New York Employment Lawyer Blog

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

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

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

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

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

Further information can be found here.

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.

According to a press release issued by the U.S. Equal Employment Opportunity Commission (EEOC), Skilled Healthcare Group, Inc. and its related affiliates, operators of skilled nursing and assisted living facilities, have settled a suit brought by the EEOC in 2005 against the company alleging national origin discrimination. Skilled Healthcare Group will pay approximately $450,000 as well as provide substantial remedial relief to a class of Hispanic workers employed at its nursing and assisted living homes.

The EEOC filed suit in response to Skilled Healthcare Group’s implementation of an “English-only” rule that was allegedly only enforced against Hispanic employees. In its complaint, the EEOC identified more than 50 Hispanic employees at Skilled Healthcare Group facilities who were subjected to different terms and conditions of employment, harassment, as well as differing standards for promotion and compensation. The suit initially arose out of a charge of employment discrimination by a Spanish speaking janitor who was fired from one of Skilled Healthcare Group’s facilities in California for violating the company’s English-only policy while other employees were permitted to speak their respective native languages without repercussion. The EEOC further alleged that some of these Hispanic works were prohibited from speaking Spanish to Spanish speaking residents and were even disciplined for speaking Spanish on their breaks while in the parking lot. Moreover, the EEOC alleged that the Hispanic workers were promoted less than their non-Hispanic counterparts, paid less and consistently given less desirable work.

As part of the remedial measures being provided by Skilled Healthcare Group, employees will receive annual national origin discrimination training, patients and facility residents will receive education regarding employee’s rights under Title VII of the Civil Rights Act of 1964, the company will designate an Equal Employment Opportunity monitor to more closely supervise any future employment discrimination complaints, and the company will report their employment practices to the EEOC annually.

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 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.

For years, it has been a constant struggle for plaintiffs in New York to recover when claiming discrimination in the workplace. However, a recent decision in the matter of Williams v. New York City Housing Authority should change that. In Williams, the Court interpreted the New York City Human Rights Law, specifically the local Civil Rights Restoration Act of 2005, very broadly, making it easier for discrimination victims in New York City to successfully sue their employers.

Surprisingly, the Court ruled in favor of the defendant in Williams, however, in doing so, the court outlined new standards that employees must meet when making claims of employment discrimination. In the past, to recover on a discrimination claim, an employee had to be a victim of “protracted and pervasive” harassment. Conversely, to recover now, the employee must show that the harassment was little more than “petty slights” and “trivial inconveniences.” In fact, the reason the suit was dismissed in Williams was that the Court found that the alleged discrimination was just that – nothing more than petty slights. However, only in such an instance will the suit be dismissed, and the burden is actually now on the employer to show the harassing conduct alleged was actually petty. So not only did the Court lower the standard that an employee must meet to prove discrimination, but it also took away their burden and shifted it to the employer to prove that the harassment was of no consequence.

Such a decision will likely lead to an increase in employment discrimination suits in New York City. With a more relaxed standard, employees cannot be expected to tolerate any harassing conduct in the workplace, since they know that their employers will have to prove the conduct was petty. It would be a good idea for employers to proactively counsel their employees as to what is acceptable workplace conduct, in order to avoid employment discrimination suits.

For years, companies have been paying female workers less than their male counterparts for the same work. Two women, Lilly Ledbetter and Betty Dukes, are leading the way in the ongoing battle for equal pay for equal work. Their persistence over the last eight years may help to explain a 14% increase from preceding years in sex or gender discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) in 2008.

Lilly Ledbetter filed a complaint with the EEOC in 1999 when she discovered that her male co-workers at Goodyear Tire were being paid substantially more than she was. In May 2007, a Supreme Court majority had ruled that she had no grounds to sue for unfair treatment because of a small technicality in the law; she had failed to file a complaint within 180 days of receiving her first unfair paycheck. Congressional Democrats were outraged at the result and promptly wrote new legislation to close this interpretive loophole. The Lilly Ledbetter Fair Pay Act was signed into law by President Obama in January 2009.

Betty Dukes is still in the midst of an uphill battle for equal pay. After Ms. Dukes complained to her supervisor at Wal-Mart about sex discrimination, she was demoted to cashier and discouraged from applying for managerial positions. In 2000, she and six other women filed the largest class-action sex discrimination suit in American history, Dukes v. Wal-Mart. This case is probably destined to reach the Supreme Court. In the court of public opinion, the women may persevere. The Paycheck Fairness Act, which would substantially strengthen the Equal Pay Act by making class-action suits easier, is now under consideration by Congress.

On occasion, jurors, despite being advised not to do so, have been using outside sources, including the internet, to secure information that should only be provided to them in the courtroom during the actual trial.

We were confronted with just this occurrence when we inadvertently learned that, after the trial had ended, one of the jurors had brought a dictionary into the jury room during their deliberations to determine the meaning of a word that had great significance in the jury’s verdict.

When this came to our attention, we made the appropriate motion and were successful in having the verdict set aside. Thereafter, we were able to negotiate a result fully satisfactory to our client. Surely, however, others may not be as fortunate. An opportunity does not always exist to correct the unfortunate result of a jury disregarding the instructions and directions of the court.

An article in The New York Times on March 18, 2009 commented on this very subject which is now receiving more and more attention. The article outlined a case in which a juror admitted to using the internet to research facts pertaining to the trial. Upon further investigation, the judge was shocked that eight of the jurors had done the same thing. As a result, the judge declared a mistrial.

When there is misconduct by the jury, the cost, the time and the emotional trauma of having to re-try a case will have a dreadful impact on everyone involved. When this occurs because jurors ignore the fact that it is wrong to rely upon any outside sources to reach their verdict, other than testimony and exhibits presented during the actual trial, the harm can be irreversible.

It seems reasonable to suggest that it might be up to the trial lawyer to make certain that the jurors are aware that outside sources are absolutely not to be used to secure information that they can then use to reach their verdict. That purpose is served only by evidence accepted by the court during the actual trial.

We believe we must be vigilant to address possible conduct by a jury in which it should not be engaged. We believe it would prove helpful if we urge the court to strongly caution the jury not to take any such inappropriate action. We believe that in doing so at the start of the trial, and perhaps once or twice during the course of the trial, and then finally during the jury charges, this strong message will be heard and will have a far better chance of being complied with.

Recently, more than 800 workers at nine restaurants were awarded $2.3 million in back wages. The recovery amount was the largest collection in a single case in the New York State Labor Department’s history. The popular Ollie’s Noodle Shops in New York City was one of the restaurant chains named, with some employees owed up to $30,000. According to a recent article in Business Week, the restaurants violated numerous labor laws, including those dealing with minimum wage and overtime.

The New York State Department of Labor plans on conducting worker’s rights seminars at each of the restaurants to explain the rights that workers have under state and Federal laws. This case is the most recent example of the department’s stepped up efforts to crack down on labor law violations in New York.

According to 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.

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.”

In New York, an employee has a legal claim against an employer who induces him or her to accept a job based on fraudulent misrepresentations. Such a claim, known as fraudulent inducement, exists only where the employee can demonstrate that the employer lied about facts that existed at the time of the offer. Promises of things that have yet to occur, or hopes about what will occur, are not actionable.

Recently, in the case of Herzfeld v. JPMorgan Chase Bank, a federal judge in New York City dismissed an employee’s claim of fraudulent inducement where the company promised the employee a “brighter future” and that, “over time,” he would be better compensated at the new job. The court found that these expressions of hope were not “present facts,” meaning that they were not lies that could form the basis of a fraudulent inducement claim.

A recent article in The New York Law Journal discussed that sites such as Facebook and MySpace could potentially lead to employment discrimination cases.

These various social networking sites are chock full of any type of information an employer may use to make a discriminatory employment decision. These sites can easily reveal a person's age, gender, race, religion and sexual orientation. Even photographs of an individual consuming alcohol while not at work, under New York Labor Law 201-d, cannot be used by an employer to affect an employment decision.

These new issues, due to the prevalence of the Internet and other technological innovations, further demonstrate how relevant and ever-evolving the field of employment discrimination law is.

A recent article in The New York Times entitled, "In Bias Test, Shades of Gray," dealt with a study that attempted to measure unconscious racial bias among doctors. While there is much debate over the validity of the study, the findings are quite shocking. The study showed that the doctors who were more “biased” actually treated patients of different races more equally.

The findings show that racial discrimination can be subconscious and oftentimes is perpetuated by people in the same class as their victims. While case law shows that the courts agree that an employment discrimination claim is still valid if the victim is in the same class as the perpetrator, this is the first scientific study aiming to prove that fact.

A recent article in The New York Law Journal noted that the Office of Court Administration and the New York State Trial Lawyers Association have reached an agreement allowing the administrative board of New York 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. Second, the new rules would 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.

The New York Times recently reported on the transmittal of e-mails circulated to and from the e-mail accounts of at least 20 secret service supervisors which included racially insensitive remarks.

The ease with which written statements are transmitted through e-mail has resulted in loose and thoughtless material being transmitted that has no place in rational and thoughtful communication in the workplace. The abuse has reached proportions so vast that there is hardly any litigation in which e-mails are not included as exhibitions. If we could point to one specific area that requires greater thought and, in some instances, more detailed supervision, it would be with the freedom with which e-mails are transmitted. There is hardly a case tried in a court where e-mails do not have a material and significant effect.

An recent article in The National Law Journal discussed the fact that 12 geographic Federal circuits have now decided to permit jurors to pose written questions to witnesses during a trial. 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 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 also appears that, in certain 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 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.

The U.S. 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. Thirty of the 31 terminated employees were over the age of 40, the age at which the protections of the Age Discrimination in Employment Act (ADEA) apply. The employees won after a jury trial, but the judgment was overturned by the U.S. Court of Appeals for the Second Circuit.

The Age Discrimination in Employment Act 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.

Recently, in Ferguson v. Lander, 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, the fact was that his termination was based, at least in part on his age.

Although we are aware that the law clearly permits an employer to engage in a reduction in force. The employer is not protected if it can be determined that the termination was the result of “intentional discrimination under the Age Discrimination in Employment Act.” This case is particularly enlightening because the findings of fact by the Magistrate Judge reflects the mechanism that sometimes occurs in these cases.

In the case of Motorola Credit Corp v. Uzan, the Second Circuit Court of Appeals held that the state law was not violated when a billion dollar punitive damage award was granted by a Federal trial court in a case in which the defendant refused to provide economic information.

The decision in Motorola resulted when the Second Circuit applied three factors under Illinois law in the granting of punitive damages: (1) the nature and enormity of the wrong, (2) the financial status of defendant and (3) the potential liability of defendant.

In order to respond to the second element, namely the financial status of the defendant, the defendant is obligated to provide financial information. When the defendant, through what might be considered reprehensible conduct, failed to provide such information, the court concluded that punitive damages in such an amount were appropriate.

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 a recent article in The New York Times, the data showed that over 90% of Parks Department employees 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 employment discrimination need not be proven with a "smoking gun," but one form of evidence that a plaintiff may use in an employment discrimination case is that of statistical evidence, which is apparent in this case.

The U.S. 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.

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 employment discrimination, whether it is because of age, a disability, gender, race, sexual orientation, a 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.

In Ash v. Tyson Foods, 546 U.S. 454 (2006), the U.S. Supreme Court held that the context of discriminatory remarks 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.”

Our courts have consistently confirmed that they are well aware that acts of employment 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 individuals 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, a disability, gender, race or for any reason which could result in a claim of employment discrimination by an employee.

Courts have adjusted the extent and nature of the proof required in order to establish a viable claim of employment discrimination, talking into account the fact that there will be no smoking gun. Only as example, victims of employment 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 Magazine and Robert Guccione, 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 Schwartz & Perry LLP represented the plaintiff.

On December 3, 2007 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 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 Sprint, sought to prove that she was terminated on account of her age in violation of the Federal Age Discrimination in Employment Act during a company-wide reduction in force (RIF). Mendelsohn attempted to support her allegations by introducing the testimony of five other former employees around the same age. Sprint moved to exclude the evidence, arguing that any reference to alleged age 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, 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 reduction in force would in many cases make it difficult, if not impossible, for a plaintiff to prove a case of employment 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.