New York Employment Lawyer Blog

On March 16, 2009 Lambda filed a friend-of-the-court brief with the Superior Court in Hartford, Connecticut, in the case of Luis Patino v. Birken Manufacturing Co. According to an Echelon Magazine article, Luis Patino alleges that he was subject to harassment during his employment, and that the harassment included derogatory language. Lambda’s brief argues that Patino’s trial court award, which is now being appealed by Birken, should stand. Birken argues that employers should not be liable for anti-gay intimidation. Lambda seeks to ensure that the court rigorously applies state anti-discrimination statutes, and that employers do not allow work environments that are hostile to gay employees.

Sexual orientation discrimination occurs when an employer treats an employee differently solely because of his or her sexual orientation, whether homosexual, heterosexual or bisexual. A growing number of state laws prohibit discrimination against individuals based on sexual orientation, or perceived sexual orientation.

For years, it has been a constant struggle for plaintiffs in New York to recover when claiming discrimination in the workplace. However, a recent decision in the matter of Williams v. New York City Housing Authority should change that. In Williams, the Court interpreted the New York City Human Rights Law, specifically the local Civil Rights Restoration Act of 2005, very broadly, making it easier for discrimination victims in New York City to successfully sue their employers.

Surprisingly, the Court ruled in favor of the defendant in Williams, however, in doing so, the court outlined new standards that employees must meet when making claims of employment discrimination. In the past, to recover on a discrimination claim, an employee had to be a victim of “protracted and pervasive” harassment. Conversely, to recover now, the employee must show that the harassment was little more than “petty slights” and “trivial inconveniences.” In fact, the reason the suit was dismissed in Williams was that the Court found that the alleged discrimination was just that – nothing more than petty slights. However, only in such an instance will the suit be dismissed, and the burden is actually now on the employer to show the harassing conduct alleged was actually petty. So not only did the Court lower the standard that an employee must meet to prove discrimination, but it also took away their burden and shifted it to the employer to prove that the harassment was of no consequence.

Such a decision will likely lead to an increase in employment discrimination suits in New York City. With a more relaxed standard, employees cannot be expected to tolerate any harassing conduct in the workplace, since they know that their employers will have to prove the conduct was petty. It would be a good idea for employers to proactively counsel their employees as to what is acceptable workplace conduct, in order to avoid employment discrimination suits.

For years, companies have been paying female workers less than their male counterparts for the same work. Two women, Lilly Ledbetter and Betty Dukes, are leading the way in the ongoing battle for equal pay for equal work. Their persistence over the last eight years may help to explain a 14% increase from preceding years in sex or gender discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) in 2008.

Lilly Ledbetter filed a complaint with the EEOC in 1999 when she discovered that her male co-workers at Goodyear Tire were being paid substantially more than she was. In May 2007, a Supreme Court majority had ruled that she had no grounds to sue for unfair treatment because of a small technicality in the law; she had failed to file a complaint within 180 days of receiving her first unfair paycheck. Congressional Democrats were outraged at the result and promptly wrote new legislation to close this interpretive loophole. The Lilly Ledbetter Fair Pay Act was signed into law by President Obama in January 2009.

Betty Dukes is still in the midst of an uphill battle for equal pay. After Ms. Dukes complained to her supervisor at Wal-Mart about sex discrimination, she was demoted to cashier and discouraged from applying for managerial positions. In 2000, she and six other women filed the largest class-action sex discrimination suit in American history, Dukes v. Wal-Mart. This case is probably destined to reach the Supreme Court. In the court of public opinion, the women may persevere. The Paycheck Fairness Act, which would substantially strengthen the Equal Pay Act by making class-action suits easier, is now under consideration by Congress.

On occasion, jurors, despite being advised not to do so, have been using outside sources, including the internet, to secure information that should only be provided to them in the courtroom during the actual trial.

We were confronted with just this occurrence when we inadvertently learned that, after the trial had ended, one of the jurors had brought a dictionary into the jury room during their deliberations to determine the meaning of a word that had great significance in the jury’s verdict.

When this came to our attention, we made the appropriate motion and were successful in having the verdict set aside. Thereafter, we were able to negotiate a result fully satisfactory to our client. Surely, however, others may not be as fortunate. An opportunity does not always exist to correct the unfortunate result of a jury disregarding the instructions and directions of the court.

An article in The New York Times on March 18, 2009 commented on this very subject which is now receiving more and more attention. The article outlined a case in which a juror admitted to using the internet to research facts pertaining to the trial. Upon further investigation, the judge was shocked that eight of the jurors had done the same thing. As a result, the judge declared a mistrial.

When there is misconduct by the jury, the cost, the time and the emotional trauma of having to re-try a case will have a dreadful impact on everyone involved. When this occurs because jurors ignore the fact that it is wrong to rely upon any outside sources to reach their verdict, other than testimony and exhibits presented during the actual trial, the harm can be irreversible.

It seems reasonable to suggest that it might be up to the trial lawyer to make certain that the jurors are aware that outside sources are absolutely not to be used to secure information that they can then use to reach their verdict. That purpose is served only by evidence accepted by the court during the actual trial.

We believe we must be vigilant to address possible conduct by a jury in which it should not be engaged. We believe it would prove helpful if we urge the court to strongly caution the jury not to take any such inappropriate action. We believe that in doing so at the start of the trial, and perhaps once or twice during the course of the trial, and then finally during the jury charges, this strong message will be heard and will have a far better chance of being complied with.

Recently, more than 800 workers at nine restaurants were awarded $2.3 million in back wages. The recovery amount was the largest collection in a single case in the New York State Labor Department’s history. The popular Ollie’s Noodle Shops in New York City was one of the restaurant chains named, with some employees owed up to $30,000. According to a recent article in Business Week, the restaurants violated numerous labor laws, including those dealing with minimum wage and overtime.

The New York State Department of Labor plans on conducting worker’s rights seminars at each of the restaurants to explain the rights that workers have under state and Federal laws. This case is the most recent example of the department’s stepped up efforts to crack down on labor law violations in New York.

According to Bloomberg.com, The United States Equal Employment Opportunity Commission (EEOC) announced its total claims filed for the year ending September 3, 2008. There were a total of 95,402 claims filed. This includes claims for employment discrimination and retaliation in the workplace.

This amount represents an increase of 15% over the amount filed in 2007. Interestingly enough, over 25% of the claims filed were for age discrimination. As the population ages, in conjunction with employers feeling pressure to reduce their workforce, employers must be ever-vigilant in ensuring that all employment decisions are made in a non-discriminatory manner. Where a discriminatory bias enters the process, a plaintiff may then work to assert their protected human rights by making a complaint of employment discrimination.

According to the U.S. Equal Employment Opportunity Commission (EEOC) and Law.com, Congress recently enacted the Americans with Disabilities Act (ADA) Amendment Act of 2008 to reverse the holding of several United States Supreme Court cases which narrowed the ADA’s intended scope of protection.

Under the ADA, “disability” is defined as:

1. a physical or mental impairment that substantially limits one or more major life activities;
2. a record of such an impairment; or
3. being regarded as having such an impairment.

Under the first prong, the Supreme Court has narrowly interpreted the meaning of “substantially limits” to mean that the impairment must “prevent or severely restrict” the employee from performing a major life activity. With the amendment, Congress has abandoned the Supreme Court’s strict interpretation and has given the EEOC the power to give a broader interpretation to the phrase “substantially limits.”

The Supreme Court has also narrowly interpreted the term “major life activities” by stating that it only covered activities “that are of central importance to most people’s daily lives.” Until now, activities like running and climbing the stairs were not considered “major life activities.” Because of the amendment, a broad range of activities are now considered “major life activities,” including thinking, communicating and the operation of a major bodily function, such as respiratory and reproductive functions.

Under the third prong, in the past, employees had to show that their employer mistakenly perceived them to have an impairment that limited a major life activity. After the enactment, all the employee needs to show is that the employer believed that he or she had an impairment before being subjected to an adverse employment action. There is no need to show that this perceived disability affected the employee’s ability to perform an activity.

Through this enactment, which has explicitly expanded the ADA’s scope of coverage, more Americans will be able to bring forth disability discrimination claims against their employers.

The recent uproar over the bonuses being paid to AIG executives, in the exact division that caused the company’s financial crisis, presents an interesting legal question. AIG claims that it had no choice to pay the bonuses because it was bound to do so under its contracts with those employees. The question is whether those agreements would remain enforceable given the unexpected circumstances of a financial collapse leading to a government bailout, with the government owning 80% of the company.

Employment agreements in the financial community may often guarantee bonuses and other compensation for employees. Whether such agreements would stand up even where those very same employees led to the collapse of the company would certainly present an interesting legal issue. AIG, however, has clearly chosen not to address that question, in favor of simply paying out the contract. Without actually seeing the agreements, of course, the question remains purely academic.

More suspect, is AIG’s claim that its employees needed to be assured that compensation was not linked to the U.S. Treasury “to attract and retain the best and the brightest talent to lead and staff the AIG businesses...” These “retention bonuses” seem hardly appropriate to retain executives that led the company to the brink of disaster.

In these difficult economic times, many employees in various types of organizations are being terminated as part of reductions in force. What has remained constant, is that at the upper echelons of many top companies on Wall Street and elsewhere, the “Boys Club” remains intact.

Companies are restructuring and downsizing often at the expense of top female executives, in some cases even if the female executives happen to be exceedingly well qualified. Lawsuits against companies for gender discrimination are on the rise because many women feel they are being selected for downsizing not based on productivity or skill set, but because of gender.

While not to say that a struggling economy effects women more than men, it seems as if companies are using the recession as an excuse to perpetuate the “Boys Club” at the top levels of their organization.

In light of the economic downturn, many major corporations began laying off employees by the thousands. A recent article in The New York Times stipulated companies are attempting to carry out scattered layoffs to avoid high profile publicity and the Worker Adjustment and Retraining Notification (WARN) Act policies. The WARN Act requires 60 days’ notice prior to a layoff of 500 or more people at one location or a cut of at least one-third of the work force at a site. The WARN Act also requires 60 days’ notice if an entire plant or location closes. Generally, companies will provide 30 days' notice before a layoff if notification is not required by law, though many states have passed their own WARN Acts to cover smaller scale layoffs.

Today, companies are not hesitating to make layoff announcements and managers are attempting to demonstrate that they are taking an active stance in cutting company expenses. However, some companies are choosing to layoff fewer employees at a time and are being less forthcoming with information about these layoffs. In many instances, employees are left to find out about smaller layoffs through blogs, employee message boards and union groups. Labor experts have recently made a few suggestions to strengthen the WARN Act such as adopting the California threshold of 50 people let go at one site, or a national standard, requiring 60 days’ notice if a layoff includes 1,000 or more employees nationally. Regardless of the laws in place to protect employees in the instance of a mass layoff, companies should have policies in place to better handle the dismissal of workers, particularly in such trying economic times.

Robertson Sanitation, a Georgia trash and recycling company, has been forced to pay $475,000 to settle a class action suit from the United States Equal Employment Opportunity Commission (EEOC) in relation to its discriminatory hiring practices.

The company, according to the EEOC, regularly hired less qualified males instead of females who were better qualified. In addition to the monetary damages, the EEOC will also monitor Robertson Sanitation’s hiring practices for the next four years.

This case raises significant issues related to employment discrimination. It is a further example of just how differently women are treated, not only while they are working, but also during the hiring process. While many employment discrimination claims arise during or after one’s tenure with an employer, claims in relation to an employer’s failure to hire an employee for discriminatory reasons are of great significance as well.

The tragedy in our workplace seems to have limitless impact upon all of us. We seem not to know what to do. Not our economic advisors, not our legislators, not even our business people. It is as though the crisis in our workplace goes on unabated.

It is exciting, therefore, to find that some people have now provided some encouraging possibilities which might at least dilute, to some extent, the crisis that exists in our workplace across the country. A recent New York Times article discussed the possibility of addressing mass layoffs by reducing the workweek for employees rather than terminating positions. The idea of reducing an employee’s workweek rather than terminating the employee might remedy, to some extent, the need for an employer to terminate the employee entirely. At least it appears to be worth the effort to consider this option as an initial step, before the employee’s position is eliminated entirely. It might well be that the savings to the company will, as a first step, be adequate to temporarily prevent mass layoffs in some circumstances.

We would like to confirm our support of any employers who pursue, in a meaningful fashion, part-time reductions in employees’ workweeks as a first step. Hopefully, in some cases, it may be adequate financial relief for an employer, thereby eliminating the need for the mass layoffs that have recently been taking place. It seems to us, that taking a first step is always the way to begin.

The New York Times recently published an article detailing the effects that the financial crisis is having on women on Wall Street. The article references a piece from Forbes Magazine which cites figures estimating that roughly 72 percent of the more than quarter-million financial sector jobs lost were held by women.

As a result of the loss of jobs falling seemingly disproportionately on women, many of these women are responding by bringing gender discrimination suits against banks and brokerages, including against giants such as Citigroup, Merrill Lynch and Bank of America, claiming that they have been unfairly singled out for layoffs. Moreover, already thinly represented among the upper management of financial firms, Wall Street recently lost three of its most powerful female executives as a result of the recent downturn.

While it is unclear whether any of the recent suits will be successful, and naturally the financial firms dispute the allegations, there is belief that this may be the beginning of a larger trend. It is widely believed that women in the financial sector have, in the past, been hesitant of suing for fear of being ostracized in their industry, and bearing the brunt of heavy lay-offs within the financial community may prove to be the opening of the floodgate for future gender discrimination suits against employers in the financial sector.