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.

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.

“Tavern on the Green” owner, Jennifer LeRoy, is being sued by a former assistant for pregnancy discrimination for firing the assistant days after finding out that the assistant was pregnant.

Jamie Mora, LeRoy’s former assistant, was hired in 2004 to be LeRoy’s personal assistant and to be available to LeRoy twenty-four hours a day, seven days a week. In October 2007, eight days after Mora informed LeRoy of her pregnancy, Mora was laid off without warning. She is seeking an unspecified amount in damages and backpay.

“Tavern on the Green” is currently awaiting word from City Officials as to whether its license to operate will be renewed. The license expires December 31st.

Amidst serious allegations of workplace discrimination by the US Equal Employment Opportunity Commission, the largest garment manufacturer in Saipan, L&T Group of Companies Ltd. has agreed to pay $1.7 million dollars to avoid further litigation . Saipan is the largest island and the capital of the United States Commonwealth of the Northern Mariana Islands in the Pacific Ocean.

L&T has been accused of numerous acts of discrimination against their employees, including but not limited to firing pregnant employees and replacing them with women who are not, as well as singling out company employees that are not Chinese and forcing them to socialize, work, and eat in designated segregated areas.

The claims brought by the EEOC were filed in US District Court for the Northern Mariana Island and will provide injunctive relief to those who have fallen victim to the Defendant’s acts of age, national origin, and pregnancy discrimination.

The University of Phoenix (“UOP”) settled a discrimination claim for $32,500, filed by the EEOC and a former employee of the University, Latrish Elaine Tarhini.

The EEOC and Tarhini filed a discrimination claim against UOP, claiming that UOP had violated the retaliation statute of the Civil Rights Act of 1964. Tarhini an enrollment counselor claimed that UOP management said she would not be in line for a promotion because she had made an earlier pregnancy discrimination claim against UOP and its parent company, Apollo Group Inc.

In the settlement, UOP admitted to no wrongdoing or liability according to a statement provided to the Phoenix Business Journal. However, the EEOC said UOP will be required to provide updates on other possible retaliation claims by its workers.

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.

In Sprint v. Mendelsohn, 466 F. 3d 1223 (10th Cir. 2006), the United States Supreme Court addressed the admissibility of what has commonly been referred to as “me too” evidence, meaning evidence that other employees not supervised by the plaintiff’s manager were also victimized by the same type of employment discrimination. In the Sprint case, the plaintiff was terminated as part of a reduction in force. However, the plaintiff believed that her particular termination was not business related, but rather the result of age discrimination. To support her claim, the plaintiff sought to introduce evidence from five former Sprint employees who claimed that their managers discriminated against them because of their age. None of the five former employees worked in the same department as the plaintiff and none of them worked under the plaintiff’s supervisor. Sprint argued, among other things, that the evidence was not relevant to whether the plaintiff was discriminated against and the trial court agreed, prohibiting the plaintiff from adducing evidence from employees not similarly situated to the plaintiff. On appeal, the Tenth Circuit reversed the trial court’s ruling, holding that the trial court abused its discretion by implementing a per se rule precluding such “me too” evidence. The Tenth Circuit reviewed the plaintiff’s proposed “me too” evidence and found that it was relevant. As a result, the Tenth Circuit reversed the decision and ordered a new trial with instructions to admit the challenged testimony.

Sprint appealed to the U.S. Supreme Court which, affirming the Tenth Circuit’s decision, stated that “[w]e conclude that such [me too] evidence is neither per se admissible nor per se inadmissible.” Because it was not entirely clear that the trial court was applying a per se rule, the Supreme Court remanded the case back to the trial court for a further explanation of its decision. The Court elaborated that the “question [of] whether evidence of discrimination by other supervisors is relevant in an individual Age Discrimination in Employment Act case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.”

Now, a fact-based inquiry must be made on a case-by-case basis regarding “me too” evidence so that a victim of employment discrimination will not be subjected to an absolute rule excluding such evidence as irrelevant. We at Schwartz & Perry LLP believe that the Sprint case represents a victory for employment discrimination plaintiffs who often find their claims difficult to prove because of the lack of direct evidence of employment discrimination.

The U.S. Supreme Court, in AT&T v. Hulteen, is addressing the question of whether several female employees who took maternity leave while working for AT&T in the 1960s and 70s, but did not receive seniority credit for that time, were discriminated against by receiving lesser pensions in the present day. A recent article by the Associated Press, addressed this topic.

The law regarding the treatment by employers of maternity and pregnancy leaves was changed in 1979, but AT&T is arguing that the law does not retroactively apply to actions prior to that date and that the claims should have been brought earlier. Whereas the plaintiffs argue that each time a reduced pension check is paid, a new act of employment discrimination is committed.

In whichever favor the Court rules, it will reflect the ever-evolving nature of employment law as well as further demonstrating the significant attention this field is receiving by the U.S. Supreme Court.

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.

The 3rd Circuit recently handed down a ruling on what may be one of the first cases of abortion discrimination. A three-judge appellate panel revived Doe v. CARS Protection Plus, which had been dismissed by the lower court, and focused on the question of whether abortion is protected by the Pregnancy Discrimination Act (PDA) of 1978. Plaintiff Doe reluctantly had an abortion after being informed that her fetus had severe disabilities which would prevent its survival after birth.

In the decision, the Judges noted that the PDA covers “pregnancy, childbirth, or related medical conditions,” and that abortion qualifies as one such related condition. The decision also emphasized the fact that the plain language of the PDA, the legislative history of the Act and the EEOC guidelines all support their conclusion that an employer may not discriminate against a female employee because she has had an abortion.

As the job market shrinks, pregnant employees may be on the front line of layoffs, according to some employment lawyers. Recent statistics show that pregnancy discrimination claims filed with the EEOC and state agencies have been rising at a rapid pace – up an alarming 14% from last year and 40% from 1998. In New York, pregnancy discrimination claims have doubled in the past decade, including a 10% jump last year.

In the past, struggling employers looking to shrink their workforce could look first at pregnant women or new mothers without fear of repercussion. However, the Pregnancy Discrimination Act of 1978 now prohibits an employer from firing, refusing to hire or denying a promotion to a worker on the basis of pregnancy. This does not translate into special treatment for pregnant workers; instead, it merely removes pregnancy from the realm of factors to be considered in making employment decisions.

Based upon the recent surge of employment discrimination claims, it appears that pregnant women may be even more vulnerable than before in today’s job market.

Last week, The Wall Street Journal reported a recent increase in pregnancy discrimination claims filed by employees with the U.S. Equal Employment Opportunity Commission (EEOC). The WSJ noted a 14% increase in pregnancy filings last year, with a total of 5,587. This figure was up 40% from a decade ago and was the biggest annual increase in 13 years.

These statistics confirm that despite the effort of many companies to create the appearance that they appreciate working mothers, a significant bias against pregnant women persists in the workplace. Employers, in an effort to avoid the perceived hassle of maternity leave and doctor’s visits that will continue even after birth, may find it easier to simply terminate pregnant women, in blatant disregard of the law that protects women against pregnancy discrimination. Discrimination against working mothers, referred to as “gender plus” discrimination, is also prohibited by the relevant human rights laws.

While merely being pregnant does not guarantee an employee’s position, an employer may not take adverse action against a woman if the action is motivated by the pregnancy. Since there will never be a “smoking gun” proving employment discrimination, employees asserting a pregnancy discrimination claim will rely on circumstantial evidence.