New York Employment Lawyer Blog

A recent article in The New York Law Journal noted that the Office of Court Administration and the New York State Trial Lawyers Association have reached an agreement allowing the administrative board of New York State to set forth a new set of rules regulating jury selection in trials.

The bill, proposed by Assemblywoman Helene Weinstein, would propose three main changes to the existing regulations on jury selection. First, judges would not be allowed to permit jurors who have a bias, but claim that they will serve in an unbiased manner to be accepted as jurors. Second, the new rules would permit plaintiffs to appeal immediately, even without waiting for the outcome of a trial. Finally, the new rules allow judges to set time limits on the selection of jurors.

While these rules, at first, seem to be in the best interests of all parties concerned, there exists some dissent. New York City Corporation Counsel Michael Cardozo and Judge Ann Pfau are dismayed by the changes, saying that the rules are too time consuming and restrictive. Instead of improving the existing system, Judge Pfau claims, the rules would in fact slow the system down, making it even less appealing to prospective jurors.

In an important decision, the U.S. Supreme Court decided in a 7-2 decision that a 19th century civil rights statute, known as Section 1981, provides a cause of action for workplace retaliation. Section 1981’s previous construction allowed it to be used to protect employees against racial discrimination in making and enforcing contracts. It is commonly used in trial, due to its breadth and it allows for an unlimited cap on recoverable damages. As a result of these attributes, Section 1981 may be used more frequently and can now be applied to workplace retaliation cases.

The 2008 presidential election is extraordinary in many respects. It marks the first time that an African-American, overcoming racial discrimination, has secured the nomination of a major party. It also has had a woman, in spite of an unfair gender bias, advance far beyond anyone’s initial predictions. In addition to these two stereotypes, The New York Sun recently reported that another issue has permeated the race: age discrimination.

The Republican contender, John McCain, and Barack Obama, the presumptive Democratic nominee, have begun to exchange barbs over McCain’s age. The McCain camp alludes to the fact that Obama may be too young, calling him inexperienced. In return, the Obama campaign has suggested that Mr. McCain may be “confused,” or “has lost his bearings.”

Schwartz & Perry LLP's Managing Partner, Murray Schwartz, commented on the issue of age discrimination in The New York Sun article stating that “Age discrimination is an insidious, egregious disease. Age should not be a factor in any employment decision that’s made. Not in hiring. Not in firing.”

Mr. Schwartz, while refraining from making any political observations said, “If someone is going to be ignored as a viable candidate because of age, besides it violating the law, it would be shameful. Experience is a major component of everything.”

In a recent article, The New York Times reported that a U.S. Supreme Court ruling has made it easier for older workers to argue that they are being discriminated against based on their age.

The case, which was decided in a 7-1 ruling, concerned 28 workers from a New York Federal research laboratory. When the Federal government required that the laboratory reduce its workforce, the contractor who ran the lab fired 31 employees, all but one of whom were over 40 years of age.

The plaintiff contended that the language used in the Age Discrimination in Employment Act of 1967 put the burden of an age discrimination suit on the employer rather than on the employee. Justice David H. Souter agreed with the argument, asserting that the employer must provide “reasonable factors other than age” to be protected from liability. This decision is a significant step in protecting older employees from being discriminated against based on their age.

President Bush recently signed the Genetic Information Nondiscrimination Act (GINA) into law in May. The act, the first civil rights legislation of the new millennium, protects employees from being discriminated against because of their genetic information.

The act is the first Federal law of its kind to tackle genetic heritage as a form of discrimination. GINA specifically prohibits employers from firing, refusing to hire, or otherwise discriminating against employees on the grounds of an individual’s genetic information.

A recent National Law Journal article reported that unemployment has reached major law firms around the country. The article describes the situation at a major New York City law firm, which has seen an exodus of Associates and Partners as a result of alarmingly low projected profits for 2008.

There are legitimate and illegitimate reasons for termination. The law provides protection for employees who are wrongfully terminated due to such factors as race discrimination, gender discrimination, age discrimination or national origin discrimination.

The 3rd Circuit recently handed down a ruling on what may be one of the first cases of abortion discrimination. A three-judge appellate panel revived Doe v. CARS Protection Plus, which had been dismissed by the lower court, and focused on the question of whether abortion is protected by the Pregnancy Discrimination Act (PDA) of 1978. Plaintiff Doe reluctantly had an abortion after being informed that her fetus had severe disabilities which would prevent its survival after birth.

In the decision, the Judges noted that the PDA covers “pregnancy, childbirth, or related medical conditions,” and that abortion qualifies as one such related condition. The decision also emphasized the fact that the plain language of the PDA, the legislative history of the Act and the EEOC guidelines all support their conclusion that an employer may not discriminate against a female employee because she has had an abortion.

As the job market shrinks, pregnant employees may be on the front line of layoffs, according to some employment lawyers. Recent statistics show that pregnancy discrimination claims filed with the EEOC and state agencies have been rising at a rapid pace – up an alarming 14% from last year and 40% from 1998. In New York, pregnancy discrimination claims have doubled in the past decade, including a 10% jump last year.

In the past, struggling employers looking to shrink their workforce could look first at pregnant women or new mothers without fear of repercussion. However, the Pregnancy Discrimination Act of 1978 now prohibits an employer from firing, refusing to hire or denying a promotion to a worker on the basis of pregnancy. This does not translate into special treatment for pregnant workers; instead, it merely removes pregnancy from the realm of factors to be considered in making employment decisions.

Based upon the recent surge of employment discrimination claims, it appears that pregnant women may be even more vulnerable than before in today’s job market.

The two recent cases decided by the U.S. Supreme Court demonstrate that there is a broad consensus among a diverse group of the Justices that retaliation against workers who complain of race discrimination and/or age discrimination is wrong. In a recent case, Chief Justice John Roberts joined Justice Stephen G. Breyer in the majority opinion of a 7-2 vote holding that a provision of the Civil Rights Act of 1866 covers claims of workplace retaliation that follow complaints about racial discrimination.

In another case, Justice Samuel Alito wrote a majority opinion in a 6-3 decision which held that the Age Discrimination in Employment Act protects federal workers from workplace retaliation after complaining about age discrimination. These two cases show the broad support for protection of employees against retaliation in the workplace.

Employment law issues can arise from seemingly innocuous events. In a recent complaint, Smith v. Thomas and the City of Poplar Bluff, a library assistant alleged that the Poplar Bluff Public Library intentionally discriminated against her based on her religion.

The librarian had refused to participate in the library’s “Harry Potter Night,” which promoted one of J.K. Rowling’s “Harry Potter” novels, on the grounds that the promotion violated her sincerely held religious beliefs against the worship of the occult. She alleges that as a result, the defendant retaliated against her by reducing her hours and reassigning her to physically demanding tasks beyond the scope of her regular job description.