New York Employment Lawyer Blog

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

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

More information can be found here.

This past week, after six years of various lawsuits regarding employment discrimination at the hand of Atlanta homebuilder John Wieland Homes and Neighborhoods Inc, the remaining victims of the alleged sex and race discrimination finally received some closure.

The U.S. Equal Employment Opportunity Commission settled with John Wieland Homes for $378,500 and an agreement that the company, within six years, will hire at least ten African Americans and women and place them in management positions. Despite claiming that his company consistently maintains a commitment to equal opportunity and never engaged in any of the alleged discriminatory acts, Wieland is also now forced to implement nondiscriminatory hiring and training practices including targeted recruitment and advertising.

The biggest question now is whether or not the settlement is sufficient enough in deterring such conduct.

Wal-Mart retained a law firm to investigate its liability if a sexual discrimination suit were to be filed against them. When the firm finished, they found that there were vast differences between genders in terms of pay rates and promotions. To remedy this, the firm advised Wal-Mart to immediately create specific goals and openings for those in minority groups as well as for women.

Six years later, seven women filed one of the largest gender discrimination class action suits in history against the retailer. The claim described general discrimination in pay and promotions, just as Wal-Mart had previously been warned. Wal-Mart has denied any discrimination and believes that the suit should not be a class action, but should be tried individually for each plaintiff.

Debrahlee Lorenzana, a former Citibank employee, is suing the company because it allegedly fired Ms. Lorenzana for being "too sexy." Though this may not be a quintessential case of sex discrimination, it epitomizes one of the greater issues in today’s office culture: the tension between one’s business performance and one’s physical attributes that cannot be controlled. An individual can alter the clothes they wear, but when a woman is allegedly fired for wearing professional pencil skirts and non-revealing turtleneck sweaters it may become a question of discriminatory practice.

This case will be heard before an arbitration panel. Citibank claims that the lawsuit is completely without merit and highlights their company’s commitment to diversity. Ms. Lorenzana strongly disagrees.

The recent jury verdict in the gender discrimination suit against Novartis should remind Congress that there is more work to be done to eradicate the unfair treatment of women in employment. The gender disparities in pay at Novartis were hardly unique; nationally, women earn, on average, 78 cents for every dollar earned by men performing substantially the same work.

This case should send a timely message to the Senate of the necessity of their approval of the Paycheck Fairness Act, a measure which would help close the pay gap by, among other things, ensuring that courts require employees to show that wage disparities are job-related rather than sex-based.

The New York Times recently wrote an editorial on the matter which can be found here.

Several days ago, the Novartis gender discrimination class action trial began in the Southern District of New York. It is one of the largest classes of plaintiffs and over 5,500 Novartis employees are included.

Among the allegations the female employees have made is that highly qualified women were passed over for promotions and not compensated equitably compared with their male counterparts. Also, there appear to be claims with respect to the company allegedly dissuading women from having a children and family responsibilities.

Bank of America and Merrill Lynch, as reported in the New York Daily News, have been sued by two female employees for gender discrimination in their employment. The plaintiff's claim that men were favored and received better assignments and larger bonuses. Additionally, there is a retaliation claim as the women claim they were punished after complaining about the treatment they had suffered.

As demonstrated in this claim, the idea of a "glass ceiling" is very real. In many industries, women have been limited in their advancement and held back by a "boys club."

In a gender discrimination lawsuit filed by the Equal Employment Opportunity Commission, it was alleged that Wal-Mart discriminated against females who applied for entry level warehouse positions at its Kentucky distribution center. Hiring officials supposedly told applicants that positions would not be offered to females and that the company mainly hired males between the ages of 18-25. The EEOC now reports that Wal-Mart has agreed to a settlement of $11.7 million for these claims.

In addition to the large monetary settlement, Wal-Mart has agreed to hire females at the Kentucky distribution center, post a notice of non-discrimination at its facilities, train its hiring officials to use validated questions for interviewing warehouse applicants, and file compliance reports with the EEOC. In commenting on the case, acting EEOC Chairman Stuart J. Ishimaru stated, “Let this major settlement serve as a warning: Employers must stop engaging in these outdated and sexist practices, or they will face severe legal consequences.”

The New York office of the Equal Employment Opportunity Commission ("EEOC") has made its determination that a major airline's actions of allowing some employees to take "light duty" assignments and not permitting pregnant employees to do the same is discriminatory as a result of gender.

The plaintiff in the case raised violations of Title VII of the Civil Rights Act as well as the Pregnancy Discrimination Act. The EEOC found that by having a pregnant employee who is capable of working with some limitations and not allowing them to do so, is treating them differently than those who are not pregnant - which is discriminatory.

In the employment setting, pregnant women are often the most vulnerable to discrimination and ultimate termination as many employers view them as less than capable to do their job and have concerns that they will be away from the workplace while giving birth.

A major supermarket chain in the New York area is being charged with discrimination against its female employees. In the case, which is now pending in Federal Court, claims that women were placed in lower-growth positions, such as cashiers, whereas men were given roles such as stock, which had a much better possibility of further advancement with the company.

Gender discrimination manifests itself in many different ways. For instance, this case is an example of a "glass ceiling" which is a point that women cannot advance beyond in the workplace. Additionally, sexual harassment and pregnancy discrimination are types of gender discrimination, as well.

The early part of 2010 has brought some major movement in the fight against discrimination in the workplace. Recently, The U.S. Equal Employment Opportunity Commission ("EEOC") announced a significant, $19 Million dollar settlement against a national restaurant chain in its claims of gender discrimination. The settlement is for $19 million dollars and the restaurant must comply with several mandates of equal opportunity set forth by the EEOC.

The basis of the claim was that women were denied equal opportunities to advance, were impeded by a "glass celiling," were barred from promotion to managerial positions, and were prevented from receiving favorable job assignments.

A former female executive alleges gender discrimination in a lawsuit filed October 26, 2009 in St. Louis. She claims the brewer encourages a “frat-party” and “locker room” atmosphere, which excludes women from informal social networks and pays women less than their male counterparts.

Francine Katz, A-B’s former most senior female ranking executive, alleges that she was given smaller salary and bonuses than other male executives despite repeatedly raising concerns about the disparity to A-B’s board of directors.

When Katz was promoted to the role of Vice President of Communications and Consumer Affairs, she received all the same duties formerly assigned to a male employee who held the role, but she was paid $750,000 per year less than him, according to the lawsuit.

Katz seeks lost wages, uncapped compensatory damages and punitive damages.

Computer manufacturer Dell, Inc. will pay $9.1 million to settle a class action suit based on gender discrimination.

The suit was initiated in 2008 by Jill Hubley, a former employee of Dell’s Human Resources Department, claiming that the Round Rock, Texas computer maker refused to promote her due to her gender. The suit was filed in federal court and when a second employee, Laura Guenther, joined the suit also alleging gender discrimination it was granted class action status.

The suit alleges that Dell, since 2003, had failed to adequately promote women in the same ratio as it had men. It further alleges that women had less access to training, were not compensated similarly to men, were laid off more and given unfavorable job assignments.

Dell admitted no fault in the settlement but agreed to pay $5.6 million to all women employed in certain positions from 2007 - 2008 in order to compensate for the alleged gender discrimination. An additional $3.5 million will be used to raise the salaries of its current female employees.

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.

Recently, Mayor Michael Bloomberg was deposed in a class-action discrimination lawsuit. Bloomberg L.P. is the defendant in a class action suit alleging gender discrimination and bias. Previously, the suit only involved four female employees who were demoted or had their pay cut after announcing their maternity leave. Four women were the subject of a previous EEOC complaint brought in New Jersey, where a similar bias suit was dismissed. However, this action has been brought by the EEOC in the Southern District of New York. In addition, the EEOC identified another 450 women with similar complaints related to their maternity leave.

In the EEOC complaint, the women allege that they were replaced by junior-level male employees when on maternity leave. Also, once they returned from maternity leave, they would not resume previous high-level positions, instead being placed into entry-level jobs. Other managers would exclude these women from management meetings as well as stating “You don’t want to be here” and that these women were “not committed”. This pattern of discrimination was especially worse for women with multiple children, as supervisors would be openly hostile to women with multiple maternity leaves. It is expected that the case will proceed past depositions in the fall.

The Equal Employment Opportunity Commission (“EEOC”) has begun considering much-needed rules to protect the older members of the workforce. In the last year, the EEOC has seen a 29% increase in age discrimination claims, more than any other employment bias claim. In fact, other than retaliation, age discrimination has become the most common claim in employment related cases. This is much more troubling in light of the recent 5-4 Supreme Court decision in Gross v. FBL Financial Services Inc., where they decided that people bringing suit on an age discrimination claim would be burdened with a higher standard of proof than those bringing suit on the basis of racial or sexual discrimination.

The Gross decision requires that the plaintiff bringing an age discrimination claim prove that age was the key factor in a demotion or layoff. This is in contrast to where previously, one bringing an age discrimination claim only needed to prove that age was a factor, and the burden shifted to the employer to prove the existence of a valid reason for the adverse employment action. Coupled with another recent 5-4 Supreme Court decision - where Kentucky’s retirement system was found to be not guilty of age discrimination despite the removal of certain benefits for employees 55 and older - age discrimination claims seem to be under attack. Fortunately, the EEOC and the AARP have now taken the first step towards remedying this problem.

In a recent case, the Utah Supreme Court held that a fired clinic physician could not proceed with an age discrimination suit under the Utah Anti-Discrimination Act (“UADA”) because the clinic from which he was dismissed employed fewer than 15 individuals. Despite the appearance of clear age discrimination as evidenced by the clinic’s president stating he “didn’t know how much longer you older guys wanted to work” and “couldn’t pass up this opportunity to employ a full-time physician,” Utah relied on similar California Supreme Court reasoning in determining that the UADA did not apply to this particular age discrimination case due to the small work force employed by the clinic.

However, many states, including Maryland, Washington, and West Virginia, have decided to interpret their age discrimination and sexual discrimination statutes more broadly. These states have focused on aspects of the law such as Marlyand’s general prohibition of discrimination by any employer or a simple determination that the statute itself creates a clear public policy against any form of discrimination. The Ohio Supreme Court also bypassed the language in their state’s law that only prohibited employment discrimination for employers of four or more persons by finding that the statute did not preempt any public policy based claims of sexual discrimination.

The message here is clear: even if a state statute may attempt limit age discrimination or any other form of employment discrimination to larger employees, state supreme courts have proved willing to overlook these restrictions based on public policy. Furthermore, it seems feasible that, if enough states decide to go down this path, the United States Supreme Court may at some point in time decide that public policy concerns trump the restrictions established by the federal Age Discrimination in Employment Act.

The New York City Human Rights Law, which is Title 8 of the Administrative Code of the City of New York, makes it clear that gender identity is protected under the law, more specifically it is a protected classification under employment discrimination. The purpose of this law is to eliminate employment discrimination based on an individuals “actual or perceived gender.” Under the law “gender” is defined to include: actual or perceived sex; gender identity; self-image; appearance; and, behavior expression, whether or not it is traditionally associated with the legal sex assigned to an individual at birth.

Gender identity is an individual’s perception of whether they are male, female or something else. Gender expression includes external characteristics that are socially defined as being either masculine or feminine. For example, things like, dress, mannerisms, speech patterns, and social interactions.

It is unlawful for an employer, or an employee or agent thereof, to discriminate against any employee based on their actual or perceived gender with regard to recruitment, hiring, firing, promotions, wages, job assignments, training, benefits, and other terms and conditions of employment. Additionally, it is unlawful for an employer, employee or agent thereof, to retaliate against an individual opposed to an unlawful discriminatory practice or made a charge, or because an individual testified, assisted, or participated in an investigation, proceeding or hearing.

A fired manager at Justin Timberlake's New York barbeque establishment, Southern Hospitality, has filed a lurid sexual discrimination suit. This is the second time in six months that Mr. Timberlake’s Upper East Side barbecue joint has been sued by a former employee. Previously, in a federal case filed in November, a busboy claimed Southern Hospitality employees weren't getting their fair share of tips and overtime. In this latest legal battle, aspiring actress Alison McDaniel, claims Timberlake business partners Eytan Sugarman and Ronnie Kaplan are guilty of "vile and discriminatory conduct." McDaniel, who worked at the Second Ave restaurant for a year, was fired after she wrote a memo complaining of the harassment. McDaniel, 29, said her job as manager of Southern Hospitality, became an X-rated nightmare in which she was spit on, pelted with expletives and subjected to porn. In at least one instance, McDaniels asserts, that she was locked in a room and forced to watch pornography with Sugarman, whom made fun of her when she began crying. McDaniel’s has filed suit in Manhattan Supreme Court naming Timberlake and best friend Tracy Ayala as defendants. According to court papers, McDaniel also alleges other female workers endured racist comments, such as a hostess who was fired, whom was nicknamed "that ghetto girl at the door". No claim has been filed with the EEOC.

A federal jury recently awarded a Middle School Teacher on Long Island five million dollars after she was fired for making a complaint of sexual harassment against the school's principal, according to an article in the May 7, 2009 edition of New York Newsday.

The teacher claimed the principal had used sexist language in her presence and after her complaints were made, the principal would bet other staff members whether he would be able to "make her cry." In addition to the award to the teacher, her husband was also awarded $250,000 as compensation for his wife's emotional pain and suffering.

This case illustrates that retaliation in the workplace is often times more severe than the underlying discrimination. Judges and juries regularly believe that organizations should "know better" that once someone complains about discrimination they deserve protection, not retaliation.

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.

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.

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.

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.

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.

According to a report released by the Restaurant Opportunities Center of New York, a workers’ rights advocacy group, occupational segregation and wage inequality are preventing many minorities and women from obtaining the best-paying jobs in New York City’s high-end restaurants. The report defines fine dining restaurants as those that charge at least $40 per guest for a meal.

According to an article in Crain’s New York Business, the Restaurant Opportunities Center of New York conducted a study in which two sets of applicants with similar resumes were applying for the same restaurant positions. One set of applicants were white and the others were minorities. The report found that the white applicants were more likely to receive job interviews, and twice as likely to receive an offer. The study also found that minorities and women earned less than white men.

While the restaurant industry has provided many opportunities for both minorities and women, they are usually offered low-paying positions such as runners, bussers and barbacks and not better-paying jobs, such as maitre’d, manager or bartender. The report is asking legislatures to enact laws requiring restaurants to have better hiring policies and practices and to protect potential and current workers from violations of employment discrimination laws.

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.

In these difficult economic times, many employees in various types of organizations are being terminated as part of reductions in force. What has remained constant, is that at the upper echelons of many top companies on Wall Street and elsewhere, the “Boys Club” remains intact.

Companies are restructuring and downsizing often at the expense of top female executives, in some cases even if the female executives happen to be exceedingly well qualified. Lawsuits against companies for gender discrimination are on the rise because many women feel they are being selected for downsizing not based on productivity or skill set, but because of gender.

While not to say that a struggling economy effects women more than men, it seems as if companies are using the recession as an excuse to perpetuate the “Boys Club” at the top levels of their organization.

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 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.

According to a recent article in the New York Daily News, a female police officer has sued the New York Police Department (NYPD), claiming that she was passed up for a promotion to Sergeant because she had previously complained about gender discrimination within the NYPD, and because her supervisor “didn’t think that women could do the job.” Police Officer Robin Marable also claims that her supervisor said that he could not have two women working together, as they would be more prone to on-the-job injuries than male officers. Marable says that when she initially complained to the NYPD about her treatment, her supervisor filed for an internal investigation of her, alleging that Marable had used an NYPD E-ZPass for personal errands. Marable has successfully sued the NYPD before, and was awarded $16,000 in a gender discrimination suit by the Latino Officers Association in 2004.

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.

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

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

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

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

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

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

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

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.