New York Employment Lawyer Blog

The United States Supreme Court has agreed to hear two new employment discrimination cases this term. One involves age discrimination and the other retaliation against employees for complaining of discrimination. This adds to the several others that the Court had already agreed to hear. Employment law is very well-represented considering that the Court will only hear fewer than 70 cases this term. These issues were discussed in a January 19, 2008 article in the New York Times written by their Supreme Court correspondent, Linda Greenhouse.

The age discrimination case, Meacham v. Knolls Atomic Power Laboratory, the employer fired 31 people, and out of those 31, 30 were over 40 years of age, which places them in the protected class for age discrimination. The employer claimed this decision was made for a legitimate business reason. The Court will decide the question of when an employer claims that employment decisions were based on “reasonable business justification,” whether it is up to the employer to prove that this reason or reasons existed or if it is the burden of the employee to prove that such reason or reasons did not exist. This issue is one that could have a significant impact on discrimination law for many years to come.

The retaliation case, Crawford v. Metropolitan Government of Nashville, involves an employee, Vicky Crawford, who did not make any complaints to management herself, but rather when other employees complained, there was an investigation of the complaints, and at that point Crawford was questioned and discussed what she believed to be harassment. The end result was that the supervisor who was the subject of the complaints was not disciplined but Crawford and several other women who complied with the investigation were terminated. The Court is hearing this case to decide whether protection from retaliation is only available to the employee who initiates a complaint or files a charge with the appropriate government agency or if those who speak in internal investigations can also receive the same protection from retaliation.

It is readily apparent that employment law, specifically employment discrimination, is one of the most active and evolving areas of the law. It is important that employees are aware of the rights and protections they have under the law and if they feel one of these rights or protections is in jeopardy, that an attorney experienced in the field of employment discrimination is contacted immediately.

Should you require the need of an employment attorney, we would be pleased to hear from you. We want to assure our readers that we expect to share relevant employment law matters with our friends as it occurs.

Posted by Schwartz & Perry | Permalink | Email This Post

Posted In: Age Discrimination , Retaliation

Bookmark:

Our courts have consistently confirmed that they are well aware that acts of discrimination are usually not practiced openly. Instead, it is frequently performed clandestinely, behind closed doors, leaving no open evidence of the discriminatory behavior so that you are without direct proof, or witnesses. It stands to reason that management persons would hardly leave evidence, or pass around memos which even suggest, that they are engaged in discriminatory conduct against another employee because of age, gender, race, disability, or for any reason which could result in a claim of discrimination by an employee.

Courts have adjusted the extent and nature of the proof required in order to establish a viable claim of discrimination, talking into account the fact that there will be no smoking gun. Only as example, victims of discrimination do not require absolute, direct proof of the actual act. Discriminatory conduct may be established by circumstantial evidence. In fact, a woman who is being sexually harassed need not have direct proof that she was groped or touched. She can prove it by her testimony alone or by circumstantial testimony. This was reconfirmed by the court in Thoreson v. Penthouse, 149 Misc. 2d 150 (Sup. Ct. NY Co. 1990), 179 A.D. 2d 29 (1st Dept. 1992), 80 NY 2d 490 (1992), an often cited case in which our office represented the female who complained.

As an example of circumstantial evidence, you might consider, for example, that you are a juror and when you walked into the courthouse in the morning, the sun was shining and the streets were dry. When you left the courthouse at the end of the day, the streets were wet and people were carrying folded umbrellas and rain coats. The court might then tell you that you might then properly find that it was raining sometime during the day when you were in the courtroom, although you yourself did not actually see it rain.

Accordingly, you may find that discrimination occurred based on circumstantial evidence. You do not require direct proof, such as actual witnesses, or written material. Under proper circumstances you might be able to establish your case, based on circumstantial evidence alone. If, therefore, you believe you were discriminated against, but have concerns as to whether you have adequate proof to establish your claim, please feel free to contact our office, or any other employment attorney, for an opportunity to discuss your claim. It may well be that you do have a viable claim, based upon the extent of proof that the law requires. You will never know unless you ask. We can be reached by telephone at 212-889-6565, fax at 212-779-8208 or email at info@schwartzandperry.com,

We hope to share with all our readers, messages that might assist you in better understanding our Human Rights Laws and your rights to seek its protection, as your needs may require.

Posted by Schwartz & Perry | Permalink | Email This Post

Posted In: Employment Discrimination , Evidence

Bookmark:

Age discrimination is a creeping disease. It has reached epidemic proportions. Employers, with increasing intensity, are attempting to remove older employees from their work force. The excuses they offer for the termination of these older employees, who do not deserve the humiliation that must come from a termination after many years of acceptable performance are, in many instances, cruel. As in the case of an employee, in his early 50's, who worked for a company for 30 years, and was told he was being fired because the company did not believe, he was a “good fit.” Humiliation, as we unfortunately know, “murders the soul.” ( McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., N.Y.L.J. Sept. 11, 1997 at 25.)

The law does not require a smoking gun to confirm that age discrimination was practiced. The burden an employee has in order to establish age discrimination, as well as any form of discrimination, is not as stringent as the burden of proof required in other types of cases. Our courts have frequently held that discrimination, including, of course, age discrimination, can be established with circumstantial evidence. Circumstantial evidence is less than direct evidence, which includes witnesses or written proof. Circumstantial evidence involves making reasonable inferences based on the proof available.

As has been said in our previous blog entries, there will never be a memorandum written by top management saying, “let’s get rid of the older people.” However, there will likely be ample circumstantial evidence. One example would be if a company were to fire twelve people and replace them with twelve new people. Yet, the twelve people that were fired were all over forty and the twelve oldest in the office and all the new people that were hired were all younger. Moreover, this practice had been on-going for a number of years. It is then at that point one might make a reasonable inference, based on the circumstantial proof available that this particular company had a hostility toward older employees and may be engaging in the practice of age discrimination. In the field of employment law, circumstantial evidence can be very powerful in protecting the rights of employees in the workplace.

Posted by Schwartz & Perry | Permalink | Email This Post

Posted In: Age Discrimination , Employment Discrimination

Bookmark:

It was heartening to read in the January 3, 2008 edition of the Wall Street Journal, that Lockheed Martin Corp. settled a race discrimination claim for 2.5 million dollars. The article went on to state that this was the largest individual race discrimination payment obtained by the EEOC. The fact that this settlement was reported at the start of a new year, perhaps might provide us with a prediction of things still to come.

It is clear to all of us practicing in the field of employee rights, that the strength and persistence of the Equal Employment Opportunity Commission (EEOC) can be a strong factor in providing a message to employers. In fact, it is believed by some that the EEOC is particularly interested in moving forward with high visibility matters because it helps send a message to the workplace that the EEOC is there to provide some measure of control over what would otherwise be a workplace that has minimal policing. The more visible the company involved, the more visible is the message. In this case, the settlement was said to be one of the largest individual race discrimination settlements obtained by the EEOC.

The article reflected figures provided by EEOC officials, which stated that race discrimination complaints reached 7,000 in FY 2007, up from 3,268 in FY 1990. The EEOC was said to have launched a strong effort to broaden education and intensify enforcement against race discrimination in the workplace. The fact is, discrimination in the workplace, in all its many forms, should become the subject of greater effort and stronger surveillance not only by the EEOC, but from individuals who are afflicted with discriminatory workplaces and fail to act upon it. The rallying cry should not simply be emanating from our EEOC, but from all of those individuals who suffer from the curse of discrimination. Just as the EEOC is available, so are the courts who have been provided with laws by the federal government, by many state governments, and in some cases, even local laws such as the City law, which is available in New York.

If you believe you have been discriminated against because of your age, race, gender, disability, or any other form of discrimination, seek help from an attorney practicing in the field of employment law. We would be pleased to offer that assistance should you desire.

Posted by Schwartz & Perry | Permalink | Email This Post

Posted In: Employment Discrimination , Racial Discrimination

Bookmark: