New York Employment Lawyer Blog

A state Judge in Brooklyn has re-confirmed the broad goals of the New York City Human Rights Law. In Bumpus v. New York City Transit Authority, 18 Misc.3d 1131(A) (N.Y. Feb. 13, 2008), the plaintiff was a transgender woman, who had been born anatomically male, but lived her life with a female identity and lived each day as a woman. She complained that she had been discriminated against by a Transit Authority employee, who had harassed her and made “transgender-phobic epithets” to her for a period of approximately 10 minutes.

The court denied the Transit Authority’s motion to dismiss the case, reaffirming that “[t]he Human Rights Law affords protection to transgender people in New York City.” The Court noted that “[t]he New York City Human Rights Law was intended to be more protective than the state and federal counterpart,” and that “[t]he legislative history contemplates that the Law be independently construed with the aim of making it the most progressive in the nation.”

In its decision regarding the New York City Human Rights Law, the court relied on the case of Selmanovic v. NYSE Group, a case in which, we are proud to say, our office participated. We remain committed to fighting to ensure that the New York City Human Rights Law remains one of the most stringent and protective human rights laws in the country.

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Posted In: Employment Discrimination , Gender discrimination , Sexual Harassment , Sexual Orientation Discrimination

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In the case of Hubbard v. Port Authority of New York and New Jersey, 2008 WL 464694 (S.D.N.Y. Feb. 20, 2008), currently pending in the Southern District of New York, the plaintiffs alleged, among other things, that they were subjected to a hostile environment because they were African-American. The plaintiffs recounted a two-year period where they were given demeaning tasks, while their white co-workers were not, and where their co-workers posted pictures of a blurry black woman and a picture of two monkeys, referring to the plaintiffs.

The defendant moved to dismiss the plaintiff’s hostile environment claim, in a motion for summary judgment, claiming that not all of the acts could be considered “discrimination,” since they did not reference the plaintiffs’ race. The court denied the defendant’s motion holding that “[w]hile not every allegation bespeaks of overt racial animus,” sufficient evidence existed for a jury to find that the acts were motivated by race.

The court’s decision in Hubbard reaffirms that merely because particular conduct may not directly reference race, it still may be motivated by race, and serve as the basis for a claim. Instead, courts will look to “the totality of the circumstances” to determine if conduct is based on race, even where conduct itself does not implicate race.

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Posted In: Employment Discrimination , Racial Discrimination

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An employee may assert a claim for “retaliation” when he or she is punished for asserting or assisting with a claim of discrimination or sexual harassment. One of the elements that must be established in order for such a claim to succeed is that the plaintiff suffer some kind of “adverse employment action” as a result of the complaint. Examples of such adverse employment actions include, but are not limited, to termination, demotion, cut in pay, or transfer to less desirable location.

In Fei v. Westl AG, the plaintiff brought suit against his employer, claiming that the company breached his rights under the Fair Labor Standards Act (“FLSA”). The company then filed a counterclaim against the plaintiff, claiming that he misappropriated the company’s confidential information.

Judge Baer, of the Southern District of New York, found that the company’s counterclaims against the plaintiff was adverse employment action to support a claim of retaliation. The court found that since the plaintiff alleged that “he has suffered harm to his reputation, intimidation, legal costs and delay as a result of the counter claims,” the counterclaims impacted his ability to secure prospective employment.

The court also relied upon the interesting timing of the counterclaims, noting that if the company was going to file a claim against the employee, why would it wait until shortly after the plaintiff filed his claim. In short, if a company responds to an employee’s claim under the human rights law with a counterclaim, a company may be exposed to a claim for retaliation.

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Posted In: Employment Discrimination , Retaliation

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On March 6, 2008, an article appeared in the New York Times, reflecting the increase in complaints of discrimination in the workplace. The article went on to state that, “federal job discrimination complaints by workers against private employers rose by 9% last year, the biggest annual increase since the early 1990s.” According to the statistics, this was the most filed since 2002.

Based on the article, one might reasonably conclude that job discrimination has intensified. Another reasonable conclusion might also be that more individuals who suffer discrimination in the workplace have been able to observe, from their experiences, that those who complain of discrimination do not suffer the results of reporting discrimination to the same extent they did previously. They have had an opportunity to witness friends and colleagues in the workplace who have reported discrimination but somehow did not suffer the results of discrimination for reporting what they recognized was a violation of their human rights.

There is a reasonable likelihood to believe that it is not necessarily the increase in discriminatory conduct that caused the number of individuals who report discrimination to be greater than before. Instead it will be that they have learned that reporting discrimination does not necessarily produce retaliation. The strong retaliation laws that our lawmakers have enacted throughout our country have, in large part, effectively protected those who report discrimination from the retaliatory conduct they feared in the past. This is certainly a hopeful result.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Gender discrimination , Racial Discrimination , Retaliation , Sexual Harassment , Sexual Orientation Discrimination

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On Thursday, March 6, 2008, the attorneys of Schwartz & Perry were honored to serve, once again, as judges in the New York Law School Moot Court Association’s Wagner Moot Court Competition. The competition featured law students from all over the country arguing an issue dealing with employment law.

The issue, this year, involved two issues in employment law: (1) whether the federal law of Title VII protects persons who identify themselves as “transgender” and (2) whether a company should be liable for employment decisions that are made by persons without a discriminatory bias, but who are influenced by persons who hold, but do not reveal, a discriminatory bias, also known as the “cat’s paw” theory of liability. Both of these issues are hotly contested in the federal courts throughout the country, and resulted in a fascinating oral argument.

Needless to say, given our own experience in this field, the attorneys of Schwartz & Perry present a formidable panel for these law students. We were happily impressed with the performance of all the students who participated, as they were concise, thorough and extremely well prepared for the competition. As Mr. Schwartz noted to the students, “It is always a pleasure to see how much we practicing attorneys can learn from law students.”

We look forward to seeing these young students grow as the field of employment law continues to evolve.

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Posted In: Employment Discrimination , Gender discrimination , Sexual Orientation Discrimination

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A New York City Police Officer, who is Muslim, has prevailed in a Motion for Summary Judgment in his race discrimination suit under Title VII of the Civil Rights Act and 42 U.S.C. §1981. The officer claims that a counter-terrorism advisor to the New York Police Department, created a hostile work environment by subjecting him to discriminatory remarks and constantly forwarding emails degrading Muslims to the plaintiff and other NYPD personnel.

The U.S. District Court for the Southern District of New York dismissed the defendant's argument that his comments and emails were “free speech” that should be protected by the First Amendment because “acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.”

The Court’s ruling elucidates that race discrimination in the workplace is not constitutionally protected free speech. The case is John Doe Anti-Terrorism Officer v. The City of New York, 06-CV-13738.

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Posted In: Employment Discrimination , Racial Discrimination

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The City of New York has agreed to settle a class-action race discrimination lawsuit against its Parks Department. The case involved a claim that the Parks Department had a pattern and practice of paying minorities significantly less than their white counterparts, and creating an environment which was rife with racially charged derogatory remarks. The plaintiffs’ also alleged that complaints would go unanswered and retaliation for making a complaint was the norm.

In this case, according to the 2/27/08 New York Times article by Diane Cardwell, the data showed that over 90% of those Parks Department employees who were earning less that $20,000 per year were either African-American or Hispanic, whereas only 14.2% of those earning between $50,000 and $60,000 were either African-American or Hispanic. This disparity is significant in that it demonstrates a pattern and practice of discriminatory conduct over a period of time.

It is important to note that discrimination need not be proven with a smoking gun, but one form of evidence that a plaintiff may use in a discrimination case is that of statistical evidence, which is apparent in the Parks Department case.

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Posted In: Employment Discrimination , Evidence , Racial Discrimination

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In order to start a lawsuit under many federal laws, including Title VII, a plaintiff must first secure the “right to sue” from the Equal Employment Opportunity Commission (“EEOC”). In order to obtain the “right to sue” from the EEOC, a plaintiff must first file a charge with the EEOC in timely fashion.

Against that backdrop, the Supreme Court just clarified what constitutes a “charge” with the EEOC, in its recent decision in Federal Express Corp. v. Holowekci. In Holowecki, the plaintiffs sought to start a claim by filling out an “Intake Questionnaire” with the EEOC, under the ADEA, and subsequently filed a lawsuit. The defendant sought to dismiss the plaintiffs’ lawsuit, claiming that the plaintiff had not filed a “charge” with the EEOC.

The Supreme Court, adopting the analysis of the EEOC, held that a person files a “charge” with the EEOC when the filing, taken as a whole, is a “request” for the agency to take action on the individual’s behalf. Rather than considering the form that is filled out, as the defendant argued, the proper inquiry should be whether the request is for the EEOC to do something, such as investigate, as opposed to a simple request for information from the agency.

The Court, in Holowecki, rejected the defendant’s argument that the plaintiffs’ submission was insufficient because they did not file a charge form and because the EEOC did not process the Intake Questionnaire as a charge. The Court, however, held that the plaintiffs’ submission constituted a charge because it was accompanied by a six-page affidavit asking the EEOC to “Please force Federal Express to end their age discrimination plan so we can finish our careers absent the unfairness and hostile environment . . .” This simple plea for help was enough to transform the submission from a simple request for information into a charge that served as the basis for a lawsuit. The Supreme Court looked at substance rather than form alone.

The Court specifically noted that the EEOC advocated this exact position, and that it reached this holding based on the EEOC’s interpretation of its rules. Combined with its decision the day before in Mendelsohn, where the Court reversed the appellate court for not deferring to the lower court, the Supreme Court appears to be sending a message that it will be placing many determinations in the hands of the lower courts and the EEOC, instead of in the appellate courts.

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Posted In: Age Discrimination , Employment Discrimination

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In a recent decision, the United States Supreme Court has allowed employees the right to sue over losses to their 401(k) plans in certain circumstances. This is a significant issue in the field of employment law as more employees will retire in the coming years in numbers far greater than ever before and, thus, have a strong interest in their pension and retirement plans.

The Court held that recovery is authorized where the fiduciary breaches are such that, “they impair the value of plan assets in a participant’s individual account.” The case before the Court arose over an employee who sued because his employer failed to make the changes he requested over a plan of two years. This mismanagement led to a loss of $150,000. The case is LaRue v. DeWolff, Boberg, & Associates.

The issues with respect to one’s retirement are quite complex and it entails both financial and legal aspects. Obtaining advice from professionals in those areas is essential in ensuring a sound investment for the future, relating to both financial and legal consequences.

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Posted In: Employment Law

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Last week, the United States Supreme Court decided to revisit the issue of a whether a union, through a collective bargaining agreement (“CBA”), can waive an individual member’s right to present a discrimination claim to a jury, and to proceed to union-run arbitration, instead. The Court granted leave to hear this argument in 14 Penn Plaza LLV v. Pyett, a case arising out of the Second Circuit, the federal appeals court in New York.

The history of this issue began in 1974, in a case before the Supreme Court called Alexander v. Gardner-Denver, where the Court held that a union could NOT waive a union member’s right to a jury in a CBA. In 1991, the Court, in Gilmer v. Interstate/Johnson Lane Corp., held that an individual, as opposed to a union, could waive the right to a jury in a discrimination case. In 1998, in Wright v. Universal Maritime Services Corp., the Court was once again presented with a CBA-wavier of the right to a jury, but declined to revisit the issue of enforceability.

Following Wright, the lower circuit courts have almost unanimously recognized that, pursuant to the Supreme Court’s decisions, an individual may waive the right to a jury, but a union may not do so on that individual’s behalf. In fact, the Second Circuit, in Pyett, was confirming that exact point of law. Many states, however, including New York, have arrived at conflicting results.

In fact, Schwartz & Perry is involved in an appeal before the highest court in New York State, the Court of Appeals, addressing the exact issue before the Court in Pyett, in a case titled Sum v. Tishman Speyer.

Through the upcoming decisions of the Courts in Sum and Pyett, we shall arrive at a definitive decision on the issue of a union-negotiated wavier of the right to a jury in employment discrimination cases.

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Posted In: Employment Discrimination

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