New York Employment Lawyer Blog

The New York Law Journal reports on June 20, 2008 that the Office of Court Administration and the New York State Trial Lawyers Association have reached an agreement allowing the administrative board of the state to set forth a new set of rules regulating jury selection in trials.

The bill, proposed by Assemblywoman Helene Weinstein, would propose three main changes to the existing regulations on jury selection. First, judges would not be allowed to permit jurors who have a bias, but claim that they will serve in an unbiased manner to be accepted as jurors. The new rules also permit plaintiffs to appeal immediately, even without waiting for the outcome of a trial. Finally, the new rules allow judges to set time limits on the selection of jurors.

While these rules, at first, seem to be in the best interests of all parties concerned, there exists some dissent. New York City Corporation Counsel Michael Cardozo and Judge Ann Pfau are dismayed by the changes, saying that the rules are too time consuming and restrictive. Instead of improving the existing system, Judge Pfau claims, the rules would in fact slow the system down, making it even less appealing to prospective jurors.

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Posted In: Employment Law , Evidence

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The New York Law Journal reports on June 20, 2008 that the former legal representation for two former partners from a failed hedge fund has had their scope of discovery narrowed. The legal counsel is defending a $4 billion suit for fraud and legal malpractice filed by the two partners. This new ruling from an appeals court makes it harder for the law firm to defend itself in the suit.

The plaintiffs are accusing their former legal counsel of authorizing their practice of “late trading.” This advice prompted an investigation from former New York Attorney General Eliot Spitzer which ultimately led to a $36 million penalty for the former hedge fund, a $750,000 fine for each partner, as well as a ban from the industry.

The plaintiffs also claim legal malpractice, asserting that their legal representation pushed to settle on one occasion when the correct course of action was a defense.

The defense states that they have waivers from their clients for all actions taken and, therefore, are relieved of all responsibility.

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Just one day after federal prosecutors agreed to drop criminal charges against a major New York law firm, a June 18 article in the New York Law Journal states that two former partners have filed a pro se law suit against the founder and three other firm partners. The four partners were accused of participating in a scheme which paid millions of dollars in kickbacks over the course of twenty five years to class action plaintiffs.

The plaintiffs’ complaint is based upon their argument that the actions taken broke the fiduciary duty among partners.

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Due to intense pretrial publicity, such as those related to perceived differential treatment based on race, the attorney for one of three NYPD officers prosecuted in the Sean Bell shooting case, found a bench trial more useful than the more conventional trial by jury.

In a recent National Law Journal article, the attorney discussed, what he believed was the key reason for the favorable decision. This was a decision in which a judge acquitted all three officers of all charges largely based on, what the judge believed, was the dubious credibility of the witnesses. As this criminal case demonstrates, the credibility of both parties and witnesses is an essential element for a positive result both in criminal and civil matters.

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

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

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

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It was not easy to read an article that appeared in the New York Times on May 10, 2008, which related to the transmittal of emails circulated to and from email accounts of at least twenty secret service supervisors.

Although the agency’s position is that they deplore racially insensitive jokes and express disappointment that they were transmitted, the fact is they appear to have been sent and the disappointment that we all feel at learning such information is indeed troubling.

The ease with which written documents are transmitted through email has resulted in loose and thoughtless material being transmitted that has no place in rational and thoughtful communication. The abuse has reached proportions so vast that there is hardly any litigation in which among the significant exhibits are emails that either or both of the parties foolishly transmitted. If we could point to one specific area that requires greater thought and unfortunately, in some instances, more detailed supervision, it would be with the freedom with which emails are transmitted. There is hardly a case tried in a court where emails do not have a material and significant effect.

If we can offer a suggestion with respect to the destructive manner in which emails are so readily exchanged it would be to think seriously about what is being written before your message turns around to haunt you.

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Posted In: Employment Discrimination , Evidence , Racial Discrimination

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An article recently appeared in the National Law Journal which discussed the fact that twelve geographic Federal circuits have now decided to permit jurors to pose written questions during a trial to witnesses. It appears however, that although the circuits are permitting this procedure there are reservations that are shared by some of them. In some instances, several of the circuits have actually requested judges to actually advise the jurors that this procedure is permitted. The circuits have actually permitted the matter to be decided through the discretion of the judges.

It is often appeared to us that during the course of a trial it becomes clear that the depth of the jury’s interest becomes evident. It also appears that in such cases the granting of this power to a jury might well be of help in arriving at a more meaningful result. It is a subject that is certainly worth following and for ourselves we look forward to the outcome which can only probably be determined after the practice has been followed for a period of time. We believe that once the practice is used for a reasonable period of time the courts and the attorneys practicing in them will be in a better position to judge the efficacy of this procedure. We look forward with keen interest to the outcome.

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

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

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

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

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Posted In: Age Discrimination , Evidence

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

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

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

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

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The City of New York has agreed to settle a class-action race discrimination lawsuit against its Parks Department. The case involved a claim that the Parks Department had a pattern and practice of paying minorities significantly less than their white counterparts, and creating an environment which was rife with racially charged derogatory remarks. The plaintiffs’ also alleged that complaints would go unanswered and retaliation for making a complaint was the norm.

In this case, according to the 2/27/08 New York Times article by Diane Cardwell, the data showed that over 90% of those Parks Department employees who were earning less that $20,000 per year were either African-American or Hispanic, whereas only 14.2% of those earning between $50,000 and $60,000 were either African-American or Hispanic. This disparity is significant in that it demonstrates a pattern and practice of discriminatory conduct over a period of time.

It is important to note that discrimination need not be proven with a smoking gun, but one form of evidence that a plaintiff may use in a discrimination case is that of statistical evidence, which is apparent in the Parks Department case.

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Posted In: Employment Discrimination , Evidence , Racial Discrimination

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

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

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

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

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

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Posted In: Age Discrimination , Employment Discrimination , Evidence

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

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

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

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

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

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

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

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

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

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

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

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Posted In: Age Discrimination , Employment Discrimination , Evidence

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Our courts have consistently confirmed that they are well aware that acts of discrimination are usually not practiced openly. Instead, it is frequently performed clandestinely, behind closed doors, leaving no open evidence of the discriminatory behavior so that you are without direct proof, or witnesses. It stands to reason that management persons would hardly leave evidence, or pass around memos which even suggest, that they are engaged in discriminatory conduct against another employee because of age, gender, race, disability, or for any reason which could result in a claim of discrimination by an employee.

Courts have adjusted the extent and nature of the proof required in order to establish a viable claim of discrimination, talking into account the fact that there will be no smoking gun. Only as example, victims of discrimination do not require absolute, direct proof of the actual act. Discriminatory conduct may be established by circumstantial evidence. In fact, a woman who is being sexually harassed need not have direct proof that she was groped or touched. She can prove it by her testimony alone or by circumstantial testimony. This was reconfirmed by the court in Thoreson v. Penthouse, 149 Misc. 2d 150 (Sup. Ct. NY Co. 1990), 179 A.D. 2d 29 (1st Dept. 1992), 80 NY 2d 490 (1992), an often cited case in which our office represented the female who complained.

As an example of circumstantial evidence, you might consider, for example, that you are a juror and when you walked into the courthouse in the morning, the sun was shining and the streets were dry. When you left the courthouse at the end of the day, the streets were wet and people were carrying folded umbrellas and rain coats. The court might then tell you that you might then properly find that it was raining sometime during the day when you were in the courtroom, although you yourself did not actually see it rain.

Accordingly, you may find that discrimination occurred based on circumstantial evidence. You do not require direct proof, such as actual witnesses, or written material. Under proper circumstances you might be able to establish your case, based on circumstantial evidence alone. If, therefore, you believe you were discriminated against, but have concerns as to whether you have adequate proof to establish your claim, please feel free to contact our office, or any other employment attorney, for an opportunity to discuss your claim. It may well be that you do have a viable claim, based upon the extent of proof that the law requires. You will never know unless you ask. We can be reached by telephone at 212-889-6565, fax at 212-779-8208 or email at info@schwartzandperry.com,

We hope to share with all our readers, messages that might assist you in better understanding our Human Rights Laws and your rights to seek its protection, as your needs may require.

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On Dec. 3, the U.S. Supreme Court heard oral argument on an age discrimination case, Sprint/United Management Company v. Mendelsohn, No. 06-1221, the so-called “Me Too” case. The central issue in the case is whether a plaintiff employee may properly introduce testimonial evidence of other former employees to prove discriminatory intent of an employer, notwithstanding the fact that these other employees worked under different supervisors than the plaintiff?

In Sprint/United, Ellen Mendelsohn, who was discharged at age 51 by her employer, Sprint, sought to prove that she was terminated on account of her age in violation of the federal Age Discrimination in Employment Act (ADEA) during a company-wide reduction in force (RIF). Mendelsohn attempted to support her allegations by introducing the testimony of five other former employees of age. Sprint moved to exclude the evidence, arguing that any reference to alleged discrimination by any other supervisor other than Mendelsohn’s was irrelevant to the issue of whether Mendelsohn’s termination was motivated by her age. The U.S. District Court for the District of Kansas granted Sprint’s motion to exclude the testimony and the jury later returned a verdict for Sprint. However, on appeal, the U.S. Court of Appeals for the Tenth Circuit found that the lower court erred in excluding the testimony of the employees working under different supervisors. Sprint appealed that decision, and the matter is now before the Supreme Court.

The crux of Sprint's argument before the Supreme Court was that such testimony from other employees should be excluded under the federal rules of evidence. “An employment decision is made by the person who made it...,” Sprint maintained. “If some other person harbors bias, that’s unfortunate -but it’s not probative of claims by a plaintiff who is not affected by it.”

Justice David Souter at one point seemed to agree with Sprint’s argument, and said that such testimonial evidence was very close to being “substantially misleading or prejudicial.”

In contrast, the Court of Appeals had made the following observation: “This case...is not about individual conduct but about a company-wide policy of which all Sprint’s supervisors were allegedly aware.” As such, if the supervisor did not make the allegedly discriminatory decision in a vacuum, and allegedly made it as part of a larger, odious scheme handed down from upper management above, shouldn't the jury be permitted to hear testimony that involved other supervisors’ discriminatory conduct that arguably originates from on high? Such evidence would clearly be probative, even vital, in this scenario.

As the appellate court pointed out, applying a limited "same supervisor" rule in the context of a company-wide RIF would in many cases make it difficult, if not impossible, for a plaintiff to prove a case of discrimination based on circumstantial evidence. To apply the same supervisor rule in these types of cases would, as the appellate court insightfully pointed out, “create an unwanted disparity between those cases where the plaintiff is fortunate enough to have other RIF’d employees in the protected class working for her supervisor, and those cases where the plaintiff is not so fortunate.”

It will be interesting to see what the Supreme Court decides on the issue raised in Sprint/United.

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