New York Employment Lawyer Blog

There is no denying that Gender Discrimination exists in many industries but nowhere more prevalent than on Wall Street. The past ten years have seen more gender discrimination lawsuits brought by women against financial institutions than any other type of discrimination lawsuits and yet the problem persists.

The high power and high paying jobs are still filled predominately by men. Often times women find it challenging to break into that next level because of the glass ceiling that exists and inaccurate stereotypes about women that have been perpetuated for many many years.

The EEOC has reported that the percentage of women in senior positions is the lowest in the securities industry. The EEOC further indicated that it is more difficult for women to gain entry into management positions than their male counterparts.

Despite the lawsuits and the statistics reported by the EEOC, the demographics of Wall Street Firms have not changed much with respect to women. Women continue to be relegated to the lower level, more administrative oriented jobs and are denied the opportunities that men are afforded simply because of their gender. WHEN WILL THIS CHANGE?

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Posted In: Employment Discrimination , Gender discrimination

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A recent bill has passed both the United States House of Representatives and the United States Senate and is awaiting the signature of the President. This bill represents the intersection of anti-discrimination and human rights laws with that of privacy rights.

The issue was discussed in the May 2, 2008 edition of The New York Times. The bill is called the Genetic Information Nondiscrimination Act and it will prohibit both employers and health insurers from discriminating based on the genetic information of individuals. This bill has received broad bi-partisan support and has the possible effect of increased public participation in genetic testing and related fields.

This issue receiving national attention also promotes an increased awareness to the public of possible discrimination by employers, especially, even beyond the scope of genetic information, but because of such protected reasons as race, gender, and national origin.

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Posted In: Employment Discrimination , Employment Law

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The United States Supreme court will address the significant question of whether an employer in an age discrimination suit has the burden of proving that reasonable factors exist that might explain the disparate impact that a business decision has on a group of older employees or if the burden rests with the employees.

In a case brought by two dozen workers at Knolls Atomic Power Laboratory in upstate New York, 31 employees were terminated using a set of guidelines to evaluate the workers’ skills as well as their amenability to retraining. 30 of 31 employees were over the age of 40 at which the protections of the ADEA apply. The employees won after a jury trial but the judgment was overturned by the United States Court of Appeals for the Second Circuit.

The Age Discrimination in Employment Act (ADEA) is the law under which the suit was initially brought and it references the reasonable factor test but does not indicate where the burden rests.

It would make sense that if the employer wanted to use the reasonable factor concept as a shield, the burden should rightfully rest with them. The determination in this case of where that burden ultimately rests and the impact that will determination will have on the field of employment law will be discussed once the Court reaches it decision.

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Posted In: Age Discrimination , Evidence

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The New York Times reported on April 24, 2008 that the US Senate fell four votes short needed to begin consideration of the Lilly Ledbetter Fair Pay Act, named for an Alabama woman, who lost her case against the Goodyear Tire and Rubber Company, because she had not filed her complaint within six months of the initial instance of discrimination.

Ms. Ledbetter had often been paid 40% less than her male counterparts and continues to suffer from that pay disparity in her retirement because that disparity has affected her pension and social security payments. Perhaps this issue may be reconsidered in the next Congress.

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Posted In: Employment Discrimination , Employment Law , Gender discrimination

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A recent article in the National Law Journal of April 28, 2008, was entitled, "Hot Year Predicted for ADA Litigation." This reflects the fact that the Americans with Disabilities Act (ADA) is currently at a point in which many issues related to it are before the courts. Among the significant issues that relate to the ADA are web-site accessability and handicapped vehicle accessibility.

We encourage our readers to view the relevant portion of our website at www.schwartzandperry.com which has a lengthy discussion of disability and perceived disability issues.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law

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Recently, in Zakrzewska v. The New School, 06 Civ. 5463, decided 3/17/08, held that, “Traditionally, New York courts have applied the federal courts’ construction of federal employment discrimination laws in construing the provision of the NYCHRL. Indeed, Section 1 of New York City’s Local Civil Rights Restoration Act of 2005 makes clear that the construction of federal and state civil rights legislation with language comparable to that of the NYCHRL acts ‘as a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.’”

We most respectfully suggest that all our colleagues remain mindful of the New York City Local Civil Rights Restoration Act of 2005 so that they may appropriately and effectively point out that our courts have given effect to the language and intent of the Restoration Act.

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In a recent decision, in the case of Weiss v. Morgan Stanley, 05-cv-3310, the Court clearly pointed out that, “A plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as she can establish that she possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.”

It is, therefore, essential that we keep in mind the fact that, although, the plaintiff may prevail in the underlying discrimination claim, there is a reasonable basis to pursue a retaliation claim so long as the sentiments expressed in the Weiss case quoted above, exist.

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Posted In: Employment Discrimination , Gender discrimination , Sexual Harassment

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Recently, it has been sad to witness the frequency in Reductions in Force (RIF) which seem to be increasing in intensity. We do wish, however, to point out that there have been occasions, where the “reduction” although identified as such, was, in some part, motivated by age discrimination.

It becomes necessary, therefore, that when a potential client discusses termination as part of a reduction in force, we inquire further to determine whether he or she was identified in the reduction in a fair and appropriate fashion. We have, on occasion, identified instances, in which, during an appropriate and acceptable “reduction” we have found that discrimination existed. When such is found to be the case, the courts have responded by labeling the discriminatory conduct as such, despite the label that was affixed to it by the employer. We believe, therefore, that we must be vigilant in order to identify unlawful conduct, as such, despite the label that may be affixed to it. We would invite our colleagues to review Ferguson v. Lander, 3:06-CV-0328, with respect to this subject.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Gender discrimination

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The 6th U.S. Circuit Court of Appeals recently held in Thompson v. North American Stainless, No. 07-5040 (6th Cir.), that third party retaliation is actionable.

In Thompson, a male engineer filed a retaliation suit against his employer. He claimed that his employer fired him in retaliation of a gender discrimination suit brought by his fiance, who was also an engineer at the same factory.

As a result of this expansion of retaliation, plaintiffs who bring employment discrimination claims against their employer will no longer have to fear retaliation against their friends or relatives who happen to work at the same workplace.

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Recently, a Federal Magistrate Judge concluded that a factory controller was in part terminated because of age discrimination. Although the company argued that the termination was the result of a “Reduction in Force” (RIF), the fact was that his termination was based, at least in part on his age. It would be worthy, therefore, to read the decision of Magistrate Judge Peebles in Ferguson v. Lander.

Although we are aware that the law clearly permits an employer to engage in a RIF. The employer is not protected if it can be determined that the termination was the result of “intentional discrimination under ADEA.”

The case is particularly enlightening because the findings of fact by the Magistrate Judge reflects the mechanism that sometimes occurs in these cases. We are citing the case therefore, not only for its legal interest but also for the fact pattern which is clearly worthy of the attention of all of us.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Evidence

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We believe, it is worthy to note that in the case of Motorola Credit Corp v. Uzan, the Second Circuit Court of Appeals held that the state law was not violated when a Billion Dollar punitive damage award was granted by a federal trial court in a case in which Defendants refused to provide economic information.

The decision in the Motorola matter resulted when the Second Circuit, applying Illinois law, three factors must be considered in the granting of punitive damages. (1) The nature and enormity of the wrong, (2) The financial status of Defendant, and (3) The potential liability of Defendant.

We recognize that in order to respond to the second element, namely the financial status of the Defendant, the Defendant is obligated to provide financial information. When a defendant, through what might be considered reprehensible conduct, fails to provide that information, the Court concluded that punitive damages were appropriate.

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Although we are all mindful of the fact that New York Courts have consistently applied Federal Employment Discrimination standards in construing the New York City Human Rights Law (NYCHRL), we must remain mindful of Section 1 of NYC’s Local Civil Rights Restoration Act of 2005 which provides that the Restoration Act holds that the Federal Law is to have the effect of “serving as the floor below which the City’s human rights law cannot fall.”

In effect, it has been held to be “a floor below which the city human rights law cannot fall, rather than a ceiling above which the local law cannot rise.” Therefore, when we are citing legal authority with respect to the NYCHRL and are faced with citations from federal and state cases, we would be well advised to consider the different interpretation which the Restoration Act provides be given to the New York City law.

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Posted In: Employment Discrimination

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