names published in court documents. If this is a concern of your client, Legal Momentum offers suggestions on how to file a complaint that can protect your client’s anonymity.

These cases aren’t as common as other types of employment discrimination, however, they are interesting, and it is valuable to have resources on a burgeoning area of the law.

Here is an interesting twist on wrongful termination and race discrimination. Is the employer liable under federal anti-discrimination laws when the manager who did the firing had no discriminatory motive but the person recommending the firing had a discriminatory animus? This situation is commonly referred to as “Cat’s Paw.”
The Supreme Court has agreed to take just such a case and help us all determine the answer. In BCI Coca-Cola Bottling Co v. EEOC, an HR manager decided to fire an employee she didn't know, based mainly on information from a supervisor. The supervisor has a history of racism. So the question is whether the employer is insulated from liability because the manager didn't even know the employee’s protected status as a racial minority. It should be noted that there was an independent review of the terminated employee’s personnel file.
This decision could have a serious impact on employment litigation. Should the Supreme Court decide not to hold the employer liable they have created a shield for racial discrimination at lower levels. Should they find liability then employers will have to increase vigilance and let the litigation ensue as to how much vigilance and review is enough to avoid a Title VII lawsuit in a cat’s paw situation.

I think that employment discrimination is a problem in New York, but the Chinese have it worse. According to the Daily China, about 85% of the Chinese work force believes that discrimination at work exists.

A survey of 3,424 workers in 10 large cities in China, including Beijing and Shanghai, found that most of the discrimination is based on gender, marital status, appearance and height. Also, the survey found that employers discriminate against people from certain regions or areas such as Central China’s Henan Province due to negative impressions about the region. People from Beijing also have a bad rep for being lazy.

Employment discrimination is supposed be illegal in China – but the law is not enforced. China’s only labor law was passed 13 years ago and it says that workers shall not be discriminated against due to ethnicity, race, sex, or religion. The Chinese government has made promises to take action – but so far nothing has happened. In 2005 China ratified an international convention on employment discrimination and the National People’s Congress (NPC) plans to review further legislation this year. But the law is still an empty promise.

In my practice as an employment lawyer in New York, I come into contact with a lot of people who think that employment discrimination does not exist. Often they are people who, in my opinion, are detached from reality and live insulated lives. My parents, for example, wonder what I do – they just do not get it – but they live in a wealthy white suburb and no one ever discriminated against them. But I think discrimination in New York and across the country is alive and well.

I think I first saw how bad it can be when I worked as a prosecutor in Los Angeles. I saw the hate, felt the racial tension, drove down streets during the LA riots with houses burning around me. I worked with some members of the LAPD that seemed racist – the same cops just happened to see minorities dropping bags of cocaine in front of them – over and over again – we had a name for it – Dropsy. Oddly white people never seemed to drop their cocaine in front of these guys.

But the most striking thing was the racial composition of the jails. When I visited the prisons, I was amazed – it was so obvious that the system was biased. My parents never went to the jails in South Central Los Angeles – most people don’t – it is an unpleasant truth that people do not want to face. I was embarrassed to be part of the system that did this to people. I think that is why I got into this work – representing plaintiffs in employment discrimination cases.

Pregnant women in New York not only worry these days whether they will find a seat on the subway during rush hour, an increasing number are worried about their job security as their belly grows.

While other discrimination claims are on the decline, according to the EEOC, pregnancy discrimination claims have risen from 4,160 in 2000, to 4,730 in 2005 (see http://www.eeoc.gov/stats/pregnanc.html).

Although more extensive than other states, New York Pregnancy Laws are still somewhat limited in scope. For example, a pregnant worker must receive the same fringe benefits (including seniority accrual, sick leave, health, and medical coverage) received by employees for disabilities not related to pregnancy.

Under New York’s Human Rights law, private-sector employees are entitled to 26 weeks of leave for pregnancy disability and recovery from childbirth. The law covers all employers with one or more employees. However, New York state public-sector employees are entitled to seven months of unpaid parental leave from the date of delivery. In addition, state employees may be granted up to two years of unpaid leave for pregnancy or childbirth.

Two federal laws loosely guide the New York laws: Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA).

Continue reading "New York Pregnancy Discrimination—What Are Your Rights In The Workplace?" »

Richard Hewett, a 49 year-old from New Hampshire, is suing Donald Trump, the Trump Organization Inc., Trump Productions, producer Mark Burnett, Mark Burnett Productions and three affiliated California companies for age discrimination after the hopeful applicant was not chosen to be a contestant on the NBC's television show The Apprentice. Mr. Hewett claims he was rejected because of his age and he claims in his lawsuit filed last week in U.S. District Court that only two of the finalists over six seasons have been over 40. In response, Donald Trump stated that "[there have been] very few people over a certain age apply to be on the show. If they did and we liked them, we would love to cast them on the show."

MR. Hewett’s age claim is likely based on The Age Discrimination in Employment Act of 1967 (ADEA), as amended, which protects individuals, who are forty (40) years of age, or older, from employment discrimination based on age. Pursuant to the ADEA, employers are prohibited from discriminating against any employee, or applicant for employment, because of his/her age in connection with hiring, termination, promotion, demotion, compensation, job training, job placement, discipline or any other term, condition, or privilege of employment.

The New York office of the Equal Employment Opportunity Commission ("EEOC") has granted former Sony BMG employee Tamieka Blair, the right to sue, after ruling that Sony “overwhelmingly” targeted black employees after a merger and restructuring in 2004.

In its ruling, the EEOC found that Sony BMG intentionally laid off its black employees from a Manhattan sales office while keeping its white employees.
Specifically, the EEOC found that six black employees of the Manhattan office were terminated, including three who accepted a severance package and three who were terminated "involuntarily." The only black worker who was not terminated was a mail clerk. None of the company's eight white employees were released.

Sony BMG insists it based its layoff decisions on job performance but the EEOC claims the company had "no documented procedure for determining who the best players were," and "lacked performance standards.".

Thanks to “Jason” from http://www.rapbasement.com/content/view/2326/35/ for the information.