New York Employment Lawyer Blog

The 2008 presidential election is extraordinary in many respects. It marks the first time that an African-American, overcoming racial discrimination, has secured the nomination of a major party. It also has had a woman, in spite of an unfair gender bias, advance far beyond anyone’s initial predictions. In addition to these two stereotypes, the New York Sun reported on June 18th about another issue that has permeated the race: the issue of age.

The Republican contender, John McCain, and Barack Obama, the presumptive Democratic nominee, have begun to exchange barbs over the John McCain’s age. The McCain camp alludes to the fact that Obama may be too young, calling him inexperienced. In return, the Obama campaign has suggested that Mr. McCain may be “confused,” or “has lost his bearings.”

Schwartz & Perry’s Managing Partner, Murray Schwartz, commented on the issue in the June 18th edition of the New York Sun, stating “Age discrimination is an insidious, egregious disease. Age should not be a factor in any employment decision that’s made,” he continued. “Not in hiring. Not in firing.”

Mr. Schwartz, while refraining from making any political observations, continued, saying “If someone is going to be ignored as a viable candidate because of age, besides it violating the law, it would be shameful. Experience is a major component of everything.”

Schwartz & Perry specializes in age discrimination suits. If you feel that you have been treated in an unjust manner as a result of your age, please feel free to contact us for a free consultation.

The text of the article can be found at the following link: http://www.nysun.com/opinion/john-lalanne-mccain/80217/.

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Posted In: Age Discrimination , Employment Discrimination , Gender discrimination , Racial Discrimination

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The New York Times reported on June 20th that a Supreme Court ruling has made it easier for older workers to argue that they are being discriminated against based on their age.

The case, which was decided in a 7 to 1 ruling, concerned two dozen workers from a New York federal research laboratory. When the federal government required that the laboratory reduce its workforce, the contractor who ran the lab fired thirty one employees, of whom all but one were over forty.

The plaintiff contended that the language used in the Age Discrimination section of the Employment Act of 1967 put the burden of an age discrimination suit on the employer, rather than on the employee. Justice David H. Souter agreed with the argument, asserting that the employer must provide “reasonable factors other than age” to protect from liability.

This decision is a significant step in protecting older employees from being discriminated against. If you feel that you may have been unfairly treated because of your age, please feel free to contact us for an initial consultation at no cost.

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Posted In: Age Discrimination , Employment Discrimination

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It seems that one cannot look far without seeing something negative related to one's age. These issues do not simply come up in the employment context, it is become a commonly accepted dividing line - either you are "young" or "old." This is seen in everything from campaigns for political office to marketing strategies geared at certain demographics, age is always a significant factor.

It is for these reasons why it is important to be aware of your rights in the employment context and to always be aware - even something seemingly innocuous may reveal something far more significant.

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Posted In: Age Discrimination , Employment Discrimination

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Over the past several months, we have discussed several significant issues in the field of employment discrimination. We have touched upon everything from evidence in discrimination cases to recent verdicts and decisions to emerging trends and ideas in the field.

But, perhaps, the most significant item that had been discussed were the recent statistics regarding claims filed by employees in the workplace. This means that employees are further realizing and becoming aware of the rights they have against discrimination in all its forms. This is particularly gratifying.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Evidence , Gender discrimination , Pregnancy Discrimination , Racial Discrimination , Retaliation , Sexual Harassment , Sexual Orientation Discrimination

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The United States Supreme court will address the significant question of whether an employer in an age discrimination suit has the burden of proving that reasonable factors exist that might explain the disparate impact that a business decision has on a group of older employees or if the burden rests with the employees.

In a case brought by two dozen workers at Knolls Atomic Power Laboratory in upstate New York, 31 employees were terminated using a set of guidelines to evaluate the workers’ skills as well as their amenability to retraining. 30 of 31 employees were over the age of 40 at which the protections of the ADEA apply. The employees won after a jury trial but the judgment was overturned by the United States Court of Appeals for the Second Circuit.

The Age Discrimination in Employment Act (ADEA) is the law under which the suit was initially brought and it references the reasonable factor test but does not indicate where the burden rests.

It would make sense that if the employer wanted to use the reasonable factor concept as a shield, the burden should rightfully rest with them. The determination in this case of where that burden ultimately rests and the impact that will determination will have on the field of employment law will be discussed once the Court reaches it decision.

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Posted In: Age Discrimination , Evidence

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A recent article in the National Law Journal of April 28, 2008, was entitled, "Hot Year Predicted for ADA Litigation." This reflects the fact that the Americans with Disabilities Act (ADA) is currently at a point in which many issues related to it are before the courts. Among the significant issues that relate to the ADA are web-site accessability and handicapped vehicle accessibility.

We encourage our readers to view the relevant portion of our website at www.schwartzandperry.com which has a lengthy discussion of disability and perceived disability issues.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law

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Recently, it has been sad to witness the frequency in Reductions in Force (RIF) which seem to be increasing in intensity. We do wish, however, to point out that there have been occasions, where the “reduction” although identified as such, was, in some part, motivated by age discrimination.

It becomes necessary, therefore, that when a potential client discusses termination as part of a reduction in force, we inquire further to determine whether he or she was identified in the reduction in a fair and appropriate fashion. We have, on occasion, identified instances, in which, during an appropriate and acceptable “reduction” we have found that discrimination existed. When such is found to be the case, the courts have responded by labeling the discriminatory conduct as such, despite the label that was affixed to it by the employer. We believe, therefore, that we must be vigilant in order to identify unlawful conduct, as such, despite the label that may be affixed to it. We would invite our colleagues to review Ferguson v. Lander, 3:06-CV-0328, with respect to this subject.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Gender discrimination

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Recently, a Federal Magistrate Judge concluded that a factory controller was in part terminated because of age discrimination. Although the company argued that the termination was the result of a “Reduction in Force” (RIF), the fact was that his termination was based, at least in part on his age. It would be worthy, therefore, to read the decision of Magistrate Judge Peebles in Ferguson v. Lander.

Although we are aware that the law clearly permits an employer to engage in a RIF. The employer is not protected if it can be determined that the termination was the result of “intentional discrimination under ADEA.”

The case is particularly enlightening because the findings of fact by the Magistrate Judge reflects the mechanism that sometimes occurs in these cases. We are citing the case therefore, not only for its legal interest but also for the fact pattern which is clearly worthy of the attention of all of us.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Evidence

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On March 6, 2008, an article appeared in the New York Times, reflecting the increase in complaints of discrimination in the workplace. The article went on to state that, “federal job discrimination complaints by workers against private employers rose by 9% last year, the biggest annual increase since the early 1990s.” According to the statistics, this was the most filed since 2002.

Based on the article, one might reasonably conclude that job discrimination has intensified. Another reasonable conclusion might also be that more individuals who suffer discrimination in the workplace have been able to observe, from their experiences, that those who complain of discrimination do not suffer the results of reporting discrimination to the same extent they did previously. They have had an opportunity to witness friends and colleagues in the workplace who have reported discrimination but somehow did not suffer the results of discrimination for reporting what they recognized was a violation of their human rights.

There is a reasonable likelihood to believe that it is not necessarily the increase in discriminatory conduct that caused the number of individuals who report discrimination to be greater than before. Instead it will be that they have learned that reporting discrimination does not necessarily produce retaliation. The strong retaliation laws that our lawmakers have enacted throughout our country have, in large part, effectively protected those who report discrimination from the retaliatory conduct they feared in the past. This is certainly a hopeful result.

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Posted In: Age Discrimination , Employment Discrimination , Employment Law , Gender discrimination , Racial Discrimination , Retaliation , Sexual Harassment , Sexual Orientation Discrimination

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In order to start a lawsuit under many federal laws, including Title VII, a plaintiff must first secure the “right to sue” from the Equal Employment Opportunity Commission (“EEOC”). In order to obtain the “right to sue” from the EEOC, a plaintiff must first file a charge with the EEOC in timely fashion.

Against that backdrop, the Supreme Court just clarified what constitutes a “charge” with the EEOC, in its recent decision in Federal Express Corp. v. Holowekci. In Holowecki, the plaintiffs sought to start a claim by filling out an “Intake Questionnaire” with the EEOC, under the ADEA, and subsequently filed a lawsuit. The defendant sought to dismiss the plaintiffs’ lawsuit, claiming that the plaintiff had not filed a “charge” with the EEOC.

The Supreme Court, adopting the analysis of the EEOC, held that a person files a “charge” with the EEOC when the filing, taken as a whole, is a “request” for the agency to take action on the individual’s behalf. Rather than considering the form that is filled out, as the defendant argued, the proper inquiry should be whether the request is for the EEOC to do something, such as investigate, as opposed to a simple request for information from the agency.

The Court, in Holowecki, rejected the defendant’s argument that the plaintiffs’ submission was insufficient because they did not file a charge form and because the EEOC did not process the Intake Questionnaire as a charge. The Court, however, held that the plaintiffs’ submission constituted a charge because it was accompanied by a six-page affidavit asking the EEOC to “Please force Federal Express to end their age discrimination plan so we can finish our careers absent the unfairness and hostile environment . . .” This simple plea for help was enough to transform the submission from a simple request for information into a charge that served as the basis for a lawsuit. The Supreme Court looked at substance rather than form alone.

The Court specifically noted that the EEOC advocated this exact position, and that it reached this holding based on the EEOC’s interpretation of its rules. Combined with its decision the day before in Mendelsohn, where the Court reversed the appellate court for not deferring to the lower court, the Supreme Court appears to be sending a message that it will be placing many determinations in the hands of the lower courts and the EEOC, instead of in the appellate courts.

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Posted In: Age Discrimination , Employment Discrimination

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The United States Supreme Court has just handed down a decision, in Sprint/United Management Co. v. Mendelsohn, that will significantly impact the manner in which a plaintiff may prove a claim of employment discrimination.

In Mendelsohn, the issue was whether the plaintiff could prove his claim of age discrimination by submitting the testimony of other older employees who were fired by different managers than the ones that had fired the plaintiff. The Second Circuit, the federal appeals court in New York, held that the trial court had improperly issued a per se rule against such evidence.

The Supreme Court determined that it was improper for the Second Circuit to reverse the district court’s order. According to the Supreme Court, “a district court is virtually always in the better position to assess the admissibility of the evidence in the context of the particular case before it.”

The Supreme Court also ruled that there is no per se rule regarding the admissibility of discrimination by other supervisors. The Court held that admissibility of such evidence should be based on many factors, “including how closely related the evidence is to the plaintiff’s circumstances and theory of the case,” a decision best left to the lower court judge.

The impact of Mendelsohn, therefore, appears to be a confirmation of the discretion and authority of the lower Courts, placing boundaries on the appellate courts regarding factual determinations.

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Posted In: Age Discrimination , Employment Discrimination , Evidence

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Labor and employment issues, particularly in the context of the protection of federal anti-discrimination laws, are one of the significant subjects to be addressed on the Supreme Court’s docket during this current term. The Court will hear arguments from both employees and employers on issues ranging from age discrimination (ADEA) and disability (ADA) protection to EEOC filing issues to a case relating to retaliation under the federal civil rights statutes. This was originally discussed in the Outside Counsel column of the February 13, 2008, issue of the New York Law Journal written by Robert P. Lewis, which referred to the Supreme Court’s employment law docket this term.

Among some of cases that the Court will decide will be whether the ADEA’s protections against retaliation by one’s employer can be extended to federal employees. Another case poses the question of whether the ADEA’s requirement of filing a “charge” of discrimination is met by the filing by the employee with the Equal Employment Opportunity Commission of an intake questionnaire and accompanying affidavit. The Federal Civil Rights statutes will also be an area of focus for the Court. The statute at issue, 42 U.S.C. § 1981, does not contain the words “retaliation” or “retaliatory,” yet the question presented is whether a cause of action for race retaliation can be brought under the statute.

It is evident that the Supreme Court will be spending a great deal of its time grappling with the complex issues of labor and employment law. The employment field is ever expanding and presents some of the most cutting-edge and developing legal issues of the day. It is apparent that due to the complex and rapid developments in employment law, it is essential that should you believe you might need counsel in your employment situation, it is imperative that you contact an experienced professional in the field. The practice of our firm is devoted to employment law in all of its many facets. You have only to reach out for us and we would be delighted to speak with you. There is no fee for this initial consultation, during which time we would discuss the issues you may have. If you wish to browse our website, we would be delighted to have you do so.

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Posted In: Age Discrimination , Employment Discrimination , Racial Discrimination , Retaliation

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Our courts have consistently held that discrimination in the workplace is rarely done openly. In fact, it is most often done secretly, behind closed doors. Rarely, therefore, will there ever be direct evidence as may be required, for example, in a criminal case. In a criminal case we understand the burden of proof may have to be established, “beyond a shadow of a doubt.” However, with all types of discrimination, whether it is because of age, race, gender, disability, sexual orientation, pregnancy, or any other protected reason, the burden of proof is not required to be satisfied “beyond a shadow of a doubt.” It may be established by circumstantial evidence.

The United States Supreme Court has held that the context of the remark should be considered. The Court stated that “the speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” Ash v. Tyson Foods, 546 U.S. 454 (2006).

Some examples of the type of comments or situations that may be considered are:

• The head of the company claiming that what the company needs is some “new blood”

• Those in a position of hiring saying that the firm could use “energetic new employees”

• Designating persons for transfer in a manner that made it impossible or unlikely that older employees could accept the transfer because of family or personal involvements in a particular location, although younger persons would be able to freely accept such a transfer

• Being told that you are, “too rigid and inflexible”

• Being asked, “when are you going to retire”

These comments, when considered in their totality, may well give rise to a viable claim of age discrimination

Therefore, if you believe you may be discriminated against for any protected reason, such as any of those referred to above, you might wish to contact an attorney practicing in the area of employment law, to secure an educated opinion as to whether you might have the basis for a valid claim.

Since our law firm specializes in the practice of employment law, we would be pleased to talk with, or meet with you, to evaluate your claim. We could then provide you with our belief as to whether a possible claim may reasonably exist. There is no charge for this initial consultation

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Posted In: Age Discrimination , Employment Discrimination , Evidence

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The United States Supreme Court has agreed to hear two new employment discrimination cases this term. One involves age discrimination and the other retaliation against employees for complaining of discrimination. This adds to the several others that the Court had already agreed to hear. Employment law is very well-represented considering that the Court will only hear fewer than 70 cases this term. These issues were discussed in a January 19, 2008 article in the New York Times written by their Supreme Court correspondent, Linda Greenhouse.

The age discrimination case, Meacham v. Knolls Atomic Power Laboratory, the employer fired 31 people, and out of those 31, 30 were over 40 years of age, which places them in the protected class for age discrimination. The employer claimed this decision was made for a legitimate business reason. The Court will decide the question of when an employer claims that employment decisions were based on “reasonable business justification,” whether it is up to the employer to prove that this reason or reasons existed or if it is the burden of the employee to prove that such reason or reasons did not exist. This issue is one that could have a significant impact on discrimination law for many years to come.

The retaliation case, Crawford v. Metropolitan Government of Nashville, involves an employee, Vicky Crawford, who did not make any complaints to management herself, but rather when other employees complained, there was an investigation of the complaints, and at that point Crawford was questioned and discussed what she believed to be harassment. The end result was that the supervisor who was the subject of the complaints was not disciplined but Crawford and several other women who complied with the investigation were terminated. The Court is hearing this case to decide whether protection from retaliation is only available to the employee who initiates a complaint or files a charge with the appropriate government agency or if those who speak in internal investigations can also receive the same protection from retaliation.

It is readily apparent that employment law, specifically employment discrimination, is one of the most active and evolving areas of the law. It is important that employees are aware of the rights and protections they have under the law and if they feel one of these rights or protections is in jeopardy, that an attorney experienced in the field of employment discrimination is contacted immediately.

Should you require the need of an employment attorney, we would be pleased to hear from you. We want to assure our readers that we expect to share relevant employment law matters with our friends as it occurs.

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Posted In: Age Discrimination , Retaliation

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Age discrimination is a creeping disease. It has reached epidemic proportions. Employers, with increasing intensity, are attempting to remove older employees from their work force. The excuses they offer for the termination of these older employees, who do not deserve the humiliation that must come from a termination after many years of acceptable performance are, in many instances, cruel. As in the case of an employee, in his early 50's, who worked for a company for 30 years, and was told he was being fired because the company did not believe, he was a “good fit.” Humiliation, as we unfortunately know, “murders the soul.” ( McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., N.Y.L.J. Sept. 11, 1997 at 25.)

The law does not require a smoking gun to confirm that age discrimination was practiced. The burden an employee has in order to establish age discrimination, as well as any form of discrimination, is not as stringent as the burden of proof required in other types of cases. Our courts have frequently held that discrimination, including, of course, age discrimination, can be established with circumstantial evidence. Circumstantial evidence is less than direct evidence, which includes witnesses or written proof. Circumstantial evidence involves making reasonable inferences based on the proof available.

As has been said in our previous blog entries, there will never be a memorandum written by top management saying, “let’s get rid of the older people.” However, there will likely be ample circumstantial evidence. One example would be if a company were to fire twelve people and replace them with twelve new people. Yet, the twelve people that were fired were all over forty and the twelve oldest in the office and all the new people that were hired were all younger. Moreover, this practice had been on-going for a number of years. It is then at that point one might make a reasonable inference, based on the circumstantial proof available that this particular company had a hostility toward older employees and may be engaging in the practice of age discrimination. In the field of employment law, circumstantial evidence can be very powerful in protecting the rights of employees in the workplace.

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Posted In: Age Discrimination , Employment Discrimination

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