We are pleased to share a favorable decision from the 2nd Circuit regarding Sexual Harassment claims under the New York City Human Rights Law. The case is Mihalik v. Credit Agricole Cheuvreux North America, Inc.
The full text of the decision is available on the Recent Happenings section of our website.
Victims of employment discrimination often suffer harassment over a period of years and, as a result, may be unable to recall the specific circumstances of each act against them. Adding on the fact that discrimination is rarely done openly, and there is never a “smoking gun,” a person alleging discrimination may feel that fighting discrimination is too uphill a battle to try.
In Rivera v. Rochester Genesee Regional Transportation Authority, 702 F.3d 685 (2d Cir. Dec. 2012), the Second Circuit, the federal appellate court for New York, Vermont and Connecticut, clarified what a plaintiff must be required to prove in a hostile environment case.
In Rivera, the plaintiffs alleged that his supervisor and co-workers repeatedly made discriminatory comments to him, including calling him “spic” and saying, “What’s that smell . . . there is Taco Bell.” The plaintiffs, however, were unable to recall specifics regarding each instance and also pointed to other acts of bullying that were not overtly racial. The lower court had granted the company’s motion for summary judgment, which dismissed the case, saying that harassment the plaintiffs experienced arose from a “personal conflict” and that the “offensive language” over a period of years was not enough to permit the claim to go to a jury.
The appellate court, however, reversed the lower court and permitted the plaintiffs’ claim to proceed to a jury. The court found that witnesses who stated that the supervisor used racial slurs outside of the plaintiffs’ presence demonstrated that race discrimination could have motivated the supervisor, and cautioned that “a hostile work environment claim need not be supported by direct evidence of explicit racial harassment.” The court also found that the although one of the plaintiffs could not provide all details about his claim, “he provided enough details,” so that his claim should not have been dismissed. The court also noted that the plaintiffs did not contradict their prior answers, so that it was not proper for the lower court to disregard their testimony.
We are pleased to see the court acknowledge, as it has before, that employment discrimination victims who fight back should not have their claims dismissed merely based on the court’s belief that the plaintiff did not provide “enough” proof.
New York City will soon have the nation’s broadest laws barring employers from rejecting out of work applicants. When the law takes effect in June, New York City will be the fourth location in the country with some type of legislation against discrimination against unemployed job-seekers.
The law prohibits employers from basing hiring, compensation, or employment terms and privileges on an individual’s current unemployment status, absent a “substantially job-related reason” for doing so. The law does not prevent employers from looking into the background surrounding an applicant’s separation from his/her prior employment. It also does not prevent employers from considering “substantially job-related qualifications,” including professional or occupational licenses or certifications or minimum levels of education, training, or experience.
New York City’s law will allow applicants to sue employers for damages (compensatory and punitive) over claims that they were rejected because of their unemployed status. A prevailing party would also be entitled to recover attorney’s fees.
City Council Speaker Christine Quinn was quoted as saying “We cannot and will not allow New Yorkers who are qualified and ready to work and looking to work to have the door of opportunity slammed in their faces.”
Unemployment discrimination laws have been floated around the nation in recent years. President Barack Obama proposed one in 2011 and New Jersey, Oregon and Washington D.C. have passed laws prohibiting employers from listing “current employment” as a requirement in a job advertisement.
Since enacting the first such measure in 2011, New Jersey has cited at least one company for an advertisement that prohibited jobless applicants from applying.
Jobless applicants believe it is unfair to be required to have a job to get a job, particularly after so many years of exorbitant unemployment and layoffs. According to the Federal Bureau of Labor Statistics, more than 1 in 3 unemployed workers has been looking for a job for at least 6 months.
In late-January 2013, the federal Equal Employment Opportunity Commission (EEOC) released its annual report of claims filed for the previous year. While there are state laws protecting employees against discrimination in the workplace as well some protective city laws, the EEOC is the federal agency which regulates and enforces the federal laws preventing employment discrimination, namely Title VII, the ADEA, and the ADA.
From the data provided by the EEOC, there were 99,412 private sector workplace discrimination charges filed during fiscal year 2012. This is a decrease from 2011 when nearly 100,000 charges were filed. Additionally, race and sex discrimination are the most common types of claims made, along with retaliation for making a complaint of discrimination. It is important to note that in the EEOC statistics, sexual harassment and pregnancy discrimination are included under the larger sex discrimination classification.
The past year a very active one for the agency as it filed 122 lawsuits to secure damages for violations of the federal laws. Additionally, according to its press release, the EEOC’s staff resolved 254 lawsuits for a total monetary recovery of $44.2 million and completed 240 systemic investigations which, in part, resulted in 46 settlements or agreements, amounting to $36.2 million for the victims of discrimination. In particular, the use of mediation or conciliation prior to the institution of litigation by claimants increased by 18 percent from 2011. This increase in the use of alternative dispute resolution such as conciliation or mediation is particularly significant as these methods have grown more prominent over the past several years, and, in my cases, affords both the claimant and respondent to the discrimination charge the opportunity for a prompt and equitable resolution prior to the institution of any litigation.
The complete set of EEOC statistics for 2012 and earlier years as well as the EEOC’s press release containing analysis of these figures is available at the EEOC’s web site.
A former model on the long running game show, the Price is Right has won a jury verdict of $777,000 in a suit against the show, claiming that she was discriminated against because of her pregnancy.
After taking her maternity leave from the show, Brandi Cochran said she was rejected by the producers because of her pregnancy and a jury has agreed.
In bringing a claim for pregnancy discrimination, an individual such as Ms. Cochran must establish that: (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered adverse employment action and that (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. These four factors constitute the framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In discrimination cases, Plaintiffs such as Ms. Cochran do not have to establish that discrimination was the employer’s only motivation but simply that discriminatory bias played some role in the employment decisions. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (a plaintiff must only show that discrimination was a “motivating factor.”).
In the case against the Price Is Right, Ms. Cochran and her attorneys have convinced the jury that her pregnancy and subsequent maternity leave motivated the company’s refusal to hire her back, at least in part.
Now that Ms. Cochran has a verdict in her favor, the court will address the question of whether Ms. Cochran is entitled to punitive damages to punish the Price is Right for its unlawful behavior. The standard is set forth in caselaw such as Tse v. UBS Fin. Servs., Inc., 568 F.Supp.2d 274, 310 (S.D.N.Y. 2008) in which the court held that “plaintiff was only required to show that [defendant] acted intentionally and with reckless indifference to the perceived risk that his actions might violate the law. Because the jury could reasonably have found that plaintiff made that showing, its decision to award punitive damages may not be disturbed.”
The New York Times reported earlier this week that national clothing chain Wet Seal has been found to have discriminated against African-American employees by the Equal Employment Opportunity Commission (EEOC). The determination issued by the agency stated, among other things, that “corporate managers have openly stated they wanted employees who had the 'Armani look, were white, had blue eyes, thin and blond in order to be profitable.’” Additionally, there is apparently an e-mail from senior leadership within the company stating that “African Americans dominate — huge issue.”
This determination was issued after Nicole Cogdell and two other former Wet Seal employees filed a race discrimination in Federal Court in 2009. According to the Times article, attorneys for the plaintiffs are seeking to broaden the case to the level of a class-action which may allow other potential plaintiffs to be included in the case.
Schwartz & Perry is a leading plaintiff’s side employment discrimination law firm. If you believe you may have been the victim of race discrimination, please give our office a call to discuss your situation with one of our attorneys.
Marilyn Ducksworth, the long time Director of Communications for Penguin Group USA, filed a complaint of age discrimination against the company on September 5 in New York Supreme Court. As reported by The Washington Post and Publishers Weekly, Ducksworth, who is presently fifty-six years old, worked with Penguin Group as Director of Communications for 27 years and worked with authors such as Betty White, Ken Follett and Pulitzer Prize winner Junot Diaz.
In her complaint, Ducksworth alleges that Penguin discriminated against her by, among other things, diminishing her executive responsibilities, "dismantling her staff,” and “interfering with her internal and external professional relationships.” Ducksworth alleges that Susan Petersen Kennedy, Penguin's President, "began a campaign to marginalize Ducksworth and other older, long term members of Ducksowrth’s staff.” She also claims that one Penguin executive told her that the publisher wanted employees who were “faster, stronger and more nimble because the older, slower version doesn’t work anymore.” Ducksworth, in her complaint, states that a new plan was enforced by Kennedy to remove Ducksworth from overseeing corporate communications and from her roles at Putnam and Riverhead. Ducksworth claims that she was required by Kennedy to demote two key publicity team members, both of whom were about 60 years old, and replace them with two employees under 40 years old.
Ducksworth resigned from Penguin last week and, since her resignation, at least one industry insider, Robert Gottlieb, has praised her career. Gottlieb, a literary agent and chairman of Trident Media Group, posted a message on an online industry newsletter, PublishersMarketplace.com, which stated, “She was a major part of Tom Clancy’s success and Catherine Coulter’s to name a few. During her time at Penguin her management of big authors’ careers was a stunning success. She was always a team player. Her professionalism is unmatched. Her caring work for her authors was boundless.”
Ducksworth is not the only Penguin employee complaining of age discrimination. Min-Ho Cha, another member of Ducksworth staff, left her employment at Penguin in June after her charges of age discrimination were allegedly met with retaliatory actions. Min-Ho Cha is 49 years old.
Eric Glass, Penguin spokesman, issued a statement denying Ducksworth’s claims, “If a complaint is filed, the true facts will be presented to the court in due course. We can state categorically that it was Marilyn Ducksworth’s decision to resign and that Penguin does not condone, nor was there, any age discrimination or retaliation involved in her decision to leave.”
Additional coverage of this story can be found in the Washington Post and in Publishers Weekly.
A former Vice President at MTV is suing its parent, Viacom for discrimination. Andrea Fair who was hired by MTV in 2005 and promoted in 2008 has claimed that she was treated differently by her male supervisor on account of her age and her gender. Fair, who has more than 20 years in the music industry, has alleged that she was bullied by her male manager and that the company failed to take any action in response to her complaints. Specifically, Fair alleges that her responsibilities were diminished and her role as VP minimized because of her age and her gender.
The suit included allegations her male manager would routinely cut her off on conference calls and accused Fair of being “too emotional” which is a common complaint that women often hear in the workplace based on outdated gender stereotypes.
Fair has alleged that younger women were given preferential treatment and positions for which they were not qualified. The complaint alleges that part of the age and gender discrimination was that the men in senior management would give the younger and less qualified employees important assignments such as sending them to the MTV movie and music award shows and assigning them video shoots with celebrities such as Rihanna. Specifically, Fair has claimed that her manager told her that the company did not have the money to send her to the awards shows, but then the company sent male colleagues and a younger female colleague.
The controversy came to a head in 2010 when Human Resources notified Fair that the younger woman had lodged a complaint against her for being aggressive and controlling. Viacom ultimately fired Fair as a result of these allegations which has only fueled Fair in her effort to expose the unequal standards that exist at the company. For example, Fair has cited a list of male employees who were not punished by the company for their own misconduct.
Fair is not just seeking her lost wages and other compensatory damages but that the company be directed to take affirmative steps to ensure that alleged unlawful practices be eliminated.
There have been more and more discrimination suits brought by women at Fortune 500 companies in recent years which is a signal that women in the workplace are still being victimized because of their gender. The Equal Employment Opportunity Commission’s reported statistics on sex [gender] discrimination shows that in the last four years reported cases of discrimination have increased over the prior years. One explanation for this upswing is that in a weaker economy, when jobs are being eliminated, women are the first to be targeted.
Schwartz & Perry represents plaintiffs in cases of employment discrimination and retaliation under the federal, state, and city laws. Additional information regarding the relevant human rights laws is available on Schwartz & Perry’s website, which is at www.schwartzandperry.com.
Earlier this summer, over the course of several weeks, a major age discrimination trial took place in Federal Court in Downtown Manhattan. The suit was brought by former WPIX-Channel 11 news director Karen Scott, who is now 63 years old. The allegations centered on Scott’s claims that she was fired in 2009, when she was 60 years old, as part of a concerted effort to remove older employees from the workplace. The defense argued that age did not play a role, rather, it was lower ratings which in-turn led to lower advertising revenue for the station.
According to New York Post coverage of the trial, former anchor Kaity Tong testified in support of Scott’s claims. Tong believed that she, herself, was given a negative evaluation and forced to take a pay cut when she was in her early-60's. However, during their second day of deliberations, the jury found for the station, finding that the Scott did not meet her burdens in establishing that age unlawfully played a role in her termination.
The Scott case is only one of several claims brought for age discrimination by former WPIX-Channel 11 employees. Both Sal Marchiano and Larry Hoff have also have pending age discrimination claims.
This case, although the Plaintiff did not prevail, serves to highlight just how rampant age discrimination is in the workplace. As the working population ages, leadership in organizations desires to replace older workers with younger ones. These decisions are not based on merit, rather, they are based on an unlawful ageist bias against older workers and in favor of younger.
A lawsuit was recently filed in Federal Court by employees of a Bronx car wash seeking unpaid wages and overtime. This suit is apparently part of a campaign by an organization called WASH New York which seeks to use the power of the judicial system to take action to protect the rights of employees in the workplace.
The claims raised in the suit relate to being paid less than the minimum wage of $7.25 per hour and not being paid proper over time for working more than forty hours per week. The employees are also working in conjunction with various employee rights organizations to possibly unionize and have better and safer working conditions, such as safety goggles and gloves when working with certain chemicals.
Several governmental entities have attempted to intervene in these cases. For example, New York City Public Advocate Bill DeBlasio has stated that New York City should cancel its contracts with this car wash because of these allegations of its failure to comply with the applicable wage and hour laws. Additionally, the New York City Council has legislation presently pending which would further regulate the car wash industry.
Employers in many different industries frequently prey on employees who may not be legal immigrants and have poor language skills. Often times, employees are singled out and targeted based on their national origin - which is discriminatory. In these cases, employees might not report any potential violations of the relevant laws for fear of retaliation and possibly losing their job. Additionally, employees who many not be legal immigrants are frequently in fear of deportation or other immigration-related problems. It is highly possible that employers may threaten their employees with termination or reporting them to the INS if they object to the inappropriate treatment in the workplace.
An article regarding this issue was recently in The New York Daily News.
Schwartz & Perry represents plaintiffs in cases of employment discrimination and retaliation under the federal, state, and city laws. Additional information regarding the relevant human rights laws is available on Schwartz & Perry’s website, which is at www.schwartzandperry.com.
After passing the New York State Assembly, the Senate is now considering the Gender Employment Non-Discrimination Act, a transgender anti-discrimination bill. The law, which comes one year after New York State legalized Gay Marriage would provide protection to those who do not conform to what’s accepted as traditional male and female roles in dress and behavior. The proposed bull would add gender identity and expression to the New York State Human Rights Law which currently bans discrimination based on race, gender, age, religion, disability, and sexual orientation.
New York City has already amended its Human Rights Law in 2002 to include protection for transgender individuals and many states and cities around the country have followed suit.
Even the private sector has joined the fight against this type of discrimination with 60 of the Fortune 100 companies including gender expression and identity as part of their anti-discrimination policies.
In a recent landmark decision the EEOC has ruled that employers who discriminate against employees or potential employees on the basis of their gender identity or gender expression are in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex. Even though Title VII does not specifically state that it prohibits discrimination against transgender individuals, the EEOC, through its ruling, has determined this protection does in fact exist as an extension of the “sex” provision.
The laws have been passed in New York City and around the country in response to stories of transgender individuals being fired from their jobs when their employer learns that they intend to undergo or have undergone sex reassignment surgery. This is exactly the type of behavior that the New York State Law is designed to stop. Without this protection, employees can be fired because of their gender identity with no legal recourse.
The Sexual Orientation Non-Discrimination act, which protects individuals who are discriminated against because they are homosexual, heterosexual or bisexual, was narrowly written so that it can not be interpreted to include gender expression or gender identity. That is why this law must be passed.
The bill, which has been proposed several times before has always been stalled by the State Senate committee to which it is assigned. Governor Cuomo has publicly stated that he would sign the bill if it passes and that he intends to put pressure on the Senate to try and get this bill passed so that New York State can join the other leading states in the country in offering the full range of protection from discrimination in the workplace.
An article concerning this issue is available at The New York Daily News website.
As the New York Times reports, while he was in the position of Security Director for the National Basketball Association (“NBA”), Warren Glover tried to do what was right. Glover repeatedly contacted his superiors to inform them that women in his office were being either sexually harassed or discriminated against. Allegedly, instead of the NBA taking Glover’s concerns seriously, they ignored him and eventually fired him in retaliation for his complaints.
Glover, who continually received exemplary reviews from his superiors including being considered “one of the best security professionals.... [they had] ever worked with,” is now suing the NBA following his dismissal last month for lost wages and damages. Glover alleges that his dismissal was not related to the quality of his work, rather, he was fired because of his willingness to speak out against the harassment taking place in his office. Glover further alleges that senior NBA security officials denied him promotions, demeaned him, and treated him differently from other employees because of this willingness to speak out.
The animosity towards Glover may have began in 2010 when his sworn testimony was a major force behind the dismissal of a senior NBA official in connection to a sexual harassment claim. Other top NBA security officials may have feared a similar fate because of Glover’s willingness to speak out, leading to them to act preemptively and fire Glover.
This case is indicative of an unfortunate truth in workplace discrimination, that fear of retaliation prevents workplace discrimination suits from being brought. Retaliation, however, is forbidden under the human rights laws. Schwartz and Perry is a New York employment law firm that focuses on representing victims of workplace discrimination.
The full article can be found at the New York Times website.
