New York Employment Lawyer Blog

Potential employees were disqualified from temporary jobs with the 2010 Census Bureau in New York City for their criminal background. Civil rights groups are bringing a lawsuit in response to their discriminatory practices, alleging they violated the Civil Rights Act. Applicants with a previous arrest are required to provide official records regarding the matter within 30 days to challenge the information. This is required of any applicant with even the most insignificant criminal background. Applicants could be disqualified simply for being picked up as a suspect in a crime.

The Census Bureau’s policy on applicants with a previous arrest has been criticized before, yet they have not made any changes to ensure they are treating potential employees fairly.

More information is available here.

A ruling by the California Supreme Court makes it easier for employees to get their discrimination claims heard in court. Under the old rules, a lawsuit could be tossed out if the employer proves that the discriminatory comments were “stray remarks.” This ruling allows discrimination cases to be heard by a jury even if the comments are made by employees who are not in a position to fire, or if the comments happened long before the decision to fire is made.

In this claim, a 54-year-old employee alleges that he was fired because of his age. He says that executives called him an “old man,” said that he wasn’t a good “cultural fit,” and that his ideas were “too old to matter.” The company claims that he was fired due to poor performance.

A gender discrimination suit against pharmaceutical giant Novartis resulted in a settlement of $175 million. The lawsuit, on behalf of Novartis’ female sales staff alleged that the company discriminated against women by paying them lower salaries and offering them fewer chances of promotion. A 2004 suit against the same company resulted in a jury award of $250 million dollars in punitive damages.

As a part of the agreement, Novaris will pay $152.5 million to the current and former female sales staff. A further $22.5 million will pay for a program that will revise their sexual harassment policies and address gender disparities at the company.

More information can be found here.

The cat’s paw theory, as applied in employment law, allows employers to be held liable when an individual with a discriminatory animus influences the decision of another with no discriminatory animus. In Staub v. Proctor Hospital, the Seventh Circuit Court of Appeals held that a mid-level manager with a discriminatory animus, who influenced the decision of a higher-level supervisor, was the proper set of circumstances for the cat’s paw theory. In overturning the plaintiff’s favorable verdict, however, the Seventh Circuit found insufficient evidence of “singular influence” over the decision-maker in applying the “‘cat's paw’ to 21st century federal antidiscrimination law.”

In so holding, the Seventh Circuit found that without sufficient evidence of singular influence, any evidence of a discriminatory animus by the non-decisionmaker should not have been introduced. Relying on past precedent, the court found that although the decisionmaker’s investigation into the non-decisionmaker’s claims was “wholly robust,” “it was enough that the decisionmaker ‘is not wholly dependent on a single source of information’ and ‘conducts her own investigation into the facts relevant to the decision.’”

What becomes problematic is not applying this framework, but understanding what factual circumstances are sufficient to pass this evidentiary threshold. In Staub, the decisionmaker reviewed earlier disciplinary write-ups, written by the non-decisionmaker, and relied on past remarks she claimed she overheard that Staub was a problematic employee. The decisionmaker failed to interview any of these other employees, however. The Seventh Circuit stated the decisionmaker must have a “blind reliance.” As the facts summarized by the Seventh Circuit indicate little otherwise than blind reliance, and thus singular influence over the decisionmaker, the Seventh Circuit has created a high threshold in applying the cat’s paw theory. The Supreme Court is set to review this decision during the term beginning in October.

Further information can be found here.

A complaint has recently been filed in federal court alleging that a major New York law firm violated federal labor laws when the firm failed to properly compensate him for overtime work. The plaintiff asserts that while working as a temporary employee at the firm, he regularly worked 50 hours a week and was not compensated in accordance with the Fair Labor Standards Act (the “Act”). The Act mandates that employers compensate all covered employees, generally those paid at an hourly rate, for overtime work at a rate equivalent to at least one and one-half times their regular rates of pay.

The plaintiff believes the firm is improperly compensating employees and seeks to bring a class action along with those similarly situated. The attorney for the plaintiff commented that many employees are hesitant to bring similar suits because they fear being blacklisted. He hopes that this suit inspires other employees to demand the overtime pay they have earned.

More information cab be found here.

For more information on the Fair Labor Standards Act and Federal overtime pay guidelines see http://www.dol.gov/dol/topic/wages/overtimepay.htm

In 2008, the Genetic Information Nondiscrimination Act (“GINA”) was passed, with the stated goal of “prohibit[ing] discrimination on the basis of genetic information with respect to health insurance and employment.” Section 203(a) of GINA makes it unlawful for employers “to fail or refuse to refer for employment . . . because of genetic information with respect to the individual,” “limit, segregate, or classify [those] individuals,” or “discriminate against [those] individuals.”

Title II, Section 202(b) makes it unlawful for an employer to request, require, or purchase genetic information with respect to an employee or family member of the employee. One such exception to this acquisition is “where an employment agency purchases documents that are commercially and publicly available . . . that include family medical history.”

The language of 202(b) makes it apparent that employers may not peruse an employee’s social network home page to acquire genetic information, even inadvertently. Central to this belief is the language of 202(b), specifically the terms “employment agency,” and “publicly available.” An “employment agency,” as referenced by GINA to Title VII, is “any person regularly undertaking...to procure employees to employers.” Thus, 202(b) apparently applies only to hiring and staffing agencies, with no room to allow employers the opportunity to purchase even publicly available documents. “Publicly available,” however, is not defined within GINA. A social website, arguably, is not a publicly available, depending on the particular options of the site in question. Facebook, for instance, requires users to pass friend requests and allows individual users to modify their page such that information is not readily available to certain individuals or groups of individuals. An individual who chooses to use Facebook may arguably choose to use it for those non-public features, and as such, intends the information housed on that site to be private. As such, it appears employers, and even employment agencies, unlawfully acquire genetic information under GINA when they find it on an employees social networking homepage.

For the Text of GINA, see: http://www.eeoc.gov/laws/statutes/gina.cfm

An employee ranked in the top third to fifth percentile in his annual review and eventually rose to become Administration Vice-President in a state governmental agency. After being demoted in 2000 and 2003 and being replaced by someone younger, Gross alleged that he had fallen victim to age discrimination. However, the Supreme Court ruled that if factors other than age were involved, the employee has to prove that age was the determining factor in an alleged act discrimination. If age was not found to be a determining factor, the employee will have no such right to sue.

Congress is now attempting to undo the ruling by amending the Age Discrimination in Employment Act through H.R. 3721 - Protecting Older Workers Against Discrimination Act. This bill would apply a lower standard or proof and authorize the “mixed motive” cases, (instances that do not involve age as a determining factor) in Title VII of the Civil Rights Act with regard to age discrimination in the workplace.

The Civil Rights Act also protects individuals from employment discrimination the basis of race, color, national origin, sex or religion. If the bill is passed, the burden of proof will be shifted from the employee to the employer, and it would be the second time Congress responded to a Supreme Court decision related to employer discrimination in the last two years. The first was the Lilly Ledbetter Fair Pay Act of 2009, affecting equal pay lawsuits based on sex.

Increasing unemployment has resulted in more and more seniors struggling to make ends meet. Poverty amongst the elderly is due in part to the rising number of layoffs during the recent economic downturn. Age discrimination cases have been on the rise as well.

Poverty amongst the elderly is a significant problem in the United States today. The AARP reported that nearly 10% of adults aged 65 and older live in poverty. Additionally, nearly 4 million older Americans do not have enough money to pay for their basic needs.

The elderly poverty problem has been compounded by the fact that many seniors are unaware of benefits available to them. Many programs exist which offer assistance for food, rent, and utility bills. Greater outreach will help struggling seniors take advantage of these needed services.

Age discrimination is one of the most prevalent forms of discrimination in today’s workforce. As the recession drags on, older workers are the most at-risk demographic for being laid off or fired. Companies across America are viciously and unlawfully forcing out older, more experienced workers and replacing them with younger, less experienced workers.

The AARP reported that from 2001 to 2009 the number of unemployed workers age 55 and older shockingly increased by 331%. The Equal Employment Opportunity Commission (“EEOC”) stated that the number of age discrimination charges have jumped by 29% since 2007. The EEOC also reported that an astounding 60% of people age 45 - 74 have experienced or observed age discrimination in the workforce.

With these statistics, it’s undeniable that age discrimination is the most rampant form of discrimination in today’s workforce, and as the recession wreaks havoc on our economy, these statistics will likely increase.

The over $250 million award to the victims of gender discrimination in the case against Novartis has brought national attention to the multiple types of gender bias in the workplace. The plaintiffs were subject to discrimination based on their gender, pregnancy and motherhood. Cases such as this and the class action against Walmart have shed new light on the prevalence of wage gaps in American companies, many of which have received praise for being great places for women to work.

Many law firms and other organizations have already noticed a rise in complaints from women who are ready to speak out about unequal pay and discriminatory treatment in the workplace. Additionally, lawyers are more willing to take on cases based in family responsibility and motherhood discrimination with these new precedents.

The complete article can be found here.

In a landmark case in March, 2008, The New York Supreme Court held that Geneva Corporation could successfully pierce the corporate veil of American Lending Services, LLC and decided that Mr. Williams of ALS was liable. The two corporations entered into a consulting agreement when ALS approached Geneva to secure funding for a $60-70 million Casino Project to build a new water park and casino. Geneva brought seven causes of action against ALS including breach of contact, promissory estoppel, unjust enrichment, and fraudulent inducement. The most serious allegation made by Geneva was that Mr. Williams’s failed to place $100,00 in an escrow fund. Geneva prevails in piercing the corporate veil proving that ALS exercised "complete domination" in respect to the entire transaction. Piercing the corporate veil is a unique and extreme remedy that is rarely granted by the Courts.

In a New York Times editorial, on February 22, 2010, the discussion centered on the upcoming case to be heard by the United States Supreme Court. Increasingly, strong and meritorious employment discrimination claims are being dismissed on technicalities. For instance, not filing with the EEOC, in some jurisdictions, within 300 days. The issue in the case at hand involves firefighters challenge of the decision to divide them into groups of "qualified" and "not qualified" for the purposes of a promotion exam. However, on appeal, the firefighters lost for failure to file within the 300 day window.

Hopefully, the Court can correct this decision. Yet, the Court is not the only means. Previously, in a similar situation, Congress intervened and passed legislation, the Lily Ledbetter Act, which legislatively corrected a prior decision by The Supreme Court.

Recently, a suit was filed in Federal Court for the Southern District of New York in which a dancer at a strip club claims that its management regularly withheld wages and tips from the performer. The claim likely centers on the fact that the club did not comply with the applicable wage and hour laws governing the employee and employer relationship.

There has been a surge in claims being brought forth regarding issues with wage and hour law compliance. This is likely due to employees becoming more aware of their rights and protections under the law.

Bridgewater Interiors, a Detroit based company specializing in the production of seating and interior systems for major automakers in North America, settled a race discrimination case on October 27th, 2009. The lawsuit was filed by the Equal Employment Opportunity Commission (EEOC) on behalf of Michael Christopher, an African American who worked on the assembly line of the auto parts supplier. Bridgewater subjected Christopher to racial discrimination by failing to promote him based on his race.

Under the settlement, Bridgewater has agreed to pay Christopher a financial settlement and conduct annual training of its managers and supervisors on the issue of racial discrimination. The EEOC was pleased with the steps taken by Bridgewater to resolve the situation and confident in Bridgewater’s future adherence to Title VII of the Civil Rights Act of 1964, making it illegal to deny an employee a promotion based on race.

A former employer who gives a former employee a negative job reference in retaliation for the employee's complaint of discrimination may be liable under the human rights law.

In Jute v. Hamilton Sunstrand Corp., 420 F .3d 166, 178-79 (2d Cir. 2005), the plaintiff was on the verge of obtaining a new job. Before she was offered the job, however, her former employer told the new job that he could not give a reference because Jute "had a lawsuit pending," even though the plaintiff did not actually have a lawsuit pending. The Second Circuit, the federal appeals court in New York, held that this false statement could "negatively affect Jute's chances of securing employment" and denied the defendant's motion to dismiss the case.

Other courts since that time have also confirmed that individuals may assert a claim against former employers who, in an effort to retaliate against the employee's claim, give a negative reference. For example, in Brescia V. Sia, 2008 WL 1944010, at *4 n.3 (S.D.N.Y. Apr. 30, 2008), the court rejected the defendant's effort to dismiss the plaintiff's case under similar circumstances, finding that even where the negative reference is "factually accurate," an individual may have a claim.

The United States Court of Appeals, Second Circuit, in New York, affirmed the district court’s decision to grant summary judgment for the Defendant, The City University of New York, in an employment discrimination case brought by Plaintiff, Marie Chery.

Chery interviewed for an adjunct lecturer position with the University and claims that she was not hired due to her race and national origin. The University defended its decision not to hire Chery by arguing that other candidates had superior qualifications, including speaking multiple languages and familiarity with the student body.

The Second Circuit reasoned that Chery failed to provide any evidence to show that CUNY discriminated against her, and thus, Chery was not able to fulfill her burden of proving that the adverse employment actions were discriminatory.

Victims of age discrimination will have a lower burden of proof on their age-discrimination claims under legislation issued today by congressional Democrats.

The bill calls for employers to bear the burden of proof by showing they complied with federal age-discrimination laws. In June, the U.S. Supreme Court decided that employees were required to prove that age was the deciding reason for termination and not one of several reasons such as salary cut backs.

The bill was introduced as increasing unemployment has been accompanied by a rise in the number of age discrimination claims filed throughout the country. According to the Equal Opportunity Employment Commission, about 25,000 age-discrimination claims were filed in 2008, a 30 percent increase from 2007.

The bill would overturn the U.S. Supreme Court’s decision in Gross v. FBL Financial and make it easier for older workers to show they have been victims of age discrimination.

The Equal Employment Opportunity Commission (EEOC), which has tracked the number of retaliation claims since 1992, has reported that claims including a retaliation charge rose 23% this past year. The reasons for such a surge in litigation differ according to the EEOC and the management-defending law firms that challenge them in court.
Some law firms are blaming the current poor economy for the rise in lawsuits, saying that many complaints come from laid off workers. Others point to a recent 2006 Supreme Court decision that broadened the definition of retaliation in this context, often making retaliation easier to prove than discrimination by an employer. Some management-side law firms cite increases from 21% in retaliation claims this past fiscal year, and some say that 70% of discrimination suits handled by their firm include a retaliation claim.
The EEOC is focusing on retaliation-based complaints as their top priority. Carolyn Wheeler, an EEOC assistant general counsel says enforcement of anti-discrimination law “depends totally on people coming to file complaints. If people don’t feel free to do that , these laws don’t get enforced.”

In the case of Roby v. McKesson HBOC, an employee suffered from a panic disorder which caused a number of unmistakable side effects. After lengthy employment, she was terminated for taking too many days off. She alleged her supervisor treated her poorly and even recommended that she take more showers. A lawsuit was brought based on wrongful termination and the jury awarded $4 million in compensatory damages, including $600,000 against the supervisor and $500,000 against the employer for the harassment, and more than $15 million in punitive damages. Since there was no evidence to support it, a Court of Appeals vacated the harassment award and lowered the punitive damage award to $2 million.

Some states distinguish between discrimination and harassment and the issue of whether the same evidence can overlap to prove both charges has come up in courts across the country. The plaintiff’s attorney in the case at hand advocated that an examination of all the circumstances in a case is necessary rather than a broad categorization of evidence of either discrimination or harassment. In some instances, the same evidence clearly proves both charges and categorizing it as discrimination or harassment would be wrong. The attorney representing the business in this case is seeking to maintain the status quo; prohibiting the overlap of evidence to prove both charges. The attorney maintains that allowing the evidence will result in lowering the bar, making it easier to obtain judgements for harassment. A judgement is expected in the coming weeks.

According to a report released by the U.S. Equal Employment Opportunity Commission there was a small increase in the number of employment discrimination claims filed against the federal government in 2008. The claims filed against the government involved discrimination based on, but not limited to race, sex, religion, age and disability. Claims were filed against every government agency with the vast majority of claims being settled through counseling and alternative dispute resolution. There was a 2.4% increase in discrimination claims filed against the government.

The federal government was the country’s largest employer in 2008 with approximately 2.7 million employees across the country and all around the world. The Equal Employment Opportunity Commission reported that the government’s workforce has become more representative of a diverse society. However, the report also noted a continuing decline in the number of federal employees with disabilities.

In Hoffman v. Parade Publications, an age discrimination case, the Appellate Division, First Division, held that New York courts have subject matter jurisdiction over some employment discrimination cases where the employee worked outside of New York City.

Howard Hoffman was a 62 year old employee of Parade Publications, which was headquartered in New York City. Hoffman, however, worked out of an office in Atlanta, Georgia. At the beginning of 2008, Parade Publications decided to close its Atlanta office and terminated Hoffman’s employment. Claiming age discrimination, Hoffman brought claims under the New York State Human Rights Law and the New York City Human Rights Law. The trial court granted the employer’s motion to dismiss for lack of subject matter jurisdiction, relying on a 2005 First Division decision, Shah v. Wilco Systems, Inc. In that case, the court relied on an “impact” rule, which requires that the impact of the discrimination must be felt inside New York. In what the Hoffman court described as dicta, the court also suggested that this impact rule is not satisfied if only the employment decision is made in New York.

The Hoffman court, however, distinguished Shah, pointing out that in the earlier case there was no evidence that any relevant events occurred in New York. Hoffman, however, alleged that the decision to terminate him was made in New York City. As such, the court ruled that the New York courts had jurisdiction over Hoffman’s claims, holding that the employment decision alone is sufficient to establish subject matter jurisdiction under the impact test.

More broadly, this case will likely expand the reach of the New York Human Rights Laws. If an employee can show that an employer’s discriminatory employment decision is made within city or state, the employee may bring a claim the New York Human Rights Laws, even if the employee worked outside the city and state.

Sen. Frank R. Lautenberg (D-NJ) joined with a bipartisan coalition of 38 Senators in introducing the Employment Non-Discrimination Act to prohibit employment discrimination based on sexual orientation or gender identity.

The Employment Non-Discrimination Act would bring equality to the workplace and finally provide basic legal protections, regardless of sexual orientation or gender identity. The Act would prohibit employers, employment agencies, labor organizations and joint labor-management committees from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity. Such protections are already in place prohibiting discrimination based on race, religion, gender, national origin, age, and disability.

Governor David Patterson recently signed into law new legislation amending the New York State Human Rights Law to include protection against employment discrimination for victims of domestic violence. The law, which mirrors a similar provision that New York City created in 2001, prohibits employers from discriminating against employees in compensation or other terms of their employment, or from refusing to hire or terminating someone because they are a victim of domestic violence

For purposes of the new law, a domestic violence victim is classified as someone who has been victim to a family offense under section 812(1) of the Family Court Act. This includes harassment, stalking, menacing, criminal mischief and disorderly conduct .

The law aims to prevent employment discrimination from occurring against victims of domestic violence who often need time off of work to go to court and to meet with police, attorneys or counselors. Additionally, victims of domestic violence need their jobs as a way of reaching independence from their abuser.

The amendment to the law adds an individual’s status as a victim of domestic violence to other areas protected from discrimination including age discrimination, racial discrimination, religious discrimination, gender discrimination, national origin discrimination, sexual orientation discrimination or military status discrimination. Complaints about employment discrimination can be brought to the state Division of Human Rights or can be filed directly with the courts.

In United States v. City of New York, Judge Nicholas Garaufis of the Eastern District of New York recently held that the New York City Fire Department’s use of entrance examinations in hiring firefights constituted race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. The court found that black and Latino applicants disproportionately failed the exams and those who passed were placed disproportionately lower on the fire department’s hiring lists as a result of their test scores.

The entrance exam in question was used by the city as part of its application process for firefighters from 1999 to 2007, during which time 5,300 entry-level firefighters were hired. During this period, approximately 3,100 applicants were black and 4,200 were Latino, but the City only hired 184 black and 461 Latino firefighters. This was despite the fact that African-Americans and Latinos together represent more than half of the city’s population. For example, in 2002, 25% of the city’s population was black and 27% were Latino. However, African-Americans and Latinos represented only 2.6% and 3.7% of the city’s firefighters respectively. The proportion of minority firefighters in New York City is much smaller than in other large cities.

Based on these statistics, Judge Garaufis held that the plaintiffs made out a prima facie case of disparate impact discrimination. The court also held that the city failed to present sufficient evidence that the exams were justified by legitimate business considerations because the exams were not sufficiently related to the job of a firefighter.

The recent Supreme Court case, Ricci v. DeStafano presented the reverse situation. In that case, the city of New Haven, Connecticut, set aside the results of a examination based on its fear that use of the test results could result in liability for disparate impact discrimination. The Supreme Court held that New Haven did not have a strong basis in evidence that its exams were not job-related and, therefore, its refusal to honor the test results violated Title VII. Judge Garaufis distinguished Ricci by framing the question at issue as whether the plaintiffs had shown that New York’s exams actually had a disparate impact on African-American and Latinos for positions as entry-level firefighters. According to Judge Garaufis, Ricci did not confront the same question. In addition, the court pointed out that the unlike New York, New Haven took greater steps to ensure that its exams tested the relevant knowledge and skills that would reliably predict which applications would best perform in their jobs.

In light of widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions, the U.S. Equal Employment Opportunity Commission will hold a public hearing Wednesday, July 15, 2009, at 10 a.m. Eastern Time, at 131 M Street, NE, Washington, DC., to discuss age discrimination in employment.

Experts will discuss the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards and the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA). Panelists will suggest potential enforcement and policy solutions. In addition, representatives from recent ADEA cases will discuss their experiences. Finally, the Commission will issue a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims.

In a 5-to-4 decision, the Supreme Court of the United States ruled in favor of the plaintiffs who were suing New Haven, Connecticut in the Ricci v. DeStefano case. A group of seventeen White firefighters and one Hispanic firefighter claimed they were denied the opportunity to be promoted based on their race, after passing the promotional exam only to find that New Haven invalidated the test results because few African American firefighters passed. Although New Haven argued that it acted with the intention of avoiding a potential disparate-impact suit from the minority firefighters who failed to qualify for a promotion, the Supreme Court ruled this act a violation of Title VII of the Civil Rights Act of 1964 intending to prohibit discrimination on the basis of race, color, religion, sex, or national origin. “The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority.

This case proved to be highly anticipated because Judge Sonia Sotomayor, President Obama’s nominee to replace Justice David H. Souter, was among the appellate judges on the panel that allowed a lower court ruling to stand. Particularly affecting public employers who use civil service examinations, the ruling announced by the court applies to all employers and many procedures used to assess candidates, as well as to rank current employees with the intention of promotion. This case will likely make it significantly more difficult for employers to disregard hiring and promotional test results once these tests are administered, even if they negatively impact a specific minority group in the future.

Justice Kennedy expressed that the heightened standard will now require that employers in narrow circumstances will have to demonstrate that the test in question is, in fact, irrelevant to the job at hand and present “a strong basis in evidence” that using these results would lead to a loss in a disparate-impact suit in order to consider ignoring further test results.

http://www.nytimes.com/2009/06/30/us/30scotus.html?_r=1&scp=1&sq=firefighters%20supreme%20court%20case&st=cse

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

Over the past decade, obesity in the United States has been gaining more and more attention. In addition to health concerns, there are legal implications to this growing epidemic. Specifically, the Americans with Disabilities Act (ADA) may provide legal redress for the growing number of individuals for whom obesity has threatened employment. Generally speaking, while it may be difficult for an obese person to prevail on a disability discrimination claim absent a physical reason for the disability, such as a gland problem, it may be easier for an obese person to prevail on a claim of perceived disability discrimination; that an employer made assumptions about his or her capabilities based upon stereotypes associated with weight.

For an individual to prevail under the ADA, he/she must meet one of three requirements: (1) that he/she has a physical or mental impairment that substantially limits a major life activity; (2) that he/she has a record of such an impairment; or (3) that he/she is regarded as having such an impairment. In EEOC v. Watkins Motor Lines, Inc., 18 AD Cases 641 (6th Cir. 2006), the Sixth Circuit Court of Appeals stated that morbid obesity alone does not constitute a physical impairment that an employer could regard as substantially limiting a major life activity. However, the Sixth Circuit stated that obesity resulting from a physiological cause might qualify as a disability. In other words, a plaintiff with a gland problem, hormone imbalance or other physical problem that could trigger obesity, may be able to prevail on a disability claim for obesity.

A plaintiff may be more likely to prevail on a claim under the third prong, that he/she is regarded as disabled by an employer. In Sutton v. United Air Lines, Inc., 527 U.S. 471, the Supreme Court stated two conditions for being perceived as disabled: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities or (2) a covered entity mistakenly believes that an acutal, non-limiting impairment substantially limits one or more major life activities. To prevail, an employee must show that the employer believes that the employee has a substantially limiting impairment that the employee does not actually have, or that the employee has a substantially limiting impairment when, in fact, the employee's impairment does not actually significantly limit him/her. In other words, perceived disability discrimination tends to result from an employer's assumptions about an employee's capabilities based upon a stereotype, and such assumptions are not tolerated under the law.

Age discrimination is a problem that is widely acknowledged to be spreading throughout workplaces all over the country. Its effects can be felt by everyone from bankers to doctors to lawyers to business executives and it also has reared its ugly head in the realm of professional sports.

Former Los Angeles Clippers General Manager, Elgin Baylor, has sued the NBA franchise, the league and the team owner, alleging that he was subject to age discrimination and race discrimination. Baylor, a hall of fame player, had been with the Clippers organization for 22 years and alleges in his lawsuit that he was “grossly underpaid during his tenure with the Clippers.”

Age discrimination has the ability to impact all industries and individuals and, as indicated by recent statistics put out by the EEOC, claims of age discrimination are on the rise. It therefore falls to the lawyers who represent the victims of this despicable form of discrimination to act as “private attorney generals” and police the workplace to eradicate age discrimination once and for all.

Cancer patients and survivors may find that apart from their battle with cancer, they may need to fight to regain or keep their employment. Whether based on an inability to work during treatment or termination due to a discriminatory bias by an employer, persons diagnosed with cancer may have difficulty holding on to employment. In a system where health insurance is linked directly to employment, the loss of a job can significantly impact health care. For persons looking for work when diagnosed with cancer, the situation can be much more difficult.

A recent report by The Journal of the American Medical Association concluded that cancer survivors in the United States and Europe were 37 percent more likely to be unemployed than their healthy counterparts. The perception that cancer patients are disabled and unable to work may play a significant role in that figure.

While the law is not perfect, it does afford protections for cancer patients and survivors. The Americans with Disabilities Act and other similar laws clearly find cancer to be a disability, so that employees with cancer are protected against employment discrimination. Even if a patient is cancer-free, the law protects discrimination against employees based on a history of cancer.

It is abundantly clear that the intensification of job cuts, which has broadened during the past year, has devastated the workplace. One of the direct results of this fact is that lawsuits by employees who have been terminated have markedly increased. With the increase in the number of terminations, employees have carefully considered the circumstances for their termination and a good number have alleged that their terminations were unjustified under the law.

It is evident that the workforce has accepted the fact that, in most cases, employment is “at will.” They recognize that the employer can terminate them for a poor reason, in fact, for no reason at all, other than a reason which would violate their human rights. However, some terminated employees have claimed that when there is a reduction in force, those who should not have been included in the reduction in force find that they are terminated nevertheless. Therefore, they find it difficult to accept the fact that they were properly named among those who must leave. Our experience confirms that, oftentimes, there is an inordinate amount of “older” employees who have been asked to leave and in some of those cases, the “older” terminated party believes that his/her termination was not truly consistent with the purpose of the reduction in force. When that occurs, they frequently question the selection process.

In many instances, we have been faced with statistics provided to us by the terminated employee which, on their face, seem to suggest that it is appropriate to question how the selection process was actually enforced. Clients recognize that the employer has a right to embark upon a reduction in force when business reasons dictate, as painful as that may be. But frequently, when they review the ages of those that are retained and those that are selected to leave, they sometimes find that there is an unfair percentage of “older” employees who have been terminated. It would be appropriate, therefore, in some cases, for employees who have been selected for departure to review carefully the statistics that are provided to the terminated employees. By so doing, they may then be in a reasonable position to question the propriety of the process that was used in establishing who “goes” and who “stays.”

The Worker Adjustment and Retraining Notification Act, also known as the WARN Act, helps protect employees who are affected by a mass layoff or plant closing. It requires employers, under certain circumstances, to provide affected employees with advance notice of such adverse action. Should notice not be provided as required by the WARN Act, the employer is required to pay for the salary of the affected employees for the notice period.

New York State recently passed its own WARN Act and the law went into effect on February 1, 2009. Prior to that date, New York State workers were covered by the Federal WARN Act. New York State’s WARN Act is far more expansive than the Federal act. For example, under the New York State law, employers with 50 or more full-time employees must provide at least 90-days notice to affected employees and representatives of affected employees before ordering a mass layoff, relocation or branch closing. The Federal WARN Act applies to employers with 100 or more employees and requires only 60-days notice and a larger number of affected employees before the notice provisions are triggered. Significantly, New York employers that are covered by the WARN Act that fail to file a WARN notice in the allotted time period will be subject to penalties of up to $500 per day for each violation. In addition, the new law provides the Commissioner of Labor with authority to order relief, including back wages and unpaid medical benefits, for employees who do not receive the required notice.

On February 12, 2009, it was announced that JCPenney will pay $50,000 to settle a race discrimination lawsuit. The Equal Employment Opportunity Commission (the EEOC) brought the suit on behalf of Reinell Singh, an African American employee who worked as a greeter at the company's store in the Staten Island Mall in New York.

"All employees have a right to be judged by their work performance and not their race," the trial lawyer who represented the EEOC in the case said, according to The New York Times. "This consent decree will help make sure that what happened to Ms. Singh does not happen to any other JCPenney employee."

The EEOC had charged that a supervisor referred to Ms. Singh with racial epithets and subsequently fired her for race-related reasons. In addition to the $50,000 in compensatory damages to be paid to Ms. Singh, JCPenney also agreed to a three year consent decree that requires adoption of a non-discrimination policy and procedures for handling complaints of employment discrimination. They will provide anti-discrimination training, post a notice about the EEOC and its lawsuit, provide a memorandum setting forth the requirements of Title VII of the Civil Rights Act of 1964 to all store employees and improve monitoring and reporting of employment discrimination.

Spencer H. Lewis, Director of the EEOC’s New York District Office, made a statement saying, "In spite of advances since Title VII of the Civil Rights Act was enacted 44 years ago, race discrimination still remains one of the most pervasive problems in today’s workplace. Racial slurs must simply not be tolerated, and the EEOC will fight to eradicate any such discrimination from the workplace."

A recent article by Andrew McIllvaine in Human Resource Executive Online entitled, "Layoff Lawsuits," discussed the increase in workplace discrimination claims filed with the Equal Employment Opportunity Commission (EEOC). Apparently, in the last fiscal year, there was a 15% rise in charges filed for a total of 95,402 which was a 26% increase from fiscal 2005. There have been ebbs and flows in the amounts of claims filed over the last several years. In 2001-2002, which was during an economic downturn, the EEOC saw an increase from prior years. However, in 2003, during a period of prosperity, fewer claims were filed.

The article also discusses the implications that employers face in conducting mass layoffs and reductions in force. The author notes that in addition to state and Federal anti-discrimination laws, employers must also take notice of other Federal acts such as the Older Workers Benefit Protection Act (OWBPA) and the Worker Adjustment and Retraining Notification Act (WARN), which also regulate actions employers can take in the workplace. Finally, it is noted that while there are several regulations in place in terms of employee protections, employers should continually be mindful to make their decisions in a fair, legitimate, non-discriminatory manner.

On February 5, 2009, a Texas man filed a gender discrimination lawsuit in Federal court against Hooters of America, Inc. (“Hooters”) after the chain restuarant denied him a job as a server in May 2008. The claim seeks an injunction to stop Hooters from “discriminating against male applicants for the [server] position,” as well as an unspecified amount of money, including emotional and punitive damages.

The claim challenges an 11-year-old agreement, in which Hooters paid $3.75 million in a 2007 employment discrimination class action suit settlement. Although Hooters agreed to create gender-neutral positions such as kitchen staff and bartender positions, the 1997 settlement allowed Hooters to continue to exclusively hire women as servers. The current suit alleges that the adopted policy remains discriminatory, and even though Hooters servers are referred to as “Hooters Girls,” the positions should not be limited to women.

Under Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate on the basis of race, color, religion, sex or national origin. However, if Hooters can prove that it is a bona fide occupational qualification for a server to be female, then it is legally permissible for Hooters to discriminate against males for positions as servers.

The bill that President Obama recently signed into law significantly increases the protections that employees have against discriminatory pay differences. Women who are paid less than their male counterparts, for example, will now have greater opportunities to seek remedies in court.

The Lilly Ledbetter Fair Pay Act of 2009 states that an unlawful employment practice, such as a female being paid less than male co-workers, occurs not only when the discriminatory decision is made, but also “when an individual is affected by application of a discriminatory compensation decision . . .” This means that instead of looking at when the discriminatory decision was made, courts will now look at when the impact of the discriminatory decision occurs.

Accordingly, employees like Lilly Ledbetter, who unknowingly suffered years of discriminatory pay discrepancies based on her gender, will be able to seek relief, regardless of the fact that the discrimination occurred years ago. The courts will now – more appropriately – focus on the discriminatory conduct that is actually occurring.

With the way today’s technology is progressing, it seems like every other employee is given a Blackberry by their employer, enabling the employer to contact their employees after work, on the weekends and during their vacations. Employees find themselves constantly working, even though they are no longer within the walls of their job. They check their Blackberry right when they wake up, while they’re riding the subway and before they go to sleep. This trend has raised the question: Should employees be compensated for checking their Blackberrys outside of work?

Generally, the Fair Labor Standards Act requires employers to pay employees at least the Federal minimum wage for all hours worked and overtime pay for all hours in excess of 40 hours in a workweek. These “non-exempt” employees must be paid for all hours worked. On the other hand, there are certain types of employees, such as managers, who are exempt from this law. The danger of overtime lawsuits against employers from the use of Blackberrys after work will come from non-exempt employees.

A recent battle between ABC-TV and the Writers Guild of America East (“WGAE”) provides a preview of the kinds of problems that may arise regarding the use of Blackberrys. According to CBS The Early Show, several months ago, ABC asked several new writers to sign waivers stating that they will not be compensated for the use of their Blackberrys outside of work. When the WGAE asked the writers not to sign the waiver, ABC took away their Blackberrys. Soonafter, ABC returned the Blackberrys to their employees, agreeing that the writers would be compensated for their use of the Blackberry “beyond routine.” This overtime policy implemented by ABC may set the trend for other companies who are facing this situation and are worried about non-exempted employees starting lawsuits for overtime pay.

This week, The New York Times published an article reporting that on February 5, 2009, President Obama signed an Executive Order to revamp the White House’s office for religious-based and neighborhood programs. The Executive Order will expand the office, which provides government support to religious organizations and charities that provide vital social services to its surrounding neighborhood communities, an initiative launched under the direction of former President George W. Bush.

Obama’s expansion of the office, however, has not settled the ongoing debate over whether these faith-based organizations that receive Federal grants for their social service programs may legally discriminate on the basis of religion, hiring only those individuals whom share their faith.

The former administration held the firm belief that faith-based organizations could indeed hire based on religious belief, a position that elicited fierce debate between religious groups and other interested groups and individuals concerned with keeping church and state separated. There is obvious potential for employment discrimination on the one hand, and religious groups that wanted to preserve their right to use religion as a hiring criterion, have threatened to discontinue their participation in the government program if they are forced to change their policies. However, the current administration has taken the position that the faith-based policy should be reviewed on a case-by-case basis prior to the determination of whether a particular group can receive Federal funds and hire employees based on their religious beliefs.

Joshua DuBois, Director of the new White House Office of Faith-Based and Neighborhood Partnerships, acknowledges the need for case-by-case review due to the lack of clarity in this policy field. However, DuBois leaves the door open for possible recommendations from the administration for legislative action on the issue of the legality of religious-based hiring discrimination upon receipt of Federal funds in the future, in the event that his office consistently comes up with the same findings in its reviews.

According to a recent article published in The New York Times, the rise in layoffs has also coincided with new laws that give employees more legal arguments to draw from in initiating a lawsuit. There also seems to be a sense that President Barack Obama will be more proactive in enforcing employment laws than President Bush’s administration was. He recently signed legislation that overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire Company, Inc.

Both class-action suits and individual claims are being filed with increasing regularity. Terminated employees of Ethan Allen and Dell have filed age discrimination suits, and a veteran has sued Lockheed Martin, alleging that they discriminated against veterans. Some employees are also investigating whether their former employer violated the Worker Adjustment and Retraining Act, or the WARN Act, which requires 60 days notice before laying off employees. WARN Act violation lawsuits have been filed against Lehman Brothers, an airline company and two law firms. New York has similar legislation that provides that companies must give 90 days notice. Lawsuits alleging WARN Act violations do not require that the government investigate a claim first, like many employment discrimination claims require, which could lead to a rapid escalation of WARN Act suits.

On January 30th, 2009, the U.S. Department of Justice (“DOJ”) reached an agreement with the Puerto Rico Police Department (“PRPD”) resolving a claim that the PRPD engaged in unlawful employment discrimination and workplace retaliation based on gender. The complaint, which was filed in March 2008, alleged that the PRPD engaged in discriminatory practices toward Officer Jeannette Carballo Lopez on the basis of her sex. According to the DOJ, the PRPD required Lopez to perform secretarial tasks that were not required of male officers, and the PRPD subjected Lopez to discriminatory remarks. Lopez was told that the Division of Investigation of Stolen Vehicles, which she was working for, was "not for females." Furthermore, the PRPD engaged in retaliation toward Lopez because she opposed employment practices that she reasonably believed to be unlawful, and because she filed a charge with the Equal Employment Opportunity Commission under Title VII. Under the terms of the agreement, the PRPD will pay Lopez $125,000, including attorney’s fees, and will reinstate her to an agent-investigator position.

This case presents most unfortunate circumstances because it involves a government agency engaged in gender discrimination and workplace retaliation. Though just a territory of the United States, Puerto Rico still must answer to the DOJ, and it is troubling that the Puerto Rican Police Department would engage in gender discrimination. As a law enforcement agency, we expect the PRPD to set a positive example in the workplace. Though the case did not go to trial, and thus no form of punitive damages were imposed on the PRPD, it is hopeful that this will deter similar conduct in the future so both men and women can feel comfortable working in an environment free of employment discrimination.

In an earlier blog, we discussed two proposed Federal laws which were intended to address the issue of equal pay for both men and women. As could be expected, management and employee attorneys view the passage of this legislation very differently.

Management attorneys argue that equal pay legislation will result in more litigation. Employee attorneys supporting the passage of the proposed legislation believe it is essential legislation, long overdue.

The bill referred to as the Lilly Ledbetter Fair Pay Act, was designed to address the result of a U.S. Supreme Court decision that made it more difficult to seek equal pay between men and women.

The other bill, The Paycheck Fairness Act, would require an employer to more fully validate the reason for any pay difference. Another purpose of the law would be to prevent employees who reveal pay information from being punished.

All of the above represent significant benefits to employees. This fact is quite important because, we trust, it reflects in some manner, the attitude of Congress. For that reason alone, we wait, watch and will report further as the proposed legislation moves forward.

The U.S. Supreme Court, in Ricci v. DeStefano, will address the question of whether municipalities may decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants, as a result of concerns that certifying the results would lead to charges of racial discrimination.

In a case brought by a group of white firefighters and a Hispanic firefighter in New Haven, CT, the employees argued that they were discriminated against because they were not black. The firefighters believed they would have been promoted for captain and lieutenant positions if the city did not invalidate the test results soon after it had learned that no black candidate scored high enough to be considered for the management positions. When defending its decision, the city argued that it rejected the exam because, if certified, it would create a disparate impact on black candidates and the city would face potential employment discrimination lawsuits.

The federal trial judge upheld the city’s decision and dismissed the case. The United States Court of Appeals for the Second Circuit affirmed the dismissal.

Reverse discrimination cases present highly sensitive issues employers face in an effort to promote diversity in the workplace. Courts may hear more reverse discrimination cases in the future as affirmative action programs become more prevalent.

There are various Federal, New York State and New York City laws that protect employees from religious discrimination on the basis of their religious beliefs. Even if a particular employee’s religious beliefs are not entirely compatible with work hours, workplace practices or certain days of the week, employers MUST work with the employee to try and accommodate him/her.

The reasonable accommodation standard under the framework of a religious discrimination claim is somewhat different from that analysis under a disability claim. An employer has an obligation to reasonably accommodate a "sincerely held" religious belief. The difficulty arises in determining what exactly is or is not "sincerely held."

The reasonable accommodation standard is subject to an employer claiming undue hardship, which means that it would conflict with legitimate business interests.

Religious discrimination in the workplace does not happen openly in front of many witnesses. It does, however, still exist and we must work to put an end to it and to celebrate the concept of religious freedom on which our country was founded.

According to a recent article published in The New York Times, Merrill Lynch paid $1.55 million to settle a lawsuit brought by an analyst who claimed he was terminated because he is an Iranian Muslim. Majid Borumand, a quantitative analyst, claimed that Merrill Lynch discriminated against him on the basis of his religion and national origin when he was terminated and that a less qualified employee was retained and promoted. As an additional obligation under the settlement agreement, Merrill Lynch agreed to improve employee training on employment discrimination.

We are encouraged to report that on Friday, January 9, 2009, the U.S. House of Representatives confirmed its support of the need to broaden the ability of our courts to enforce the laws against gender discrimination. A New York Times article published on January 10, 2009 discussed the two related bills passed by the House.