New York Employment Lawyer Blog

Recently, it has been sad to witness the frequency of reductions in force 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/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 employment discrimination existed. Reductions in force should not be used to mask instances of employment discrimination.

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 claiming that his employer fired him in retaliation for 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 company.

Recently, in Ferguson v. Lander, 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, the fact was that his termination was based, at least in part on his age.

Although we are aware that the law clearly permits an employer to engage in a reduction in force. The employer is not protected if it can be determined that the termination was the result of “intentional discrimination under the Age Discrimination in Employment Act.” This case is particularly enlightening because the findings of fact by the Magistrate Judge reflects the mechanism that sometimes occurs in these cases.

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 the defendant refused to provide economic information.

The decision in Motorola resulted when the Second Circuit applied three factors under Illinois law 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.

In order to respond to the second element, namely the financial status of the defendant, the defendant is obligated to provide financial information. When the defendant, through what might be considered reprehensible conduct, failed to provide such information, the court concluded that punitive damages in such an amount were appropriate.

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.”

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 NYCHRL.

Frequently, facts which lead to a claim of employment discrimination do more than simply that. They become the foundation for a claim of workplace retaliation. It is important that we remain mindful of the fact that even if a plaintiff does not sustain his/her claim of employment discrimination, whatever the basis may be, if the employee had a reasonable basis to believe that an employment discrimination claim existed and he/she engages in a protected activity by notifying the employer, and advises the employer that he/she will pursue a claim of employment discrimination and the employer then takes adverse employment action, the workplace retaliation claim may be valid although the employment discrimination claim may fail.

It is essential, therefore, that in considering workplace retaliation claims that we are mindful of the following sentiment that was expressed in recent decision in Weiss v. Morgan Stanley, (05-cv-3310 S.D.N.Y), namely 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.”

On April 1, 2008, the U.S. Court of Appeals for the Second Circuit ruled for the first time that an employer can be held liable for race discrimination based on an employee’s association with a person of another race. The court reversed the District Court’s decision to grant Defendant Iona College’s motion for summary judgment, rejecting the District Court’s restrictive view of Title VII race discrimination claims as applying only to an individual “because of such individual’s race.” Instead, the court found that where the plaintiff-employee, Craig Holcomb, a white man, was allegedly terminated and discriminated against because of his marriage to an African-American woman, “the employee suffers discrimination because of the employee’s own race.”

Holcomb, an assistant basketball coach at Iona College, alleged that he was terminated based on his supervisors’ discriminatory animus against his interracial marriage. The court found that the plaintiff had adduced enough evidence, through the comments and conduct of his supervisors, to show that his termination was based, at least in part, on improper racial motives. The court noted that even though Iona College had proffered valid reasons for Holcomb’s termination, namely the poor performance of Iona’s basketball team, the employee need only show that “the prohibited factor was at least one of the ‘motivating’ factors” in his termination.

This ruling may also open the door to other claims of employment discrimination based on association, such as religious discrimination based on an employees association with a person of a certain religion.

The National Law Journal recently reported that employment class action suits are on the rise. According to the article, because securities class actions have waned in recent years, plaintiffs’ lawyers have refocused on employment wage and hour claims, as well as employment discrimination claims.

The trend toward more “labor-intensive class actions” has prompted law firms across the country to expand their employment litigation practices. In fact, one firm has reported that its employment litigation team has expanded by 30% each year since 2005. This is a significant change in the landscape and may demonstrate increased awareness by employees of their rights in the workplace.

Last week, The Wall Street Journal reported a recent increase in pregnancy discrimination claims filed by employees with the U.S. Equal Employment Opportunity Commission (EEOC). The WSJ noted a 14% increase in pregnancy filings last year, with a total of 5,587. This figure was up 40% from a decade ago and was the biggest annual increase in 13 years.

These statistics confirm that despite the effort of many companies to create the appearance that they appreciate working mothers, a significant bias against pregnant women persists in the workplace. Employers, in an effort to avoid the perceived hassle of maternity leave and doctor’s visits that will continue even after birth, may find it easier to simply terminate pregnant women, in blatant disregard of the law that protects women against pregnancy discrimination. Discrimination against working mothers, referred to as “gender plus” discrimination, is also prohibited by the relevant human rights laws.

While merely being pregnant does not guarantee an employee’s position, an employer may not take adverse action against a woman if the action is motivated by the pregnancy. Since there will never be a “smoking gun” proving employment discrimination, employees asserting a pregnancy discrimination claim will rely on circumstantial evidence.