New York Employment Lawyer Blog

Muslim transit employees being forced to wear an MTA logo on their turbans are arguing that they are being discriminated against by the MTA because of their religion. The employees have complained that the MTA’s forcing this imposition upon Muslims and Sikhs is disrespectful of their religious practices. Recently, the employees took action to try to get rid of the logo once and for all. On June 16, twenty-seven New York City Council members signed a letter sent to New York City Transit President Howard Roberts, calling for him to eliminate the requirement.
The logo requirement started as a compromise to allow Muslims to wear their religious turbans or scarves, but the workers see it as the MTA’s way of presenting an ultimatum that forces the employees to wear a corporate logo in their sacred space if they want to continue working.

Along with this letter from the City Council members, the MTA is also in the midst of a 2004 federal discrimination lawsuit with the U.S. Justice Department regarding employees and their religious headwear. It is still unclear whether the current situation will lead to court action against the MTA as well.
City Councilman John Liu referred to the rule as, “as backwards as you can possible imagine,” while City Councilman David Werpin said, “No one should ever, ever, under any circumstances, have to choose between their livelihood and their religion.”

A fired manager at Justin Timberlake's New York barbeque establishment, Southern Hospitality, has filed a lurid sexual discrimination suit. This is the second time in six months that Mr. Timberlake’s Upper East Side barbecue joint has been sued by a former employee. Previously, in a federal case filed in November, a busboy claimed Southern Hospitality employees weren't getting their fair share of tips and overtime. In this latest legal battle, aspiring actress Alison McDaniel, claims Timberlake business partners Eytan Sugarman and Ronnie Kaplan are guilty of "vile and discriminatory conduct." McDaniel, who worked at the Second Ave restaurant for a year, was fired after she wrote a memo complaining of the harassment. McDaniel, 29, said her job as manager of Southern Hospitality, became an X-rated nightmare in which she was spit on, pelted with expletives and subjected to porn. In at least one instance, McDaniels asserts, that she was locked in a room and forced to watch pornography with Sugarman, whom made fun of her when she began crying. McDaniel’s has filed suit in Manhattan Supreme Court naming Timberlake and best friend Tracy Ayala as defendants. According to court papers, McDaniel also alleges other female workers endured racist comments, such as a hostess who was fired, whom was nicknamed "that ghetto girl at the door". No claim has been filed with the EEOC.

In 1998, the United States Supreme Court held in the cases of Burlington Indus., Inc. v. Ellerth and Faragher v. City of Boca Raton that an employer is not liable for workplace harassment claims arising under federal law if it can show “that the employer (1) had exercised reasonable care to avoid harassment and to eliminate it when it might occur; and (2) that the complaining employee had failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise to prevent harm that could have been avoided.” This defense is critical to employers in defending workplace harassment claims.

Recently, in Barnum v. New York City Transit Authority, the Appellate Division, Second Judicial Department, held that the Faragher-Ellerth defense can be used by employers to defend claims under the New York State Human Rights Law, and under the New York City Human Rights Law for claims that arose prior to the enactment of the Local Civil Restoration Act of 2005, an amendment to the NYCHRL which requires courts to interpret the NYCHRL more favorable to employees than would be justified by case law interpreting federal and state civil rights laws. Moreover, other recent court decisions have held that the Fragher-Ellerth defense is unavailable under the NYCHRL for harassment claims arising after October 2005, when the Restoration Act was passed.

The applicability of the Faragher-Ellerth defense to employment harassment claims continues to be a developing legal issue. In Zakrzweska v. The New School, the federal district court explained that “[t]he apparent tendency to press claims under the state and city antidiscrimination laws, either in lieu of or in addition to claims under federal statutes, creates a genuine need for resolution of the vicarious liability standards applicable to employers under those statutes.” Additionally, the district court asked the United States Court of Appeals for the Second Circuit to state conclusively whether the defense is available under the NYCHRL.

Recently in New York State, a woman sued a school district saying she was fired from her position as the school principal because the parents wanted a black principal running their child’s school. The woman, Barbara Pleener charged race discrimination in that parents had insisted the board of education find a black person to run the school their children attended.

In this case, Pleener v. New York City Board of Education, the court said that it is not okay for an employer to discriminate against a person on the basis of race even if they claim it is for a client's happiness. Pleener cited race as a reason for her termination as she was replaced by a black principal. However, Pleener lost her case because the district proved her firing was based on the fact that parents had become outraged when she fired someone with a record of insubordination less severe than her own record.

Can an employer in New York prevent an employee from working for a competitor if no non-competition agreement was ever signed? Relying on federal and state court decisions in New York labor/employment law Judge Lewis Kaplan concluded that the answer is no.
Recently, American Airlines sued a former employee who possessed sensitive company information and went to work for Delta. Delta investigated the matter and found that the employee never disclosed any of the information to Delta and the former employee offered to destroy or return all materials.

In American Airlines, Inc. v. Charles F. Imhof and Delta Airlines Inc. Judge Lewis Kaplan concluded that there was no material risk of irreparable harm to American Airlines on the taking of the information. Judge Kaplan went on to hold that the inevitable disclosure theory, which bars an employee from working for a competitor because he would be unable to avoid using confidential information gained from working for the former employer to benefit the new employer, only applies when the employee has knowledge of actual confidential information and there is deliberate misappropriation of the information.

The University of Phoenix (“UOP”) settled a discrimination claim for $32,500, filed by the EEOC and a former employee of the University, Latrish Elaine Tarhini.

The EEOC and Tarhini filed a discrimination claim against UOP, claiming that UOP had violated the retaliation statute of the Civil Rights Act of 1964. Tarhini an enrollment counselor claimed that UOP management said she would not be in line for a promotion because she had made an earlier pregnancy discrimination claim against UOP and its parent company, Apollo Group Inc.

In the settlement, UOP admitted to no wrongdoing or liability according to a statement provided to the Phoenix Business Journal. However, the EEOC said UOP will be required to provide updates on other possible retaliation claims by its workers.

A federal judge in Newark, N.J., has construed the Lilly Ledbetter Fair Pay Act as
extending workers' time to sue only for claims based on pay bias. Michael Richards, a
48-year-old man of Asian descent alleged that he received unjustified low ratings in his job on
account of his race and age and in retaliation for his complaints about unfair treatment.

U.S. District Judge Katharine Sweeney Hayden wrote in Richards v. Johnson & Johnson,
"While the Act certainly contains expansive language ... it ... does not save otherwise untimely claims outside the discriminatory compensation context." However, while the act "does not save untimely discrimination claims outside the compensation context, the statute explicitly affirms the evidentiary principle ... that Title VII and the ADEA do not bar an employee from using time-barred acts as background evidence in support of other timely claims," she wrote.

Under the ruling, the plaintiff is still allowed to pursue his race and age discrimination
claims under Title VII, the Age Discrimination in Employment Act and the New Jersey Law
Against Discrimination.

Domestic workers, including nannies, working in New York households, are fighting for a Bill of Rights in order to protect themselves from employment discrimination, among other things. Although the bill pertains to New York, if passed, it will be the first such bill in the United States to challenge the exclusion of domestic workers from the protection of national labor law and will set a crucial precedent for other states to follow suit.

Supporters of the bill claim that the domestic workers deserve special protection because they are the most invisible and vulnerable workers in the state. Currently, domestic workers are not covered by employment discrimination laws, occupational safety laws or the Family and Medical Leave Act (FMLA).

The RAISE Act, a new law proposed by Senators David Vitter, R.-La and Tom McClintock, R-Ca, changes the cap imposed upon Union employers. Currently, employers can pay their employees no more than the Union’s established ceiling, and no less than the set floor. The RAISE act would allow employers to reward exceptional employees by bumping up their hourly pay for deserving work.

An important provision, however, limits the threat of discriminatory pay. The Act contains a stipulation that prohibits employers from raising non-union employees’ compensation in hopes of undermining the union. The Act can bring significant change by encouraging employees to work harder towards the potential rewards. Under the RAISE Act, the typical union member could earn between $2,600 and $4,300 more per year.

Jane Collins, an employee of the luxury teddy bear company Steiff, has made allegations against Martin Frechen, the company’s CEO, claiming that he sexually harassed her for years, and raped her. Collins alleges that the sexual harassment began in September 2004. Frechen’s conduct included trying to get her to perform sexual acts, rearranging her schedule so that she was forced to work with him, repeatedly grabbing her and trying to force himself upon her and trapping her in a car and raping her. Collins says she didn’t report the rape because she is a single mother and was “terrified” of losing her job.

Collins is also bringing charges against Steiff’s North American CEO James Pitoco, claiming he ignored her complaints about Frechen. Chief Financial Officer Deiter Statzinger says the company “resolutely den[ies] the allegations in the complaint and will vigorously defend the claims in court.” Collins is bringing charges for $80 million in damages.

Melody Morales, a woman suing the Hawaiian Tropic Zone in New York for alleged racial discrimination, was accused of being a prostitute by defense counsel. After pictures surfaced on the internet of Ms. Morales on various websites, defense attorneys brought the matter to the attention of the presiding judge in an attempt to have the case dismissed.

Ms. Morales’ attorneys maintain that their client has never been involved in prostitution, and that the photos in question must have been lifted from her Myspace page and posted on other websites without her knowledge or consent.

Ms. Morales is suing the Hawaiin Tropic Zone for racial discrimination, alleging that they did not hire her for a position with the company due to her Latin accent.

In 2009, the New York Yankees opened a majestic new state-of-the-art stadium, replacing the legendary cathedral that had housed the team for over eighty years. The theme of replacing the old has not stopped there, according to a former long-time employee. JohnVendikos, who worked as a bartender at the old Yankee Stadium’s Stadium Club for twenty-seven years, filed a complaint with the Equal Employment Opportunity Commission on May 26, alleging age discrimination by the Yankees.

Despite his long-time employment, the team informed the 73-year old Vendikos that he would be required to re-apply for his job when the new stadium opened across the street. He dutifully complied with the demand, since he wanted to continue to work for the Yankees.
Vendikos said that after waiting in line for three hours to be interviewed with Legends Hospitality, the new merchandising/concessions company co-founded by the Yankees, the interviewer asked him, “Why should I hire you? You’re an old man!” Vendikos thought the interviewer was joking, but when he found him to be serious, Vendikos was shocked and insulted. Then the veteran drink-server, who had been a bartending staple at the stadium since the early 1980s, never even received a phone call from the Yankees.

A Yankees spokesperson told the New York Post that the team has hired many people over the age of 65 at the new stadium and that the organization did not discriminate against Vendikos.

Vendikos’s attorney Lenard Leeds sees it differently, stating, “We can’t believe that after 27 years, that John was told you’re just too old. We wonder what George Steinbrenner would say. He used to serve George Steinbrenner.” Leeds says that this is a textbook case of age discrimination.