New York Employment Lawyer Blog

Howard Hoffman, a traveling salesman who resided in Atlanta, Georgia, brought an age discrimination suit against his former employer Parade Magazine, a New York State employer, after he was terminated and replaced by a younger employee. Hoffman received the phone call informing him of his termination from Parade Magazine while he was sitting on a plane in Atlanta.

Parade moved to dismiss the claim on grounds that New York court lacked subject matter jurisdiction, since the termination did not occur in New York City or New York State citing Shah v. Wilco Sys., Inc. 27 A.D.3d 169 (N.Y. App. Div. 2005). Shah had held that “the locus of the decision to terminate is of no moment, and that what was significant is where the impact was felt."

However, on appeal the Appellate Division, 1st Department on May 7, 2009, declined to apply Shah’s “impact rule” and instead chose to focus on whether the discriminatory action took place within New York, which was the reasoning applied in the federal district court in Rylott-Rooney v. Alitalia-Linee Aeree Italiane-Socita Per Azioni, 549 F.Supp.2d 549 (S.D.N.Y. 2008). The First Department held that “Shah could not be applied so broadly as to preclude a discrimination action where the allegations support the assertion that the act of discrimination, the discriminatory decision, was made in this state.” The court further declared that “application of logic and common sense alone would dictate that if an employer located in New York made discriminatory hiring and firing decisions, those decisions would be properly viewed as discriminatory acts occurring within the boundaries of New York.”

It has been reported that conservatives will attempt to use a recent ruling by Judge Sotomayor and the Second Circuit Court of Appeals to support their veto of President Obama’s decision to appoint Judge Sotomayor as the Supreme Court Justice. Sotomayor would be replacing Justice Souter. The Second Circuit, along with Judge Sotomayor, recently ruled against the Plaintiffs in a reverse discrimination suit brought by Caucasian firefighters against the city of New Haven, Connecticut. The city disposed of the results of a promotion exam when no African American firefighters scored high enough to be promoted, which the Caucasian firefighters argued was clear reverse discrimination.

Conservatives are likely to attack Judge Sotomayor on the claim she is unwilling to fairly assess cases of parties whose claims she does not like. The United States Supreme Court will hear the firefighters’ appeal, and it may rule in June 2009, before the Senate will hold the confirmation hearing regarding Judge Sotomayor’s Supreme Court appointment. The ruling by the Supreme Court may bear heavily on how Judge Sotomayor is viewed and could effect her confirmation as Justice Souter’s replacement.

According to The Council for Responsible Genetics, there have been almost five hundred cases of individuals who have been turned down for employment or other positions or who have lost insurance due to genetic abnormalities.

However, a part of the Genetic Information Non-Discrimination Act (GINA) came into effect this week.. GINA will give Americans more protection from health insurance discrimination based on their personal genetic information. GINA also prohibits insurance companies from basing coverage eligibility or premium costs on DNA tests. Insurance companies are now also banned from requesting that health insurance policy applicants undergo genetic testing or screening.

A case on appeal before the Appellate Division, Third Department will test the extent to which the New York State Human Rights Law can be enforced against public school districts. In the case of Newfield Central School District v. New York State Division of Human Rights, the school district is making the claim that as a public school district, it is exempt from the law's reach. The State, on the other hand, is claiming that there is no distinction between public and private schools.

This is a case that is being very closely watched as the decision will have a significant impact on the coverage of the Human Rights Law. New York State has one of the most broad State Human Rights Laws and based on its legislative history, the law ought to be more inclusive of those it protects as opposed to being filled with execptions and exemptions. We will monitor the outcome of this case and hopefully the decision will come down shortly.

In 14 Penn Plaza LLC v. Pyett, _ U.S. __, 129 S.Ct. 1456 (Apr. 1, 2009), the United States Supreme Court determined that, as a matter of law, a union may, through a collective bargaining agreement (“CBA”), waive an individual’s right to present statutory claims of employment discrimination to a jury. The concern, however, which the Court recognized, is that since the union has control over which claims go to arbitration and which claims do not, the union could effectively prevent the employee from any kind of trial, whether through arbitration or through court.

The courts are now beginning to define the limits of Pyett. In Kravar v. Triangle Services, Inc., No. 06-cv-07858 (RJH) (S.D.N.Y. May 19, 2009), a court issued one of the first decisions applying Pyett. In Kravar, the employee sought to submit her claims to a jury. She argue that arbitration was possible for her because she had tried to submit her claim to the union, but was told that she “could not do so because the union was most likely to dismiss [her] complaint.” Id. at pg. 5-6. The Court, denying the motion to compel arbitration, held that:

The current record is sparse, but it only supports a single conclusion: The CBA here operated to preclude Ms. Kravar from raising her disability-discrimination claims in any forum. As such, the CBA operated as a waiver over Ms. Kravar’s substantive rights, and may not be enforced.

The Court noted that these facts “falls within an exception to the enforceability of a union-negotiated arbitration agreement expressly noted in Pyett.”

Accordingly, while a waiver of a jury contained in a CBA is enforceable, a jury will remain available if the union, in deciding which cases go to arbitration, prevents the individual from having his or her claims heard.

On January 1, 2009 amendments made to the Americans with Disability Act (“ADA”) went into effect. The amendments significantly broaden the coverage of the ADA by overturning two recent U.S. Supreme Court decisions that had made it more difficult for individuals to establish they were “disabled” under and covered by the ADA. The new law strongly states that the definition of “disability” is to be interpreted “in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA].” The bottom line is that many more people will be covered by the new, expanded definition of “disability.”

Under both the original ADA and the Amendment, a “disabled” person is one who has, “a physical or mental impairment that substantially limits one or more major life activities,” a record of such an impairment, or being regarded as having such an impairment. However under the Amendment, the “regarded as” prong of the definition of disability has been amended to require that the individual be regarded as having an impairment, without regard to whether it substantially limits a major life activity. The only requirement for the “regarded as” prong is that the impairment must not be minor (undefined) or transitory (lasting less than 6 months).

The Amendment also defines and vastly expands the term “major life activities” from the prior definition.

The Amendment further overturns two United States Supreme Court decisions: Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). In Sutton, the Supreme Court held that the determination of whether an impairment substantially limits a major life activity must be made considering the ameliorative effects of mitigating measures. The Amendment reverses this holding and requires that impairments be evaluated without regard to the ameliorative effects of mitigation measures (such as hearing aids and medication; however, normal eye glasses and contact lenses still should not be considered). The Amendment also overturns the holding in Toyota, which held that the ADA terms “major”and“substantial” were to be interpreted strictly under a demanding standard to prove one is disabled, and defining “substantially limited” as “severely restricts.” The Amendment states that the term disability is to be viewed broadly and that the EEOC should promulgate regulations redefining “substantially limited” in line with the original purpose of the ADA.

Another important change requires that impairments that are episodic or in remission qualify as a disability if they would qualify in their active stage. Thus, an individual with cancer that is currently in remission, would have their condition evaluated in its active stage. This change, along with the change regarding mitigating measures, moves numerous conditions (cancer, diabetes, epilepsy, etc.) from a case by case determination to almost certain status as a disability.

A federal jury recently awarded a Middle School Teacher on Long Island five million dollars after she was fired for making a complaint of sexual harassment against the school's principal, according to an article in the May 7, 2009 edition of New York Newsday.

The teacher claimed the principal had used sexist language in her presence and after her complaints were made, the principal would bet other staff members whether he would be able to "make her cry." In addition to the award to the teacher, her husband was also awarded $250,000 as compensation for his wife's emotional pain and suffering.

This case illustrates that retaliation in the workplace is often times more severe than the underlying discrimination. Judges and juries regularly believe that organizations should "know better" that once someone complains about discrimination they deserve protection, not retaliation.

The New York City Human Rights law which protects employees against all forms of discrimination, also has one of the broadest anti-retaliation provisions of any law in the country.

In order to have a claim of retaliation under the New York City Human Rights Law, an employee must complain about race, gender, age, sex, national origin, pregnancy or disability discrimination. The employee need not prove that the discrimination actually existed, merely that the employee had a good faith, reasonable belief that they were being discriminated against on one of those bases.

Under Title VII of the Civil Rights act of 1964, the federal anti-discrimination and retaliation law, an employer to be found liable for retaliation must take adverse employment action against an employee. Such adverse employment actions include termination, demotion, withholding compensation and others.

Under the New York City Human Rights Law, the conduct of the employer does not need to be adverse employment action, merely conduct that is reasonably likely to deter an employee from complaining of discrimination. This provides much broader protection.

The Equal Employment Opportunities Commission (EEOC) filed suit against Jon Wieland Homes and Neighborhoods, Inc., an Atlanta-based home builder, for pattern and practice race discrimination. Wieland Homes and Neighborhoods, Inc. assigned sales agents to housing communities based solely on their race. The African American agents were assigned to housing communities comprised of lower-priced homes while the Caucasian agents were assigned to housing communities of the more expensive homes. Accordingly, the African American sales agents were making significantly less commissions than their white peers.

The management expressly stated that the goal of such assignments was to hire and assign employees whose race corresponded with the predominate population of each community. The EEOC became involved when a human resource representative refused to participate in this discriminatory process. The complaint alleges that the company’s discriminatory conduct violated Title VII and seeks back pay and compensatory and punitive damages on behalf of the affected African American sales agents. Additionally, the EEOC seeks injunctive relief in an effort to stop the company’s racial discrimination.

National Equal Pay Day is designated on a Tuesday each April to remind people that on the time line of a pay period that starts on Monday, women’s wages do not catch up to men’s pay, from Monday through Friday, until the following Tuesday. This means that on average, female employees have to work more than six days to earn what men earn in five days. This demonstrates the underlying trend that female workers earn about 80% of what men earn for comparable positions and work, which is blatant gender discrimination.

The disparity between male and female compensation is not as stark in the public sector as it is in the private sector. A recent study conducted by the Government Accountability Office concluded that women who worked in Federal government positions have improved their relative position vis a vis their male counterparts in recent years, to the tune of earning 89% of what male employees earn (compared with 72% approximately 20 years ago). Providing for considerations of women choosing less lucrative positions and taking more time out from employment, this study reported that women actually earn 93% of men’s earnings, implying that their “catch-up clock” actually rang on Monday at 2pm, as opposed to their privately employed female counterparts.

The report emphasized two factors that have helped spur women’s gains (1) the characteristics of the female employment pool, including educational advances which now closely resemble those of me and (2) changes in the occupational mix including less female employees working in clerical positions than 20 years ago.

The discrepancy between the gaps in private and public earnings may suggest that hiring and promotion policies play an important role in this outcome. Whereas it is not the case in private employment, job descriptions are more standardized for government employment and pay scales are a matter of public record.

A cell biologist is seeking tens of thousands of dollars in damages from the University of Chicago, her former employer, for gender discrimination. According to a recent article in the Chi-Town Daily News, the biologist lost her job in 2006, when she ran out of grant money. She claims that during the 10 years she spent at the university, she was given low-level tasks and experiments that could have been performed by students and non-technical personnel. Her complaint alleges that she was passed up for promotions and paid less than her male peers. The complaint also states that the university used $143,000 in grant money, that she procured for her own research, on a male colleague’s research.

Sex or gender discrimination occurs when an employer treats an employee or prospective employee differently solely based upon his or her gender. The law against sex or gender discrimination covers a number of issues that employees may face in the workplace, such as sexual harassment, difficulties with equal pay and the existence of a "glass ceiling" that prevents women from reaching the highest level positions in a company.