New York Employment Lawyer Blog

Over the past decade, obesity in the United States has been gaining more and more attention. In addition to health concerns, there are legal implications to this growing epidemic. Specifically, the Americans with Disabilities Act (ADA) may provide legal redress for the growing number of individuals for whom obesity has threatened employment. Generally speaking, while it may be difficult for an obese person to prevail on a disability discrimination claim absent a physical reason for the disability, such as a gland problem, it may be easier for an obese person to prevail on a claim of perceived disability discrimination; that an employer made assumptions about his or her capabilities based upon stereotypes associated with weight.

For an individual to prevail under the ADA, he/she must meet one of three requirements: (1) that he/she has a physical or mental impairment that substantially limits a major life activity; (2) that he/she has a record of such an impairment; or (3) that he/she is regarded as having such an impairment. In EEOC v. Watkins Motor Lines, Inc., 18 AD Cases 641 (6th Cir. 2006), the Sixth Circuit Court of Appeals stated that morbid obesity alone does not constitute a physical impairment that an employer could regard as substantially limiting a major life activity. However, the Sixth Circuit stated that obesity resulting from a physiological cause might qualify as a disability. In other words, a plaintiff with a gland problem, hormone imbalance or other physical problem that could trigger obesity, may be able to prevail on a disability claim for obesity.

A plaintiff may be more likely to prevail on a claim under the third prong, that he/she is regarded as disabled by an employer. In Sutton v. United Air Lines, Inc., 527 U.S. 471, the Supreme Court stated two conditions for being perceived as disabled: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities or (2) a covered entity mistakenly believes that an acutal, non-limiting impairment substantially limits one or more major life activities. To prevail, an employee must show that the employer believes that the employee has a substantially limiting impairment that the employee does not actually have, or that the employee has a substantially limiting impairment when, in fact, the employee's impairment does not actually significantly limit him/her. In other words, perceived disability discrimination tends to result from an employer's assumptions about an employee's capabilities based upon a stereotype, and such assumptions are not tolerated under the law.

Age discrimination is a problem that is widely acknowledged to be spreading throughout workplaces all over the country. Its effects can be felt by everyone from bankers to doctors to lawyers to business executives and it also has reared its ugly head in the realm of professional sports.

Former Los Angeles Clippers General Manager, Elgin Baylor, has sued the NBA franchise, the league and the team owner, alleging that he was subject to age discrimination and race discrimination. Baylor, a hall of fame player, had been with the Clippers organization for 22 years and alleges in his lawsuit that he was “grossly underpaid during his tenure with the Clippers.”

Age discrimination has the ability to impact all industries and individuals and, as indicated by recent statistics put out by the EEOC, claims of age discrimination are on the rise. It therefore falls to the lawyers who represent the victims of this despicable form of discrimination to act as “private attorney generals” and police the workplace to eradicate age discrimination once and for all.

Cancer patients and survivors may find that apart from their battle with cancer, they may need to fight to regain or keep their employment. Whether based on an inability to work during treatment or termination due to a discriminatory bias by an employer, persons diagnosed with cancer may have difficulty holding on to employment. In a system where health insurance is linked directly to employment, the loss of a job can significantly impact health care. For persons looking for work when diagnosed with cancer, the situation can be much more difficult.

A recent report by The Journal of the American Medical Association concluded that cancer survivors in the United States and Europe were 37 percent more likely to be unemployed than their healthy counterparts. The perception that cancer patients are disabled and unable to work may play a significant role in that figure.

While the law is not perfect, it does afford protections for cancer patients and survivors. The Americans with Disabilities Act and other similar laws clearly find cancer to be a disability, so that employees with cancer are protected against employment discrimination. Even if a patient is cancer-free, the law protects discrimination against employees based on a history of cancer.

According to a recent article in the New York Daily News, a female police officer has sued the New York Police Department (NYPD), claiming that she was passed up for a promotion to Sergeant because she had previously complained about gender discrimination within the NYPD, and because her supervisor “didn’t think that women could do the job.” Police Officer Robin Marable also claims that her supervisor said that he could not have two women working together, as they would be more prone to on-the-job injuries than male officers. Marable says that when she initially complained to the NYPD about her treatment, her supervisor filed for an internal investigation of her, alleging that Marable had used an NYPD E-ZPass for personal errands. Marable has successfully sued the NYPD before, and was awarded $16,000 in a gender discrimination suit by the Latino Officers Association in 2004.

It is abundantly clear that the intensification of job cuts, which has broadened during the past year, has devastated the workplace. One of the direct results of this fact is that lawsuits by employees who have been terminated have markedly increased. With the increase in the number of terminations, employees have carefully considered the circumstances for their termination and a good number have alleged that their terminations were unjustified under the law.

It is evident that the workforce has accepted the fact that, in most cases, employment is “at will.” They recognize that the employer can terminate them for a poor reason, in fact, for no reason at all, other than a reason which would violate their human rights. However, some terminated employees have claimed that when there is a reduction in force, those who should not have been included in the reduction in force find that they are terminated nevertheless. Therefore, they find it difficult to accept the fact that they were properly named among those who must leave. Our experience confirms that, oftentimes, there is an inordinate amount of “older” employees who have been asked to leave and in some of those cases, the “older” terminated party believes that his/her termination was not truly consistent with the purpose of the reduction in force. When that occurs, they frequently question the selection process.

In many instances, we have been faced with statistics provided to us by the terminated employee which, on their face, seem to suggest that it is appropriate to question how the selection process was actually enforced. Clients recognize that the employer has a right to embark upon a reduction in force when business reasons dictate, as painful as that may be. But frequently, when they review the ages of those that are retained and those that are selected to leave, they sometimes find that there is an unfair percentage of “older” employees who have been terminated. It would be appropriate, therefore, in some cases, for employees who have been selected for departure to review carefully the statistics that are provided to the terminated employees. By so doing, they may then be in a reasonable position to question the propriety of the process that was used in establishing who “goes” and who “stays.”

The Worker Adjustment and Retraining Notification Act, also known as the WARN Act, helps protect employees who are affected by a mass layoff or plant closing. It requires employers, under certain circumstances, to provide affected employees with advance notice of such adverse action. Should notice not be provided as required by the WARN Act, the employer is required to pay for the salary of the affected employees for the notice period.

New York State recently passed its own WARN Act and the law went into effect on February 1, 2009. Prior to that date, New York State workers were covered by the Federal WARN Act. New York State’s WARN Act is far more expansive than the Federal act. For example, under the New York State law, employers with 50 or more full-time employees must provide at least 90-days notice to affected employees and representatives of affected employees before ordering a mass layoff, relocation or branch closing. The Federal WARN Act applies to employers with 100 or more employees and requires only 60-days notice and a larger number of affected employees before the notice provisions are triggered. Significantly, New York employers that are covered by the WARN Act that fail to file a WARN notice in the allotted time period will be subject to penalties of up to $500 per day for each violation. In addition, the new law provides the Commissioner of Labor with authority to order relief, including back wages and unpaid medical benefits, for employees who do not receive the required notice.

On February 12, 2009, it was announced that JCPenney will pay $50,000 to settle a race discrimination lawsuit. The Equal Employment Opportunity Commission (the EEOC) brought the suit on behalf of Reinell Singh, an African American employee who worked as a greeter at the company's store in the Staten Island Mall in New York.

"All employees have a right to be judged by their work performance and not their race," the trial lawyer who represented the EEOC in the case said, according to The New York Times. "This consent decree will help make sure that what happened to Ms. Singh does not happen to any other JCPenney employee."

The EEOC had charged that a supervisor referred to Ms. Singh with racial epithets and subsequently fired her for race-related reasons. In addition to the $50,000 in compensatory damages to be paid to Ms. Singh, JCPenney also agreed to a three year consent decree that requires adoption of a non-discrimination policy and procedures for handling complaints of employment discrimination. They will provide anti-discrimination training, post a notice about the EEOC and its lawsuit, provide a memorandum setting forth the requirements of Title VII of the Civil Rights Act of 1964 to all store employees and improve monitoring and reporting of employment discrimination.

Spencer H. Lewis, Director of the EEOC’s New York District Office, made a statement saying, "In spite of advances since Title VII of the Civil Rights Act was enacted 44 years ago, race discrimination still remains one of the most pervasive problems in today’s workplace. Racial slurs must simply not be tolerated, and the EEOC will fight to eradicate any such discrimination from the workplace."

A recent article by Andrew McIllvaine in Human Resource Executive Online entitled, "Layoff Lawsuits," discussed the increase in workplace discrimination claims filed with the Equal Employment Opportunity Commission (EEOC). Apparently, in the last fiscal year, there was a 15% rise in charges filed for a total of 95,402 which was a 26% increase from fiscal 2005. There have been ebbs and flows in the amounts of claims filed over the last several years. In 2001-2002, which was during an economic downturn, the EEOC saw an increase from prior years. However, in 2003, during a period of prosperity, fewer claims were filed.

The article also discusses the implications that employers face in conducting mass layoffs and reductions in force. The author notes that in addition to state and Federal anti-discrimination laws, employers must also take notice of other Federal acts such as the Older Workers Benefit Protection Act (OWBPA) and the Worker Adjustment and Retraining Notification Act (WARN), which also regulate actions employers can take in the workplace. Finally, it is noted that while there are several regulations in place in terms of employee protections, employers should continually be mindful to make their decisions in a fair, legitimate, non-discriminatory manner.

On February 5, 2009, a Texas man filed a gender discrimination lawsuit in Federal court against Hooters of America, Inc. (“Hooters”) after the chain restuarant denied him a job as a server in May 2008. The claim seeks an injunction to stop Hooters from “discriminating against male applicants for the [server] position,” as well as an unspecified amount of money, including emotional and punitive damages.

The claim challenges an 11-year-old agreement, in which Hooters paid $3.75 million in a 2007 employment discrimination class action suit settlement. Although Hooters agreed to create gender-neutral positions such as kitchen staff and bartender positions, the 1997 settlement allowed Hooters to continue to exclusively hire women as servers. The current suit alleges that the adopted policy remains discriminatory, and even though Hooters servers are referred to as “Hooters Girls,” the positions should not be limited to women.

Under Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate on the basis of race, color, religion, sex or national origin. However, if Hooters can prove that it is a bona fide occupational qualification for a server to be female, then it is legally permissible for Hooters to discriminate against males for positions as servers.

The bill that President Obama recently signed into law significantly increases the protections that employees have against discriminatory pay differences. Women who are paid less than their male counterparts, for example, will now have greater opportunities to seek remedies in court.

The Lilly Ledbetter Fair Pay Act of 2009 states that an unlawful employment practice, such as a female being paid less than male co-workers, occurs not only when the discriminatory decision is made, but also “when an individual is affected by application of a discriminatory compensation decision . . .” This means that instead of looking at when the discriminatory decision was made, courts will now look at when the impact of the discriminatory decision occurs.

Accordingly, employees like Lilly Ledbetter, who unknowingly suffered years of discriminatory pay discrepancies based on her gender, will be able to seek relief, regardless of the fact that the discrimination occurred years ago. The courts will now – more appropriately – focus on the discriminatory conduct that is actually occurring.

With the way today’s technology is progressing, it seems like every other employee is given a Blackberry by their employer, enabling the employer to contact their employees after work, on the weekends and during their vacations. Employees find themselves constantly working, even though they are no longer within the walls of their job. They check their Blackberry right when they wake up, while they’re riding the subway and before they go to sleep. This trend has raised the question: Should employees be compensated for checking their Blackberrys outside of work?

Generally, the Fair Labor Standards Act requires employers to pay employees at least the Federal minimum wage for all hours worked and overtime pay for all hours in excess of 40 hours in a workweek. These “non-exempt” employees must be paid for all hours worked. On the other hand, there are certain types of employees, such as managers, who are exempt from this law. The danger of overtime lawsuits against employers from the use of Blackberrys after work will come from non-exempt employees.

A recent battle between ABC-TV and the Writers Guild of America East (“WGAE”) provides a preview of the kinds of problems that may arise regarding the use of Blackberrys. According to CBS The Early Show, several months ago, ABC asked several new writers to sign waivers stating that they will not be compensated for the use of their Blackberrys outside of work. When the WGAE asked the writers not to sign the waiver, ABC took away their Blackberrys. Soonafter, ABC returned the Blackberrys to their employees, agreeing that the writers would be compensated for their use of the Blackberry “beyond routine.” This overtime policy implemented by ABC may set the trend for other companies who are facing this situation and are worried about non-exempted employees starting lawsuits for overtime pay.

This week, The New York Times published an article reporting that on February 5, 2009, President Obama signed an Executive Order to revamp the White House’s office for religious-based and neighborhood programs. The Executive Order will expand the office, which provides government support to religious organizations and charities that provide vital social services to its surrounding neighborhood communities, an initiative launched under the direction of former President George W. Bush.

Obama’s expansion of the office, however, has not settled the ongoing debate over whether these faith-based organizations that receive Federal grants for their social service programs may legally discriminate on the basis of religion, hiring only those individuals whom share their faith.

The former administration held the firm belief that faith-based organizations could indeed hire based on religious belief, a position that elicited fierce debate between religious groups and other interested groups and individuals concerned with keeping church and state separated. There is obvious potential for employment discrimination on the one hand, and religious groups that wanted to preserve their right to use religion as a hiring criterion, have threatened to discontinue their participation in the government program if they are forced to change their policies. However, the current administration has taken the position that the faith-based policy should be reviewed on a case-by-case basis prior to the determination of whether a particular group can receive Federal funds and hire employees based on their religious beliefs.

Joshua DuBois, Director of the new White House Office of Faith-Based and Neighborhood Partnerships, acknowledges the need for case-by-case review due to the lack of clarity in this policy field. However, DuBois leaves the door open for possible recommendations from the administration for legislative action on the issue of the legality of religious-based hiring discrimination upon receipt of Federal funds in the future, in the event that his office consistently comes up with the same findings in its reviews.

According to a recent article published in The New York Times, the rise in layoffs has also coincided with new laws that give employees more legal arguments to draw from in initiating a lawsuit. There also seems to be a sense that President Barack Obama will be more proactive in enforcing employment laws than President Bush’s administration was. He recently signed legislation that overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire Company, Inc.

Both class-action suits and individual claims are being filed with increasing regularity. Terminated employees of Ethan Allen and Dell have filed age discrimination suits, and a veteran has sued Lockheed Martin, alleging that they discriminated against veterans. Some employees are also investigating whether their former employer violated the Worker Adjustment and Retraining Act, or the WARN Act, which requires 60 days notice before laying off employees. WARN Act violation lawsuits have been filed against Lehman Brothers, an airline company and two law firms. New York has similar legislation that provides that companies must give 90 days notice. Lawsuits alleging WARN Act violations do not require that the government investigate a claim first, like many employment discrimination claims require, which could lead to a rapid escalation of WARN Act suits.

Last week, the New York Post published an article about a New York woman who applied for a job as a waitress at the Hawaiian Tropic Zone in Times Square and was repeatedly denied employment by a manager who ultimately stated that she was too “ghetto,” and that he did not wish to “ruin [his] business with [her] Latin accent.” She was also told that she did not “speak white.” The woman was born in Brooklyn to Puerto Rican and Dominican parents and speaks English fluently. She was initially told by the manager that there were no jobs available, despite being informed by other employees that the restaurant was hiring.

Under both Federal and New York State law, it is unlawful for an employer to discriminate against a prospective employee on the basis of race, color, or national origin. Refusal to hire based on stereotypical differences, traits or assumptions about the individual based upon race or national origin is also prohibited under the law.

The woman is seeking $500 a day - or $130,000 a year - for every year she could reasonably be expected to have worked there, plus punitive damages. Punitive damages are granted both as a means of punishing employers for their discriminatory conduct and as an effort to signal to other employers that they should not engage in similarly unlawful conduct.

On January 30th, 2009, the U.S. Department of Justice (“DOJ”) reached an agreement with the Puerto Rico Police Department (“PRPD”) resolving a claim that the PRPD engaged in unlawful employment discrimination and workplace retaliation based on gender. The complaint, which was filed in March 2008, alleged that the PRPD engaged in discriminatory practices toward Officer Jeannette Carballo Lopez on the basis of her sex. According to the DOJ, the PRPD required Lopez to perform secretarial tasks that were not required of male officers, and the PRPD subjected Lopez to discriminatory remarks. Lopez was told that the Division of Investigation of Stolen Vehicles, which she was working for, was "not for females." Furthermore, the PRPD engaged in retaliation toward Lopez because she opposed employment practices that she reasonably believed to be unlawful, and because she filed a charge with the Equal Employment Opportunity Commission under Title VII. Under the terms of the agreement, the PRPD will pay Lopez $125,000, including attorney’s fees, and will reinstate her to an agent-investigator position.

This case presents most unfortunate circumstances because it involves a government agency engaged in gender discrimination and workplace retaliation. Though just a territory of the United States, Puerto Rico still must answer to the DOJ, and it is troubling that the Puerto Rican Police Department would engage in gender discrimination. As a law enforcement agency, we expect the PRPD to set a positive example in the workplace. Though the case did not go to trial, and thus no form of punitive damages were imposed on the PRPD, it is hopeful that this will deter similar conduct in the future so both men and women can feel comfortable working in an environment free of employment discrimination.