New York Employment Lawyer Blog

According to a recent article in The New York Times, the U.S. 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.

In the age discrimination case, Meacham v. Knolls Atomic Power Laboratory, the employer fired 31 people, 30 of whom 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 employment discrimination law for many years to come.

The workplace 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 sexual 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.

Our courts have consistently confirmed that they are well aware that acts of employment 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 individuals 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, a disability, gender, race or for any reason which could result in a claim of employment discrimination by an employee.

Courts have adjusted the extent and nature of the proof required in order to establish a viable claim of employment discrimination, talking into account the fact that there will be no smoking gun. Only as example, victims of employment 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 Magazine and Robert Guccione, 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 Schwartz & Perry LLP represented the plaintiff.

Age discrimination is a creeping disease which has reached epidemic proportions. Employers, with increasing intensity, are attempting to remove older employees from their work force and the excuses they offer for the termination of these older employees are, in many instances, cruel.

The law does not require a "smoking gun" to confirm age discrimination in the workplace. The burden an employee has in order to establish age discrimination, as well as any other form of employment discrimination, is not as stringent as the burden of proof required in other types of cases. Our courts have frequently held that employment 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.

There will never be a memorandum written by 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 12 people over the age of 40 and replace them with 12 people younger than 40 years of age. It is 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.

According to a recent article in The Wall Street Journal, Lockheed Martin Corp. settled a race discrimination suit for $2.5 million. The article went on to state that this was the largest individual race discrimination payment obtained by the U.S. Equal Employment Opportunity Commission (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.

The strength and persistence of the 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 employers 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 the message.

The article reflected figures provided by EEOC officials, which stated that race discrimination complaints reached 7,000 in FY 2007. 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 forms, should become the subject of greater effort and stronger surveillance not only by the EEOC, but from individuals who are aware of discriminatory practices in the workplace. The rallying cry should not simply be emanating from the EEOC, but from all of those individuals who suffer from employment discrimination.