New York Employment Lawyer Blog

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.

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 Crawford v. Metro. Gov’t of Nashville and Davidson County, a 30 year old female plaintiff brought a retaliation claim under Title VII of the Civil Rights Act claiming that her termination was in retaliation for reporting, in the employer’s internal investigation, that the Employee Relations Director had sexually harassed her. The employer’s proffered legitimate non discriminatory reason for Crawford’s termination was that she embezzled funds.

Title VII’s opposition clause makes it unlawful "for an employer to discriminate against any ... employe[e]" who (1) "has opposed any practice made an unlawful employment practice by this subchapter." However, Title VII does not define the term “oppose.” The Supreme Court, utilizing the plain meaning of “oppose”, held that the statute’s opposition clause also extends protection to an employee that speaks out about discrimination not on their own accord but at the behest of their employer during the course of an internal investigation.

The Court reasoned that the meaning of the term "oppose" goes beyond "active, consistent" behavior in ordinary discourse, to include a person that has taken no action except for the act of disclosing the discrimination. Thus, a person can "oppose" discrimination merely by responding to someone else's questions just as surely as actively complaining of discrimination.

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.

On June 11, 2009 The EEOC (U.S. Equal Opportunity Commission) entered into an agreement with prominent national retailer Dillard’s Inc., in settlement of a lawsuit regarding incidents of sexual harassment in violation of Title IV of the Civil Rights Act. As part of the agreement, Dillards is to pay $11,000 in damages to the victims of sexual harassment as well as reform their workplace policies to comply with Title IV.

While the media typically depicts sexual harassment victims as females, males also fall victim to sexual harassment in the workplace. The Dillard’s case involved male on male sexual harassment at a Dillard’s in Florida. According to the EEOC, the Dillard’s store at the Fashion Square Mall in Orlando permitted a sexually hostile work environment for its employees. The specific incident involved a male supervisor that engaged in verbal as well as physical sexual harassment of two Dillard’s employees, a male sales associate and a male dockworker. The supervisor exposed himself to the employees, sexually propositioned them, and made explicit sexual and derogatory comments to them. While both men complained about the foregoing conduct, Dillard’s took no steps to resolve it.

The suit was originally filed in the U.S. District Court for the Middle District of Florida (Civil Action No. 6:07-cv-1496-PCF-KRS) in September 2007. The terms of the settlement provide that in addition to paying the victims $110,000, the Dillard’s store will provide its staff with booklets describing its anti sexual harassment and retaliation policies, conduct training for all employees on the matter, and train employees that will specifically be responsible for investigating sexual harassment complaints. Furthermore, Dillard’s will submit to monitoring by the EEOC for the next three years, and will post a notice about the resolution of this case.

The EEOC recently stated that employers ought to be more vigilant in ensuring that male employees are not being subjected to working in sexually hostile environments since sexual harassment cases involving male victims have increased sharply over the past decade.

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.

A social work supervisor who was terminated in February of 2005, as a result of nine allegations of sexual harassment being filed against him, ultimately prevailed in a settlement that will allow him to truthfully say on future job applications that he quit and was not fired.

The supervisor, Cesar Bedroni, had worked in San Luis Obispo County, California and was terminated by the county to emphasize that sexual harassment would not be tolerated from county employees. Bedroni appealed his firing and, after hearing testimony from those involved, the Civil Service Commission ultimately suspended him for three months without pay and gave him his job back. This decision pitted the Board of Supervisors against the Civil Service Commission which meant that the county was suing itself. Despite that a Superior Court judge then ruled that the Civil Service Commission had not acted unreasonably in restoring Bedroni’s position, the County again fired Bedroni when he returned to his job.

Bedroni then filed the instant lawsuit alleging that he was retaliated against by the county for successfully challenging his first dismissal.

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.

A former Bay Minnete, Alabama employee, Deanna M. Rider, has brought a sexual harassment and workplace retaliation suit under Title VII of the Equal Pay Act, alleging that Public Works Director Lamar Hadley propositioned her for sex, slapped her on the rear and tried to feel her breasts. The suit also alleges that upon receiving her complaint of the alleged sexually harassing acts, the city fired her from her position.

Among the allegations contained in the complaint were that Hadley called Rider at home, made numerous advances toward her and, on one occasion, asked Rider to take off her panties and show Hadley her private area.

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.

Executive Officer Leanne Siri, the highest ranked civilian woman at Dallas Fire-Rescue, filed a Federal complaint with the U.S. Equal Employment Opportunity Commission and the Texas Workforce Commission on Friday, April 24, 2009. Siri, alleged that she was demoted, losing 30% of her current pay, after complaining of “lewd emails and sexual harassment form higher-ups.”

Dallas City Attorney Thomas Perkins, speaking on behalf of the city and the department, refused to address Siri’s allegations, but did state that the fire department chief, Eddie Burns, has expanded opportunities for women within the fire department, and made it easier to file employment discrimination complaints.

In addition to Siri’s complaint, the fire department also faces two other gender discrimination complaints and a lawsuit.

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.

Cracker Barrel Old Country Stores, Inc. will pay $255,000 in order to settle a sexual harassment lawsuit. As part of the settlement, it will also investigate anonymous sexual harassment claims, conduct more employee training and report instances of sexual harassment claims for three years.

Cracker Barrel was accused of allowing sexual jokes and lewd remarks to be made to seven female employees at one of its locations in Cedar Bluff, TN. The company did not take action when the women complained to managers and the Cracker Barrel complaint line. According to a recent article in The Tennessean, Cracker Barrel decided to settle the sexual harassment suit in order to maintain a good relationship with the U.S. Equal Employment Opportunity Commission (EEOC).

This is not the first time Cracker Barrel was accused of allowing workplace discrimination practices to occur at one of its locations. In 2006, Cracker Barrel paid $2 million in a consent decree to resolve a race discrimination and sexual harassment suit involving 51 employees at three Illinois restaurant locations.

Sexual harassment can include any unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct that creates an offensive or sexually charged work environment for employees of either gender.

In two recent sexual harassment cases in New York, one state and one Federal, the Courts reinforced the broadening of the protection of the New York City Human Rights Law in sexual harassment cases. In Williams v. The New York City Housing Authority, 872 NYS2d 27 (1st Dept. 2009) and Zarkzewska v. The New School, 06 Civ. 5463 (LAK), the Courts addressed The Restoration Act of 2005 amendments to the New York City Human Rights Law, which refer to the Act’s “uniquely broad and remedial purposes.”

In Williams, the Court determined that under the New York City Human Rights Law, a sexual harassment case should not be analyzed under the traditional framework set forth by the Federal courts in determining what is actionable harassment. Further, the Court noted that the classification of conduct as “severe and pervasive” does not apply to claims brought under the New York City Human Rights Law.

In Zarkzewska, the Court ruled that under the New York City Human Rights Law, defendants are not entitled to an affirmative defense that exists under the Federal law.

The decision in Williams is perhaps most significant because now, when analyzing a case of sexual harassment under the New York City Human Rights Law the question is not whether the conduct is severe and pervasive but rather “the primary issue for a trier of fact in harassment cases...is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender.”

The New York City Council, by its enactment of the Restoration act of 2005, has once again established itself as a leader in the preservation of an individual’s human rights in the workplace. The Court’s interpretation of the Restoration Act has sent the clear message that sexual harassment in the workplace of any kind will not be tolerated.

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.”

The Florida Department of Corrections faces a lawsuit from more than 100 female employees alleging sexual harassment from male inmates under the Civil Rights Act, which provides the right for employees to be free from sex discrimination and harassment in the workplace. According to a recent article in The Miami Herald, the complaint, filed in the U.S. District Court in Tallahassee, described “conduct so hostile, notorious and commonplace that it is referred to by prison staff and inmates as ‘gunning.’”

The suit follows a recent jury award of $1.6 million for female workers who faced similar treatment by inmates. Walter McNeil, Secretary of the Florida Department of Corrections, acknowledged that such incidents do occur in the workplace, but assured that steps were being taken to protect female employees. For example, last year, the Florida Department of Corrections changed its rules to make intentional exposure of genitals or masturbating by an inmate result in 60 days in disciplinary confinement and the loss of 90 days of gain time.

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.

Elizabeth Williams, a Major Gifts Officer for Binghamton University athletics, filed a sexual harassment complaint with the Equal Employment Opportunity Commission (EEOC) on March 17, 2009. According to a recent New York Times article, the complaint alleged that there were “egregious acts of sexual misconduct” committed by Jason Siegel, the Senior Associate Athletic Director, and Chris Lewis, the Assistant Athletic Director for Development. Williams claims that Siegel had physically and verbally harassed her since she started working with the university’s athletics department on January 5, 2009.

In one incident, Williams claims that Lewis told her that she needed to entertain a donor at a Binghamton game because he liked “chesty, loudmothed women.” Williams also alleges that one night, at a dinner with major donors, Siegel and Lewis speculated on her bra size, and suggested that she strip for a donor who was going to have a bachelor party. Among other things, Williams said that Siegel had grabbed her breasts, and told her that she was “not hired to have opinions," but rather to "look good and flirt with donors." Williams said that she reported the sexual harassment to the school over a month ago, but nothing has been done, and her role has since been diminished.

Williams claims that she has been removed from her office, had the pass code to her voicemail changed and been stripped of nearly all of her responsibilities. Binghamton’s Athletic Director, Joel Thirer, said that he had “no knowledge and no comment” regarding the complaint. The EEOC has not yet reviewed the complaint.

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.

The Society for Human Resource Management reports that 97% of U.S. companies have a written sexual harassment policy. Researchers at the University of Missouri found, however, that such policies might not be effective in preventing sexual harassment in the workplace. This is because researchers found that individuals’ perceptions of flirting and sexual harassment and their understanding of the terms are not always a “perfect match.”

According to Debbie Dougherty, Associate Professor and Director of Graduate Studies at the University of Missouri Department of Communication, the participants in the study “did not consider that their meaning would be different from others. While participants acknowledge that others may perceive behaviors differently, they seemed to assume that they all used the same definition to determine when someone had crossed the line from harmless flirting into sexual harassment."

The bottom line is that a sexual harassment policy is just not enough. Managers and human resource professionals must continue to provide training and coaching on the subject of sexual harassment in the workplace.

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.

The Vineland Board of Education approved a $125,000 out-of-court settlement to Joni Kane, the district’s public information assistance, who commenced a civil sexual harassment suit in 2006 against district spokesperson John Sbrana and the school system. Kane charged Sbrana and the school with placing her in a hostile work environment where she was sexually harassed, and denied promotions and pay increases.

The suit alleged that one month into Kane’s employment with the communications office in 1997, Kane was subject to sexual advances by Sbrana through emails. In 1998, after avoiding Sbrana’s advances, Kane was told that she would have to work weekends, holidays and evenings without overtime compensation. The suit also named the district for failing to resolve the hostile work environment and abusive work conditions. Kane’s attorney, Marc Weinberg, said the situation had caused Kane “extreme physical and psychological injuries,” warranting compensatory and punitive damages.

The Board of Education split in a 5-3 vote to authorize the payment by the district’s insurance carrier. Objections were made with respect to how the investigation was handled at the outset when allegations of sexual harassment first arose in 2006. Frank Giordano, President of the Board, said that even though there was an interest in letting the matter proceed to give each party equal access to justice, if the district lost in court and Kane was awarded more than $125,000, the remaining balance would have to be paid by taxpayers. However, Superintendent Charles Ottinger explained that the Board’s displeasure with the outcome and their legal representation was not a reflection on the merits of Kane’s case, and further reiterated that any employee who is subject to sexual harassment should bring the matter to the attention of the administration.

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.

Brenda Keys, a former State Attorney’s office employee has been permitted, by the Florida Commission on Human Relations, to file a suit against her former employer on the grounds of workplace retaliation and hostile work environment. However, based on Keys’ allegations, the Commission disallowed the possibility of a sexual harassment suit.

The allegations involve incidents between Keys and former State Attorney Steve Meadows in which Keys alleges that she was demoted and had her bonus halved by Meadows because he learned that she was aiding some of her co-workers in the pursuit of sexual harassment complaints against Meadows. Central to the Commission’s finding was its conclusion that Meadows had no credible evidence with which to refute allegations that Meadows had sex with an employee in his private office. An additional Commission finding that gave weight to the potential hostile work environment claim was that Meadows seemed to prefer his female staff, particularly those female employees who wore revealing clothing.

Meadows unsuccessfully attempted to complain of a bias on the part of the Commission’s review, pointing to an alleged 60 claims from other female employees who contended that the work environment was “professional and positive,” which the Commission allegedly failed to recognize. His request that the review be forwarded to the U.S. Equal Employment Opportunity Commission, in order to obtain a supposed unbiased review, was refused, according to Meadows.

Burger King Corp. settled a sexual harassment lawsuit with the U.S. Equal Employment Opportunity Commission (EEOC) and will pay $85,000 to a North Carolina woman who was harassed by her store manager. The EEOC stated that Kathleen Joyner was sexually harassed by her general manager from December 2007 to March 2008. Ms. Joyner was 18-years-old at the time the alleged harassment took place.

According to the complaint, Ms. Joyner had complained to her assistant managers, but they failed to take any action to resolve the issue. As part of the settlement, Burger King Corp. is required to provide anti-harassment training to all managers and shift coordinators in its Clemmons and Winston-Salem, North Carolina restaurants. Ms. Joyner’s general manager was transferred to the Winston-Salem restaurant. In addition, all Burger King Corp. restaurants are required to review the anti-sexual harassment policies with all newly hired employees.

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.

A nurse from Flushing Hospital was awarded $15 million after a jury found that the hospital had allowed a doctor to abuse female employees for eight years according to a recent New York Daily News article. The nurse stated that “everybody knew it was an atmosphere of dirty jokes in the hallways and at the nursing station, but no one did anything about it.”

A doctor repeatedly made dirty jokes, propositioned and physically harassed female employees. Despite receiving complaints, hospital supervisors did nothing to correct the behavior. Furthermore, the doctor has a history of sexual harassment violations. In 1996, he was charged with having a two-year sexual relationship with an alcoholic patient.

Sexual harassment occurs either when one explicitly or implicitly rejects the improper sexual conduct of another and this rejection affects an individual's employment in ways such as interfering with one's work performance, or in some cases creating an intimidating, hostile or offensive work environment. It is unlawful for an employer to allow supervisors and other coworkers to create or maintain a workplace that may interfere with work because of intimidating, hostile or offensive sexual harassing conduct.

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 published an article on February 24, 2009 regarding a Federal judge in Galveston, TX who was indicted last August on charges of sexual abuse against his case manager and secretary. The case shocked the community and led to courthouse demonstrations. On February 23, 2009 the case ended abruptly with a plea agreement.

Judge Samuel Kent retired from the bench and pleaded guilty to one count of obstruction of justice in Federal court in Houston, averting a trial on five other counts involving sexually inappropriate behavior with employees. The obstruction of justice charge carries a maximum penalty of 20 years in prison, but people who are involved in the case have said that the government is expected to seek a three year sentence.

Judge Kent’s indictment described his advances on his case manager and secretary as particularly lewd, involving groping and forcing the women’s faces into his groin area. The Judge had maintained that his advances were invited and enjoyed, but his admission that they in fact were not, was part of his plea deal. Judge Kent would have been the first district judge to be tried on Federal sexual harassment charges.

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.

This week, the San Francisco Chronicle and Law.com reported that Maya Perez, a transgender woman, filed a sexual harassment and gender discrimination lawsuit against her former employer, Burlington Coat Factory, claiming that while she was a sales associate in their San Francisco store, she had to endure seven years of physical and verbal abuse from her supervisors, colleagues and customers after undergoing sexual reassignment surgery. Perez is one of a handful of transgender people who are litigating such employment discrimination matters.

Perez began working at the San Francisco store in 1996. Perez alleges that after she transitioned from a man to a woman in 2001, fellow co-workers and customers harassed her by pushing and groping her, showing her pornographic magazines and photographs, and calling her names such as “he-she.” The managers and security guards failed to intervene and protect her after they heard and saw the incidents either in person or on the store’s security cameras. The store also prevented her from changing her name tag from “Stevie,” her male name, to “Maya,” her current name. After legally changing her name from “Steven Perez” to “Maya Perez” in 2003, the store forced her to reapply for her position with her new name, even though she had already worked in the store for seven years.

Burlington Coat Factory’s company policy prohibits discrimination based on sex, but it does not make reference to sexual orientation or gender identity as protected classes. After Perez complained to her supervisors and the regional human resource director about the harassment, neither took any steps to investigate the issue, as required by company policy. Perez is seeking punitive damages, emotional distress, back pay and a change in employment policies to ensure that managers and employees are more sensitive toward gender identity matters.

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.

Last week, The New York Times published an article about the United States Supreme Court ruling in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., No 06-1595, to expand the protection of Title VII of The Civil Rights Act of 1964.

Crawford was a case of workplace retaliation brought by a witness in a sexual harassment investigation who was terminated after cooperating with the investigator. The issue before the Supreme Court was whether someone who was not complaining about employment discrimination that they themselves suffered was entitled to be protected from workplace retaliation.

In Crawford, Justice Souter, writing for the majority noted that “[N]othing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative, but not one who reports the same discrimination in the same words when her boss asks a question.”

The Crawford decision is very significant in that it shows a shift in the interpretation of the Federal Anti-Discrimination and Retaliation laws to mirror more closely the New York City Human Rights Law which was amended in 2005 to broaden employees’ protection from workplace retaliation.

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.

The New York City Human Rights law prohibits discrimination based on sexual orientation. This ban includes perceived sexual orientation as well, meaning that an employer may not discriminate against an employee that it simply senses is homosexual. Recently, the Court of Appeals in the United Kingdom found that a man forced to leave his job because of merciless taunting by his colleagues who took him to be a gay, won the right to claim compensation from his employers. In this case, a married man with children alleged that he was tormented by his coworkers because he had attended an all-boys boarding school. His coworkers knew that he was not gay, but taunted him nevertheless because of homophobia and associated stereotypes. In finding that the victim’s claims came within the United Kindom’s regulations, the Court held that the legislature in prohibiting sexual harassment in the workplace could not possibly have intended that a victim be required to declare his sexual orientation in order to establish that harassment was based on sexual orientation.

The U.S. Supreme Court issued a decision on January 26, 2009, which is sure to be the subject of man future blog posts. In Crawford v. Metropolitan Government of Nashville, the plaintiff was a former municipal employee who had been terminated. The company stated that it had fired the employee for “embezzlement.” The employee, however, believed that she was terminated because she participated in an investigation into a sexual harassment complaint asserted by a co-worker. Crawford stated that she was being punished for having confirmed that the complaining employee was actually sexually harassed.

The issue, therefore, was not whether the employee who asserts a claim was protected by workplace retaliation laws – which she would be – but whether an employee who does not herself assert a claim but merely participates in the investigation is also protected.

The Court unanimously agreed that such an employee was protected. Justice Souter wrote that “When an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” The Court recognized, therefore, that just by confirming that sexual harassment occurred, the employee was opposing it.

While this decision has long been the rule in New York, both the district and appellate courts in Crawford had reached the opposite conclusion. We are pleased to see that the U.S. Supreme Court is ensuring that employees who in any way oppose discrimination in the workplace are protected against workplace retaliation.

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.