New York Employment Lawyer Blog

A recent article in The National Law Journal entitled, “Women in Law Still Paid Much Less Than Men” discusses the results of a survey conducted of many of the nation’s leading law firms.

The results are striking. There is a significant gender disparity in pay between men and women. For associates, women earn 4% less; for of counsel positions, women earn 6% less; for non-equity partners, the difference is 8% less and the largest disparity is with equity partnership where women earn 13% less than men in the same positions. The results show that there is a glass ceiling with respect to salaries and, even in the legal field, it is still very pervasive.

On December 15, 2008, Mind, a prominent British mental health charity, launched “Time to Challenge,” a legal project that will focus on eliminating disability discrimination in employment as well as several other key areas, such as insurance coverage and government services. While Mind will take on cases that go beyond discrimination, it will also seek to eliminate mental health discrimination in the workplace, where an employee has been subjected to discriminatory termination or constructive discharge.

While mental health disability is covered under the New York City Human Rights law, one interesting aspect of the British legal project is its focus on discrimination perpetrated against someone associated with a disabled person. This focus on discrimination against those associated with people in a protected class under the law may offer another much needed source of protection from employment discrimination.

In Sprint v. Mendelsohn, 466 F. 3d 1223 (10th Cir. 2006), the United States Supreme Court addressed the admissibility of what has commonly been referred to as “me too” evidence, meaning evidence that other employees not supervised by the plaintiff’s manager were also victimized by the same type of employment discrimination. In the Sprint case, the plaintiff was terminated as part of a reduction in force. However, the plaintiff believed that her particular termination was not business related, but rather the result of age discrimination. To support her claim, the plaintiff sought to introduce evidence from five former Sprint employees who claimed that their managers discriminated against them because of their age. None of the five former employees worked in the same department as the plaintiff and none of them worked under the plaintiff’s supervisor. Sprint argued, among other things, that the evidence was not relevant to whether the plaintiff was discriminated against and the trial court agreed, prohibiting the plaintiff from adducing evidence from employees not similarly situated to the plaintiff. On appeal, the Tenth Circuit reversed the trial court’s ruling, holding that the trial court abused its discretion by implementing a per se rule precluding such “me too” evidence. The Tenth Circuit reviewed the plaintiff’s proposed “me too” evidence and found that it was relevant. As a result, the Tenth Circuit reversed the decision and ordered a new trial with instructions to admit the challenged testimony.

Sprint appealed to the U.S. Supreme Court which, affirming the Tenth Circuit’s decision, stated that “[w]e conclude that such [me too] evidence is neither per se admissible nor per se inadmissible.” Because it was not entirely clear that the trial court was applying a per se rule, the Supreme Court remanded the case back to the trial court for a further explanation of its decision. The Court elaborated that the “question [of] whether evidence of discrimination by other supervisors is relevant in an individual Age Discrimination in Employment Act case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.”

Now, a fact-based inquiry must be made on a case-by-case basis regarding “me too” evidence so that a victim of employment discrimination will not be subjected to an absolute rule excluding such evidence as irrelevant. We at Schwartz & Perry LLP believe that the Sprint case represents a victory for employment discrimination plaintiffs who often find their claims difficult to prove because of the lack of direct evidence of employment discrimination.

The challenging field of employment law is one that has been growing significantly, and will continue to grow, over the years. Earlier this year, The National Law Journal and The New York Times published two articles which re-confirmed that employment law is actively growing. The National Law Journal article discussed the fact that major corporate law firms are adding attorneys in their labor and employment groups due to the increase in volume and complexity of the employment matters that their employer-clients are facing. The article that appeared in The New York Times discussed the increase in discrimination claims filed by employees with the Federal Equal Employment Opportunity Commission (EEOC).

The prevalence of employment discrimination in the workplace is confirmed by statistics from the EEOC. Between the years of 2006 and 2007, the number of employment discrimination claims filed with the EEOC rose by over 7,000. The total number of claims in 2007 reached an astounding 82,792. This change is likely just the beginning of a continual increase in claims because of an ever changing workforce that more frequently relies upon their rights under the Human Rights Laws.

Employment discrimination is an ever-growing and ever-changing field and will continue to grow in significance as the U.S. Supreme Court devotes more and more of its docket to employment related cases each year. Hopefully, the day will arrive that lessens the number of claims, or provides us with a solution that creates a system for their resolution that is less costly, more expeditious and less adversarial.

Those of us who practice in the field of employment law have been faced with the realization that, although our work-life expectancy has increased, the age at which we are considered expendable and no longer capable of making a meaningful contribution has been systematically reduced. The inevitable result is that older workers are “forced out” of their positions, well before their work-life expectancy is achieved.

Years ago it was not unusual for people to work until they, themselves, felt they could no longer effectively perform. Now, performance often plays no role when an employee is asked to leave the workplace. Instead, age becomes the determining factor. Regrettably, some companies have actually set ages at which employees face mandatory retirement, although many employees looked forward to remaining at their jobs for a longer period. Although they are physically and emotionally capable of a longer work-life, conditions in the workplace frequently force employees, when they reach their 50s, out of positions they are still fully capable of fulfilling and mastering. It makes no sense, given the experience and energy that goes to waste when this occurs.

We fully recognize, certainly at this time, the strong burdens placed upon management to reduce costs. It is a fact that workers of age frequently earn higher compensation than younger employees. Dispensing with older workers, with higher salaries, rather than younger workers, might appear to represent greater savings for the employer. Therefore, this can be an enticing reason for management to force older workers out if the employer is faced with a need to cut costs. However, that can be a hollow choice, given the fact that we often find the younger replacements frequently in need of more supervision, a period of adjustment and other unknowable pitfalls that arise when experienced workers are removed from their positions. There could well be greater employment costs and frequently a failure to produce the expected and required results. We believe that is why the operative laws against age discrimination provide that “age need not be the only reason for the termination, but only one of the reasons.” Ostrowski v. Atlantic Mutual Insurance, 968 F.2d 171, 180 (2d Cir. 1992).

We recognize that “employment is at will.” We must also recognize, however, that termination that has a discriminatory basis clearly trumps the concept of employment at will. And so the battle begins. Was the termination based upon a reason that has been judicially deemed appropriate, or did age play some role in the termination?

In other areas of employment discrimination, it is inconceivable that we could find any factors that could reasonably justify, or explain away, an act of employment discrimination. No one can reasonably explain, or justify, how a man could do a job, but not a woman. Or how someone in a minority group could not do the job of a non-minority employee. But with respect to age discrimination, we find that there are those in the workplace who argue, despite the laws that provide otherwise, that the employer should be permitted to consider age in its determination as to who should be hired and who should be fired. They argue that the workplace belongs to the employer and that age should not be considered a protected class. Some may even assert that market forces will protect older people and they do not require the protection of age discrimination laws. We say otherwise.

We believe age discrimination is an increasing epidemic. It has escalated to the point that age discrimination now has a pervasive effect in the workplace. This tidal wave of age discrimination must be addressed in vigorous and meaningful fashion.

The U.S. Supreme Court, in AT&T v. Hulteen, is addressing the question of whether several female employees who took maternity leave while working for AT&T in the 1960s and 70s, but did not receive seniority credit for that time, were discriminated against by receiving lesser pensions in the present day. A recent article by the Associated Press, addressed this topic.

The law regarding the treatment by employers of maternity and pregnancy leaves was changed in 1979, but AT&T is arguing that the law does not retroactively apply to actions prior to that date and that the claims should have been brought earlier. Whereas the plaintiffs argue that each time a reduced pension check is paid, a new act of employment discrimination is committed.

In whichever favor the Court rules, it will reflect the ever-evolving nature of employment law as well as further demonstrating the significant attention this field is receiving by the U.S. Supreme Court.

Employees who are diagnosed with cancer are protected against employment discrimination under Federal, New York State and New York City laws. As the court stated in Berk v. Bates Advertising USA, Inc., 1997 WL 749386, at *4 (S.D.N.Y. Dec. 3, 1997), “It is clear that cancer patients were contemplated in the drafting of the Americans with Disabilities Act.” Employees who are presently battling or are survivors of cancer, therefore, are protected against disability or perceived disability discrimination in the workplace.

An employee with cancer is protected even if he/she is not actually disabled, but is “perceived” as being disabled by the employer. Accordingly, an employee who is not disabled and who is fully capable of performing all the duties of his/her job can present a claim of disability discrimination, if the employer believes that the cancer diagnosis suddenly renders him/her a useless employee.

An individual’s marital status has no bearing on that individual’s ability to perform a job. Why is it then that in only 20 states in the U.S., marital status is a protected classification under the various discrimination laws? Marital status is not protected under the Federal Anti-Discrimination laws, namely Title VII of the Civil Rights Act of 1964. If the majority of states and the federal government do not protect individuals on the basis of his/her marital status, it must not be that big of a problem right? WRONG!

Marital status discrimination is very real and, unfortunately becoming more and more prevalent in today’s workplace. In these tough economic times, competition for jobs has never been greater, nevertheless, determining who is hired, promoted or fired on the basis of someone’s marital status is against the law. Even asking, “Are you married?” in an interview has been held to constitute marital status discrimination.

Often times, marital status discrimination can be found where employers set different expectations for single versus married employees, or where companies provide special benefits to married individuals with families which single employees are not able to take advantage of.

The New York City Human Rights Law §8-107 provides the following:

“It shall be an unlawful discriminatory practice for an employer or an employee or agent thereof, because of the actual or perceived ... marital status ... to refuse to hire or to bar or to discharge from employment or to discriminate against such person in compensation or in terms conditions or privileges of employment.”

In this day and age, the Federal government and the remainder of the state governments should follow the example set forth by the New York City Council and adopt laws that protect individuals from discrimination based on marital status.

Employment discrimination has taken over the front page in New York State. Rarely, if ever, are candidates under consideration for a job published, let alone made known. However, the Commission on Judicial Nominations did just that after New York Chief Judge Judith S. Kaye stepped down. Here, seven potential replacements have been named, all of them men.

In an article that appeared in today’s New York Law Journal, Joel Stashenko reports that both New York Governor David A. Patterson and New York Attorney General Andrew M. Cuomo have spoken out against the lack of diversity amongst the candidates to replace Kaye. While no one is calling the process discriminatory, Governor Patterson did say he was “outraged.”

Clearly any of the seven men under consideration would be fine additions to the Court, however, this situation shows that the “glass ceiling” is very real, even where the government is involved.