New York Employment Lawyer Blog

The New York City Human Rights law prohibits discrimination based on sexual orientation. This ban includes perceived sexual orientation as well, meaning that an employer may not discriminate against an employee that it simply senses is homosexual. Recently, the Court of Appeals in the United Kingdom found that a man forced to leave his job because of merciless taunting by his colleagues who took him to be a gay, won the right to claim compensation from his employers. In this case, a married man with children alleged that he was tormented by his coworkers because he had attended an all-boys boarding school. His coworkers knew that he was not gay, but taunted him nevertheless because of homophobia and associated stereotypes. In finding that the victim’s claims came within the United Kindom’s regulations, the Court held that the legislature in prohibiting sexual harassment in the workplace could not possibly have intended that a victim be required to declare his sexual orientation in order to establish that harassment was based on sexual orientation.

The U.S. Supreme Court issued a decision on January 26, 2009, which is sure to be the subject of man future blog posts. In Crawford v. Metropolitan Government of Nashville, the plaintiff was a former municipal employee who had been terminated. The company stated that it had fired the employee for “embezzlement.” The employee, however, believed that she was terminated because she participated in an investigation into a sexual harassment complaint asserted by a co-worker. Crawford stated that she was being punished for having confirmed that the complaining employee was actually sexually harassed.

The issue, therefore, was not whether the employee who asserts a claim was protected by workplace retaliation laws – which she would be – but whether an employee who does not herself assert a claim but merely participates in the investigation is also protected.

The Court unanimously agreed that such an employee was protected. Justice Souter wrote that “When an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” The Court recognized, therefore, that just by confirming that sexual harassment occurred, the employee was opposing it.

While this decision has long been the rule in New York, both the district and appellate courts in Crawford had reached the opposite conclusion. We are pleased to see that the U.S. Supreme Court is ensuring that employees who in any way oppose discrimination in the workplace are protected against workplace retaliation.

In an earlier blog, we discussed two proposed Federal laws which were intended to address the issue of equal pay for both men and women. As could be expected, management and employee attorneys view the passage of this legislation very differently.

Management attorneys argue that equal pay legislation will result in more litigation. Employee attorneys supporting the passage of the proposed legislation believe it is essential legislation, long overdue.

The bill referred to as the Lilly Ledbetter Fair Pay Act, was designed to address the result of a U.S. Supreme Court decision that made it more difficult to seek equal pay between men and women.

The other bill, The Paycheck Fairness Act, would require an employer to more fully validate the reason for any pay difference. Another purpose of the law would be to prevent employees who reveal pay information from being punished.

All of the above represent significant benefits to employees. This fact is quite important because, we trust, it reflects in some manner, the attitude of Congress. For that reason alone, we wait, watch and will report further as the proposed legislation moves forward.

The U.S. Supreme Court, in Ricci v. DeStefano, will address the question of whether municipalities may decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants, as a result of concerns that certifying the results would lead to charges of racial discrimination.

In a case brought by a group of white firefighters and a Hispanic firefighter in New Haven, CT, the employees argued that they were discriminated against because they were not black. The firefighters believed they would have been promoted for captain and lieutenant positions if the city did not invalidate the test results soon after it had learned that no black candidate scored high enough to be considered for the management positions. When defending its decision, the city argued that it rejected the exam because, if certified, it would create a disparate impact on black candidates and the city would face potential employment discrimination lawsuits.

The federal trial judge upheld the city’s decision and dismissed the case. The United States Court of Appeals for the Second Circuit affirmed the dismissal.

Reverse discrimination cases present highly sensitive issues employers face in an effort to promote diversity in the workplace. Courts may hear more reverse discrimination cases in the future as affirmative action programs become more prevalent.

There are various Federal, New York State and New York City laws that protect employees from religious discrimination on the basis of their religious beliefs. Even if a particular employee’s religious beliefs are not entirely compatible with work hours, workplace practices or certain days of the week, employers MUST work with the employee to try and accommodate him/her.

The reasonable accommodation standard under the framework of a religious discrimination claim is somewhat different from that analysis under a disability claim. An employer has an obligation to reasonably accommodate a "sincerely held" religious belief. The difficulty arises in determining what exactly is or is not "sincerely held."

The reasonable accommodation standard is subject to an employer claiming undue hardship, which means that it would conflict with legitimate business interests.

Religious discrimination in the workplace does not happen openly in front of many witnesses. It does, however, still exist and we must work to put an end to it and to celebrate the concept of religious freedom on which our country was founded.

According to a recent article published in The New York Times, Merrill Lynch paid $1.55 million to settle a lawsuit brought by an analyst who claimed he was terminated because he is an Iranian Muslim. Majid Borumand, a quantitative analyst, claimed that Merrill Lynch discriminated against him on the basis of his religion and national origin when he was terminated and that a less qualified employee was retained and promoted. As an additional obligation under the settlement agreement, Merrill Lynch agreed to improve employee training on employment discrimination.

The New York Times recently reported that Nascar has settled a multi-million dollar race discrimination and sexual harassment suit with a former employee. Among the egregious conduct claimed by Mauricia Grant, was that two employees exposed themselves to her and that she was called “Nappy Headed Mo” and “Queen Sheba” by other Nascar employees.

The conduct to which Ms. Grant was subjected is not uncommon. In many workplaces, employment discrimination is something that has not been eradicated. In fact, discrimination in the workplace is showing no signs of slowing down. EEOC statistics from recent years demonstrate this fact. The increase in claims filed for both employment discrimination and workplace retaliation claims confirm our long-standing belief that employment discrimination is a disease that must be eliminated from the workplace.

We are encouraged to report that on Friday, January 9, 2009, the U.S. House of Representatives confirmed its support of the need to broaden the ability of our courts to enforce the laws against gender discrimination. A New York Times article published on January 10, 2009 discussed the two related bills passed by the House.