New York Employment Lawyer Blog

New York residents have presented Representative Jerrold Nadler with thousands of signatures from an online petition yesterday in Manhattan. The petition aims to expand the Civil Rights Act of 1964 to prevent discrimination based on sexual orientation and gender identity. Currently, the Civil Rights Act prevents discrimination on the basis of race, color, national origin, religion, and sex. Nadler was targeted because he heads Congress’ subcommittee on civil liberties. He was also an original sponsor of the Employment Non-Discrimination Act. The bill is currently pending in Congress.

The Supreme Court ruled in favor of white New Haven firefighters who claimed they were the victims of reverse employment discrimination. The court held that employers do still have an obligation under the civil rights laws to avoid discrimination in hiring, promoting, and compensating workers based on race, and that the firefighters were unfairly denied promotions because of their race. The majority of the court found that the fire department was wrong to throw out the results of a promotion exam because no African Americans were found likely to be promoted on the basis of the exam.

However, this ruling is surrounded by controversy. It was argued that this new ruling leads to confusing results and makes it difficult for employers to determine whether or not they are complying with the civil rights laws. As justification for their ruling Justice Anthony Kennedy stated that “fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” and the firefighters’ attorney furthered that “individual achievement should not take a back seat to race or ethnicity.”

In her dissent, Justice Ruth Bader Ginsberg said that while the court does have “sympathy” for the white firefighters, they have “no vested right to promotion, nor have other persons received promotions in preference to them.” Ginsberg, in addition to the other dissenters, believe that this new holding “will not have staying power.”

The Equal Employment Opportunity Commission has filed a lawsuit against Kmart alleging employment discrimination. The Commission claims that Kmart violated the American’s with Disabilities Act when they fired a disabled greeter at one of their stores in Norfolk, Virginia.

The lawsuit was filed after the Commission was unable to reach a voluntary settlement with Kmart. The discrimination suit is seeking reinstatement of the employee, monetary damages, and an order from the Court that Kmart follow policies to ensure people with disabilities are offered equal employment opportunities at their stores.

Muslim transit employees being forced to wear an MTA logo on their turbans are arguing that they are being discriminated against by the MTA because of their religion. The employees have complained that the MTA’s forcing this imposition upon Muslims and Sikhs is disrespectful of their religious practices. Recently, the employees took action to try to get rid of the logo once and for all. On June 16, twenty-seven New York City Council members signed a letter sent to New York City Transit President Howard Roberts, calling for him to eliminate the requirement.
The logo requirement started as a compromise to allow Muslims to wear their religious turbans or scarves, but the workers see it as the MTA’s way of presenting an ultimatum that forces the employees to wear a corporate logo in their sacred space if they want to continue working.

Along with this letter from the City Council members, the MTA is also in the midst of a 2004 federal discrimination lawsuit with the U.S. Justice Department regarding employees and their religious headwear. It is still unclear whether the current situation will lead to court action against the MTA as well.
City Councilman John Liu referred to the rule as, “as backwards as you can possible imagine,” while City Councilman David Werpin said, “No one should ever, ever, under any circumstances, have to choose between their livelihood and their religion.”

A fired manager at Justin Timberlake's New York barbeque establishment, Southern Hospitality, has filed a lurid sexual discrimination suit. This is the second time in six months that Mr. Timberlake’s Upper East Side barbecue joint has been sued by a former employee. Previously, in a federal case filed in November, a busboy claimed Southern Hospitality employees weren't getting their fair share of tips and overtime. In this latest legal battle, aspiring actress Alison McDaniel, claims Timberlake business partners Eytan Sugarman and Ronnie Kaplan are guilty of "vile and discriminatory conduct." McDaniel, who worked at the Second Ave restaurant for a year, was fired after she wrote a memo complaining of the harassment. McDaniel, 29, said her job as manager of Southern Hospitality, became an X-rated nightmare in which she was spit on, pelted with expletives and subjected to porn. In at least one instance, McDaniels asserts, that she was locked in a room and forced to watch pornography with Sugarman, whom made fun of her when she began crying. McDaniel’s has filed suit in Manhattan Supreme Court naming Timberlake and best friend Tracy Ayala as defendants. According to court papers, McDaniel also alleges other female workers endured racist comments, such as a hostess who was fired, whom was nicknamed "that ghetto girl at the door". No claim has been filed with the EEOC.

In 1998, the United States Supreme Court held in the cases of Burlington Indus., Inc. v. Ellerth and Faragher v. City of Boca Raton that an employer is not liable for workplace harassment claims arising under federal law if it can show “that the employer (1) had exercised reasonable care to avoid harassment and to eliminate it when it might occur; and (2) that the complaining employee had failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise to prevent harm that could have been avoided.” This defense is critical to employers in defending workplace harassment claims.

Recently, in Barnum v. New York City Transit Authority, the Appellate Division, Second Judicial Department, held that the Faragher-Ellerth defense can be used by employers to defend claims under the New York State Human Rights Law, and under the New York City Human Rights Law for claims that arose prior to the enactment of the Local Civil Restoration Act of 2005, an amendment to the NYCHRL which requires courts to interpret the NYCHRL more favorable to employees than would be justified by case law interpreting federal and state civil rights laws. Moreover, other recent court decisions have held that the Fragher-Ellerth defense is unavailable under the NYCHRL for harassment claims arising after October 2005, when the Restoration Act was passed.

The applicability of the Faragher-Ellerth defense to employment harassment claims continues to be a developing legal issue. In Zakrzweska v. The New School, the federal district court explained that “[t]he apparent tendency to press claims under the state and city antidiscrimination laws, either in lieu of or in addition to claims under federal statutes, creates a genuine need for resolution of the vicarious liability standards applicable to employers under those statutes.” Additionally, the district court asked the United States Court of Appeals for the Second Circuit to state conclusively whether the defense is available under the NYCHRL.

Recently in New York State, a woman sued a school district saying she was fired from her position as the school principal because the parents wanted a black principal running their child’s school. The woman, Barbara Pleener charged race discrimination in that parents had insisted the board of education find a black person to run the school their children attended.

In this case, Pleener v. New York City Board of Education, the court said that it is not okay for an employer to discriminate against a person on the basis of race even if they claim it is for a client's happiness. Pleener cited race as a reason for her termination as she was replaced by a black principal. However, Pleener lost her case because the district proved her firing was based on the fact that parents had become outraged when she fired someone with a record of insubordination less severe than her own record.

Can an employer in New York prevent an employee from working for a competitor if no non-competition agreement was ever signed? Relying on federal and state court decisions in New York labor/employment law Judge Lewis Kaplan concluded that the answer is no.
Recently, American Airlines sued a former employee who possessed sensitive company information and went to work for Delta. Delta investigated the matter and found that the employee never disclosed any of the information to Delta and the former employee offered to destroy or return all materials.

In American Airlines, Inc. v. Charles F. Imhof and Delta Airlines Inc. Judge Lewis Kaplan concluded that there was no material risk of irreparable harm to American Airlines on the taking of the information. Judge Kaplan went on to hold that the inevitable disclosure theory, which bars an employee from working for a competitor because he would be unable to avoid using confidential information gained from working for the former employer to benefit the new employer, only applies when the employee has knowledge of actual confidential information and there is deliberate misappropriation of the information.

The University of Phoenix (“UOP”) settled a discrimination claim for $32,500, filed by the EEOC and a former employee of the University, Latrish Elaine Tarhini.

The EEOC and Tarhini filed a discrimination claim against UOP, claiming that UOP had violated the retaliation statute of the Civil Rights Act of 1964. Tarhini an enrollment counselor claimed that UOP management said she would not be in line for a promotion because she had made an earlier pregnancy discrimination claim against UOP and its parent company, Apollo Group Inc.

In the settlement, UOP admitted to no wrongdoing or liability according to a statement provided to the Phoenix Business Journal. However, the EEOC said UOP will be required to provide updates on other possible retaliation claims by its workers.

A federal judge in Newark, N.J., has construed the Lilly Ledbetter Fair Pay Act as
extending workers' time to sue only for claims based on pay bias. Michael Richards, a
48-year-old man of Asian descent alleged that he received unjustified low ratings in his job on
account of his race and age and in retaliation for his complaints about unfair treatment.

U.S. District Judge Katharine Sweeney Hayden wrote in Richards v. Johnson & Johnson,
"While the Act certainly contains expansive language ... it ... does not save otherwise untimely claims outside the discriminatory compensation context." However, while the act "does not save untimely discrimination claims outside the compensation context, the statute explicitly affirms the evidentiary principle ... that Title VII and the ADEA do not bar an employee from using time-barred acts as background evidence in support of other timely claims," she wrote.

Under the ruling, the plaintiff is still allowed to pursue his race and age discrimination
claims under Title VII, the Age Discrimination in Employment Act and the New Jersey Law
Against Discrimination.

Domestic workers, including nannies, working in New York households, are fighting for a Bill of Rights in order to protect themselves from employment discrimination, among other things. Although the bill pertains to New York, if passed, it will be the first such bill in the United States to challenge the exclusion of domestic workers from the protection of national labor law and will set a crucial precedent for other states to follow suit.

Supporters of the bill claim that the domestic workers deserve special protection because they are the most invisible and vulnerable workers in the state. Currently, domestic workers are not covered by employment discrimination laws, occupational safety laws or the Family and Medical Leave Act (FMLA).

The RAISE Act, a new law proposed by Senators David Vitter, R.-La and Tom McClintock, R-Ca, changes the cap imposed upon Union employers. Currently, employers can pay their employees no more than the Union’s established ceiling, and no less than the set floor. The RAISE act would allow employers to reward exceptional employees by bumping up their hourly pay for deserving work.

An important provision, however, limits the threat of discriminatory pay. The Act contains a stipulation that prohibits employers from raising non-union employees’ compensation in hopes of undermining the union. The Act can bring significant change by encouraging employees to work harder towards the potential rewards. Under the RAISE Act, the typical union member could earn between $2,600 and $4,300 more per year.

Melody Morales, a woman suing the Hawaiian Tropic Zone in New York for alleged racial discrimination, was accused of being a prostitute by defense counsel. After pictures surfaced on the internet of Ms. Morales on various websites, defense attorneys brought the matter to the attention of the presiding judge in an attempt to have the case dismissed.

Ms. Morales’ attorneys maintain that their client has never been involved in prostitution, and that the photos in question must have been lifted from her Myspace page and posted on other websites without her knowledge or consent.

Ms. Morales is suing the Hawaiin Tropic Zone for racial discrimination, alleging that they did not hire her for a position with the company due to her Latin accent.

In 2009, the New York Yankees opened a majestic new state-of-the-art stadium, replacing the legendary cathedral that had housed the team for over eighty years. The theme of replacing the old has not stopped there, according to a former long-time employee. JohnVendikos, who worked as a bartender at the old Yankee Stadium’s Stadium Club for twenty-seven years, filed a complaint with the Equal Employment Opportunity Commission on May 26, alleging age discrimination by the Yankees.

Despite his long-time employment, the team informed the 73-year old Vendikos that he would be required to re-apply for his job when the new stadium opened across the street. He dutifully complied with the demand, since he wanted to continue to work for the Yankees.
Vendikos said that after waiting in line for three hours to be interviewed with Legends Hospitality, the new merchandising/concessions company co-founded by the Yankees, the interviewer asked him, “Why should I hire you? You’re an old man!” Vendikos thought the interviewer was joking, but when he found him to be serious, Vendikos was shocked and insulted. Then the veteran drink-server, who had been a bartending staple at the stadium since the early 1980s, never even received a phone call from the Yankees.

A Yankees spokesperson told the New York Post that the team has hired many people over the age of 65 at the new stadium and that the organization did not discriminate against Vendikos.

Vendikos’s attorney Lenard Leeds sees it differently, stating, “We can’t believe that after 27 years, that John was told you’re just too old. We wonder what George Steinbrenner would say. He used to serve George Steinbrenner.” Leeds says that this is a textbook case of age discrimination.

Oil giant, ConocoPhillips, which operates refineries around the world, agreed to settle a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC).

According to the lawsuit, ConocoPhillips unlawfully discriminated against Clarence Taylor, a pipe fitter, at its refinery in Linden, N.J. Taylor had served as a deacon in his congregation, and in May 2006, was informed by the company that he was required to work a schedule that would force him to miss Sunday mass or else he would be terminated.

“If reasonable alternatives exist, the law does not allow an employer to force an employee to choose between keeping his job and practicing his faith,” said District Director Spencer H. Lewis of the EEOC’s New York District Office.

ConocoPhillips actions, violate Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination and requires employers to make reasonable accommodations for employees’ and applicants’ sincerely held religious beliefs.

The EEOC had sought relief for Taylor and policy changes at ConocoPhillips, including: revised employment policies and new training for its managers. ConocoPhillips has agreed to the recommend changes by the EEOC and will provide $20,000 to resolve the ligation, including relief for Taylor and a donation to charity, as well as five days of additional leave for Taylor.

In the current economic climate, many people are finding themselves out of work. People who have spent years working for the same company are finding themselves spending their days searching for jobs. While many find the task difficult, those aged 45 and over have the hardest time landing that new job. A recent New York Times article found that not only did it take longer for this age group to find jobs, 22.2 weeks as compared to 16.2 weeks for their younger counterparts, but they also faced a much steeper drop in earnings once they found a new job. In 2005, a professor at Texas A&M University conducted a study in which she sent out 4,000 resumes for a hypothetical woman changing only the high school graduation year. She found that workers under 50 were 40 percent more likely to be called for an interview.

The article continued by documenting the plight of older, laid off workers, many of whom have children already in college or attending in the next few years. These workers are frustrated with their inability to change their situation. Some have resorted to thinking about a change in career, hoping that a different career will be easier to break into. Either way, these workers feel sure they are being discriminated against because of their age, something they recognize each time they interview.

In what may become a landmark case in employment discrimination law the Supreme Court is set to rule on the case of Ricci v. DeStefano by the end of this month. Making the case even more intriguing is that Supreme Court nominee Sonia Sotomayor, was on the three-judge panel that rejected the claim of three white police officers who argued that they were victims of racial discrimination when they were denied promotion.

Ricci deals with two provisions of the Civil Rights Act, which in essence contradict each other. One part of the Act states that no employee may be discriminated against because of his or her race, sex, religion or national origin. Another part of the Act exposes an employer to liable for using a hiring or promotional standard that has a “disparate impact on the basis of race,” unless it can be defended as a “business necessity.” During oral arguments, Justice Souter, whom Sotomayer is nominated to replace, commented that these two provisions put the employer in a “damned-if-you-do, damned-if-you-don’t situation.”

In Ricci, the city of New Haven decided to throw out the scores of white firefighters, who were taking the exams to be promoted, because it feared that a potential lawsuit when no black firefighters scored high enough to be promoted. The outcome of this case will prove to have profound effects on employment discrimination practices across the country.