New York Employment Lawyer Blog

This past week, the U.S. Supreme Court heard oral arguments in the Ricci v. DiStefano case. The case centers on whether a city may decline to accept the results of a civil service exam in which there were no minority candidates eligible for promotion. Ultimately, the City of New Haven did not accept the results of the exam which impacted the white firefighters who had passed the test. The City argues that the act was “race neutral” as both minority and non-minority applicants were not promoted and thus no one was harmed.

According to a recent New York Times article, Chief Justice Roberts raised the question that if the City does not like the results of an exam, whether that gives them a “blank check to discriminate.” This case is unique as it presents issues of race discrimination from both sides. The minority candidates can argue that they were disadvantaged by a biased and flawed exam and the non-minority candidates can claim that there was reverse race discrimination by the City when it chose not to accept the results of the exam. Whatever the outcome, this case presents very relevant issues of race discrimination in the employment law context.

In response to a harassment suit filed by the U.S. Equal Opportunity Commission (EEOC) in U.S. District Court for the Southern District of Florida, Palm Beach Division, Nordstrom, Inc. agreed to pay $292,500 in damages to 10 former employees. The suit alleged that the department store manager “harassed Hispanic and black employees based on their national origin, race and color, and retaliated against those who complained about the harassment” in violation of Title VII of the Civil Rights Act of 1964.

According to a recent press release issued by the EEOC, the lawsuit contained allegations that the alterations department manager made statements that she “hate[d] Hispanics,” and that they were “lazy” and “ignorant.” EEOC Regional Attorney Nora E. Curtain explained one of the major problems was that “instead of dealing with the despicable racial and ethnic comments, Nordstrom management allowed the harasser to retaliate against the employees for complaining.”

In addition to damages, Nordstrom also agreed to distribute its policy addressing unlawful harassment to employees, provide harassment training, post a notice of the lawsuit resolution and submit semi-annual reports to the EEOC on all harassment complaints received.

In a stark reversal of both its own prior decisions and the majority of the lower federal appellate courts, in the case of 14 Penn Plaza LLC v. Pyett, (April 1, 2009), the U.S. Supreme Court, in an opinion written by Justice Clarence Thomas, held that a union, through a collective bargaining agreement (“CBA”), may waive the rights of its members to bring claims of employment discrimination in court. Union members, therefore, are only entitled to assert claims in a union-sponsored arbitration, and not in court before a jury.

Despite the Supreme Court’s holding in Pyett, many issues remain unresolved. For example, the union, in a brief submitted to the Court, argued that the CBA provision at issue was never intended to limit a union member’s right to go to court for an employment discrimination claim. In fact, the union submitted evidence that during the negotiations for the CBA, management sought language that would clearly place such a limit on union members, which the union rejected. The Supreme Court, however, did not address this issue.

The Court also did not address the fact that the arbitration provisions could effectively deny union members the right to assert claims in any forum. Under the CBA, only the union, and not the individual employee, may bring a claim. If the union desires not to bring an employee’s claim, for whatever reason, that employee will have no remedy whatsoever. Even if a claim is brought to arbitration, it is the union’s claim, and not the employee’s claim, so that the union could settle the claim or even withdraw it, without the individual’s consent. The employee does not even need to be at the arbitration. The Court did not hear this issue, however, sending the case back to the lower courts to decide this issue and others.

The Supreme Court, in Pyett, clearly wanted to hold that, as a matter of law, a union may waive an individual’s right to a jury in employment discrimination cases. It remains to be seen, however, whether this particular CBA waiver, which clearly has a negative impact on an individual employee’s rights, will stand.

According to recent articles in The Washington Post and on CNN.com, two U.S. Army recruits of Sikh faith have filed complaints with the Army and U.S. Department of Defense for religious discrimination over policies requiring them to cut their hair and beards and prohibiting them from wearing a dastaar, which is a turban worn as part of the Sikh religion. Captain Kamaljit Singh Kalsi, a doctor specializing in emergency medicine, and Second Lieutenant Tejdeep Singh Rattan, a dentist, were told that their hair and dastaars would not be a problem at the time they were enrolling in the Army’s Health Professional Scholarship Program, which pays for medical education in return for military service. However, they are now being told that to become eligible for active duty in the Army in July 2009, they must cut their hair and beards and remove their dastaars. They are both fighting against the military regulations because it is preventing them from serving their country as medical personnel for soldiers.

The miliary regulations implemented by the Department of Defense permit religious headgear to be worn only if it can be completely covered by the military headgear. Since other headgear is not allowed to be worn on top of the dastaar, Sikhs cannot abide by the regulations. The two Army recruits, who are represented by the Sikh Coalition, a New York-based national advocacy group for the Sikh community, are asking the military to respect their religion and to not make them cut their hair and beards and remove their dastaars because those are mandatory articles of faith according to their religion. If the two Army recruits are unsuccessful, they will be honorably discharged and required to pay back their medical and dental school loans.

According to a press release issued by the U.S. Equal Employment Opportunity Commission (EEOC), Skilled Healthcare Group, Inc. and its related affiliates, operators of skilled nursing and assisted living facilities, have settled a suit brought by the EEOC in 2005 against the company alleging national origin discrimination. Skilled Healthcare Group will pay approximately $450,000 as well as provide substantial remedial relief to a class of Hispanic workers employed at its nursing and assisted living homes.

The EEOC filed suit in response to Skilled Healthcare Group’s implementation of an “English-only” rule that was allegedly only enforced against Hispanic employees. In its complaint, the EEOC identified more than 50 Hispanic employees at Skilled Healthcare Group facilities who were subjected to different terms and conditions of employment, harassment, as well as differing standards for promotion and compensation. The suit initially arose out of a charge of employment discrimination by a Spanish speaking janitor who was fired from one of Skilled Healthcare Group’s facilities in California for violating the company’s English-only policy while other employees were permitted to speak their respective native languages without repercussion. The EEOC further alleged that some of these Hispanic works were prohibited from speaking Spanish to Spanish speaking residents and were even disciplined for speaking Spanish on their breaks while in the parking lot. Moreover, the EEOC alleged that the Hispanic workers were promoted less than their non-Hispanic counterparts, paid less and consistently given less desirable work.

As part of the remedial measures being provided by Skilled Healthcare Group, employees will receive annual national origin discrimination training, patients and facility residents will receive education regarding employee’s rights under Title VII of the Civil Rights Act of 1964, the company will designate an Equal Employment Opportunity monitor to more closely supervise any future employment discrimination complaints, and the company will report their employment practices to the EEOC annually.

A group of employees have initiated a lawsuit against Dell Inc. on claims of age discrimination and sex discrimination. The suit was initiated in the U.S. District Court for the Northern District of California, and was later moved to the Western District of Texas. According to a recent article on ComputerWorld.com, the plaintiffs, who include four former human resources executives, allege that Dell discriminated against women and workers over 40 years of age in numerous areas, including pay, promotion and layoffs. The lawsuit claims that Dell’s executive management team included 14 males and no females, and that women were given lower level positions with less pay than men. Dell has denied the claims and says that the layoffs were consistent with the company’s business needs, and not aimed at particular employees. The company also argues that any losses or damages that were suffered by the plaintiffs were caused by their own actions or conduct. The plaintiffs are currently seeking class-action status, while Dell has moved to dismiss the suit.

Age discrimination complaints were up 30% in the 2008 fiscal year compared to 2007 according to statistics compiled by the Equal Employment Opportunity Commission (EEOC). The vast majority of age discrimination complaints involved layoffs. Evaluating just how pervasive age discrimination is in the current job market is difficult, although older workers obviously believe it is rampant. Sixty percent of workers 45 to 75 said they had seen or experienced age bias according to a 2007 AARP survey.

According to a recent article in The New York Times, as a result of our current economic crisis, more older workers are trying to either stay in the workforce or return to it, but with great difficulty. Older workers must battle stereotypes about their energy and adaptability, as well as the reality that their healthcare costs are greater. Interviews conducted with older, out-of-work executives reveal heart breaking stories regarding their efforts to secure new employment after being laid off. Many have considered taking positions that are far below their experience level in order to remain in the workforce.

Our courts, on occasion, have used foreign law in their decisions. A recent article in The New York Times provided comments that were made by Supreme Court Justice Ruth Bader Ginsburg at a symposium at the Moritz College of Law at Ohio State University. It was evident that Justice Ginsburg saw no reason for U.S. courts not to refer to foreign law. “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” said Justice Ginsberg.

The article stated that “The court’s more conservative members - Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas - oppose the citation of foreign law in constitutional cases.”

In an argument against the practice of using foreign decisions, Chief Justice John G. Roberts Jr. said at his confirmation hearing, “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country.”

During the symposium, Justice Ginsburg referred to a decision by the Israeli Supreme Court concerning the use of torture in obtaining information from suspected terrorists. “The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” Justice Ginsburg said as she described the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.'” Justice Ginsburg said the message of the decision was “that we could hand our enemies no greater victory than to come to look like the enemy in our disregard for human dignity. Now why should I not read that opinion and be affected by its tremendous persuasive value?”

A recent article in New York Metro discussed the impact of the recession on women and how it is a misconception that the downturn has only significantly impacted men. There are many studies, reports and statistics that discuss how many jobs have been lost - for instance, 80% of “on the books” jobs lost between November 2007 and November 2008 were held by men.

However, these statistics do not show the true impact of the downturn. There are many women who are employed in jobs or categories of jobs which are not reported. Some examples of these jobs are household help, nannies and other caretakers. Women in these job categories are often ineligible for unemployment insurance as well. Additionally, many part-time jobs are not included in these studies and women are generally more likely to hold these positions than men.

A recent New York Times article noted that millions of Americans have delayed their retirement due to plummeting 401(k)s, lack of confidence in Social Security benefits and increasing health care costs. Due to the increase of older workers in the labor market, younger workers are facing a scarcity in available jobs in certain industries.

According to recent reports from the Bureau of Labor Statistics, the number of employed workers ages 16 to 24 has fallen by two million over the past two years. Yet, the number of working Americans age 65 and over has risen by over 700,000 over the same time span. In a decade perspective, the number of working Americans age 65 and over has risen 11% from 10 years ago. The number of working Americans age 16-24 has fallen 10% from a decade ago. The employed number for Americans in the age range of 25-29 has fallen 7% from a decade ago.

Recent college graduates are finding it hard to break into certain industries. Younger males with little or no college education have felt the harshest employment impact because they often are the first to be laid off in an economic downturn. People in this category found jobs easily when the economy was healthy, but they now face the greatest competition from older, more experienced workers. At the same time, many older workers say they suffer from age discrimination in certain industries as some employers tend to favor more youthful and energetic employees. “In a bad labor market, different groups perceive that they’re being discriminated against when the real problem is they’re being mistreated by the overall economy,” said Teresa Ghilarducci, an economics professor at the New School of Social Research and author of “When I’m Sixty-Four.”

A recently published study initiated by a coalition of legal, civil rights and industry leaders who created the Madison Avenue Project in 2008 in conjunction with the NAACP highlighted the bias against African-American professionals in the advertising industry in all areas including pay, hiring, promotions, assignments and other areas. The study, entitled “Research Perspectives on Race and Employment in the Advertising Industry,” found that racial discrimination is 38 percent worse in the advertising industry than in the overall U.S. labor market. In addition, the study found that the “discrimination divide” between the advertising industry and other U.S. industries is more than twice as bad now than it was 30 years ago.

One of the most surprising statistics highlighted in the report was that approximately 16% of large advertising firms employ no African-American managers or professionals, a rate that is 60% higher than in the overall labor market. It was also found that African-Americans working in the advertising industry earn $.80 for every dollar earned by their equally-qualified white colleagues.

The study suggested that systemic barriers to equality in the advertising industry have not budged in the last 40 years. It was concluded that appropriate responses to racial discrimination within the advertising industry included rooting out stereotypes which determine employment potential and eliminating assumptions that racial minorities cannot succeed in non-ethnic markets. The NAACP plans to circulate the report to its members, as well as Fortune 100 companies in an attempt to urge them to stop aiding and abetting racial discrimination in the advertising industry.

A U.S. Air Force reservist who lost his job after being called to active duty has just won an award of at least $1 million dollars. The plaintiff, Michael Serricchio, worked as a financial advisor for Wachovia, now Wells Fargo, when he was called to active duty in 2001. By the time he returned to his job, his clients had dispersed and Mr. Serricchio was offered a position on far less favorable terms.

A jury had determined in June 2008 that Wachovia had violated Mr. Serricchio's rights under the Uniformed Services Employment and Re-Employment Rights Act, which requires employees returning from service be given a comparable position. The jury in New Haven, Connecticut, awarded Mr. Serricchio approximately $400,000 in back pay and interest and $300,000 in punitive damages and legal fees, which could reach $500,000. Mr. Serricchio will be awarded these damages, in addition to being reinstated.

This award properly confirms the protections that are so essential for employees who must leave to serve on active duty in the armed services.

A Federal District Court in Minnesota granted privileges to employees in two religious discrimination suits brought by the Equal Employment Opportunity Commission (EEOC) that sought the right to pray during the day against a leading Minnesota chicken processor, Gold’n Plump Poultry, Inc., and an employment agency, The Work Connection. The court held that providing Muslim employees with a break that would coordinate with the timing of prayers was required to accommodate those employees’ religious beliefs.

In addition, the EEOC had alleged in EEOC v. The Work Connection that, in order to be referred for work at two Gold’n Plump’s facilities, applicants were required to sign a form stating that they would not refuse to handle pork during their jobs. In addition to discontinuing use of the “pork form,” The Work Connection will provide 28 class members, job seekers previously turned away for refusing to sign the “pork form,” with an offer for placement at Gold’n Plump. The decrees in both cases prohibit retaliation by the employers and provide for training and reporting to the EEOC.

As additional remedies, Gold’n Plump will provide $215,000 to a class of 128 Somali American Muslims who claimed religious discrimination. An additional $150,000 will be paid to the 28 class members under the consent decree entered in EEOC v. The Work Connection.

“Employers need to recognize the increasing diversity of religion in our country and provide accommodations as required by Federal employment discrimination laws,” stated EEOC Acting Chairman Stuart J. Ishimaru. “Systemic cases such as these make workplaces better for many individuals.”

Claims of religious discrimination and charges filed with the EEOC have been on the rise in recent years and the issue of religious discrimination is becoming more prevalent in the workplace.

In a suit initiated by the Equal Employment Opportunity Commission (EEOC) on behalf of a female education professor and attorney who still teaches at Adelphi University, the university has agreed to pay in excess of $300,000, in addition to other remedial measures, to settle a pay discrimination case brought in 2007.

According to a recent article in The Garden City News, the terms of the consent decree, which settled the suit, calls for Adelphi University to pay slightly more than $300,000 to 37 claimants, increasing the salaries for 30 of the claimants, as well as, in an effort to avoid future pay discrimination at the school, providing monitoring and training for faculty and staff members on anti-discrimination laws. In addition to the salary increases that many of the female claimants will be receiving, they will also receive back pay in compensation for the lower salaries as compared to their male counterparts.

Pay discrimination cases are offspring of gender discrimination cases in which female employees are compensated at lower levels for performing the same functions and having an equal to or greater rank with male employees at the same institution or company. Pay discrimination represents a violation of both the Equal Pay Act and Title VII of the Civil Rights Act of 1964.

According to a report released by the Restaurant Opportunities Center of New York, a workers’ rights advocacy group, occupational segregation and wage inequality are preventing many minorities and women from obtaining the best-paying jobs in New York City’s high-end restaurants. The report defines fine dining restaurants as those that charge at least $40 per guest for a meal.

According to an article in Crain’s New York Business, the Restaurant Opportunities Center of New York conducted a study in which two sets of applicants with similar resumes were applying for the same restaurant positions. One set of applicants were white and the others were minorities. The report found that the white applicants were more likely to receive job interviews, and twice as likely to receive an offer. The study also found that minorities and women earned less than white men.

While the restaurant industry has provided many opportunities for both minorities and women, they are usually offered low-paying positions such as runners, bussers and barbacks and not better-paying jobs, such as maitre’d, manager or bartender. The report is asking legislatures to enact laws requiring restaurants to have better hiring policies and practices and to protect potential and current workers from violations of employment discrimination laws.