New York Employment Lawyer Blog

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.

The New York City Fire Department is being threatened with the imposition of hiring quotas as a remedy for the intentional race and national origin discrimination in their hiring. A Federal Judge in Brooklyn found that two written exams were not job related which had an adverse impact against numerous African-American and Hispanic candidates.

Among the remedial measures to be put in place are immediate emergency hiring of qualified minority candidates and revisions of the exams.

The Equal Employment Opportunity Commission ("E.E.O.C.") has recently announced its settlement of a failure to hire race discrimination claim with one of the nation's largest financial firms.

The E.E.O.C. complaint stated that Barbara Alexander, who is African-American, was amply qualified for the position of financial planning manager, but was not hired, despite performing capably during thirteen in-person interviews. The position ultimately went to a white male. It is significant to note that discrimination may exist in all aspects of the employment relationship, from hiring to promotion to termination.

Bridgewater Interiors, a Detroit based company specializing in the production of seating and interior systems for major automakers in North America, settled a race discrimination case on October 27th, 2009. The lawsuit was filed by the Equal Employment Opportunity Commission (EEOC) on behalf of Michael Christopher, an African American who worked on the assembly line of the auto parts supplier. Bridgewater subjected Christopher to racial discrimination by failing to promote him based on his race.

Under the settlement, Bridgewater has agreed to pay Christopher a financial settlement and conduct annual training of its managers and supervisors on the issue of racial discrimination. The EEOC was pleased with the steps taken by Bridgewater to resolve the situation and confident in Bridgewater’s future adherence to Title VII of the Civil Rights Act of 1964, making it illegal to deny an employee a promotion based on race.

The United States Court of Appeals, Second Circuit, in New York, affirmed the district court’s decision to grant summary judgment for the Defendant, The City University of New York, in an employment discrimination case brought by Plaintiff, Marie Chery.

Chery interviewed for an adjunct lecturer position with the University and claims that she was not hired due to her race and national origin. The University defended its decision not to hire Chery by arguing that other candidates had superior qualifications, including speaking multiple languages and familiarity with the student body.

The Second Circuit reasoned that Chery failed to provide any evidence to show that CUNY discriminated against her, and thus, Chery was not able to fulfill her burden of proving that the adverse employment actions were discriminatory.

In handing down its ruling in Brown v. J. Kaz Inc. d/b/a Craftmatic of Pittsburgh the Third Circuit has joined First, Seventh, and Eleventh Circuits in ruling that an independent contractor can bring an employment discrimination action under §1981 of the Civil Rights Act. In Brown, the plaintiff was treated unfairly because of his race, but his claims were dismissed in the District Court for the Western District of Pennsylvania because he was an independent contractor, instead of a “normal employee.”

The plaintiff also brought claims under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act, but the Circuit Court affirmed the lower court’s ruling that those claims could not be advanced by an independent contractor.

In employment discrimination cases, an employer will typically seek summary judgment against the employee’s claim. By this motion, the employer asks the court to find that, based on the facts presented, no jury could find that discrimination occurred. This is considered “drastic” relief and a court, in reviewing such a motion, must take the facts in the light most favorable to the employee, who is the plaintiff.

The Second Circuit Court of appeals reversed the trial court’s grant of summary judgment in a race discrimination case. In Aulicino v. New York City Dept. of Homeless Services, 2009 WL 2854028 (2d Cir. Sept. 8, 2009), the plaintiff alleged a hostile environment based on race discrimination, including references to him as a “white fuck.” The plaintiff pointed to two different sets of derogatory comments by two different people during two different times, with a period of about three years in between. The lower court granted summary judgment, holding that no jury could find a hostile environment, given the five years of time between the first comment and the last comment.

The appellate court, the Second Circuit, reversed summary judgment, finding that, in order to view the facts in the light most favorable to the plaintiff, the lower court “should have discounted from its analysis, if not altogether disregarded, the intervening period between comments by one supervisor and another.” The court, therefore, addressed not the facts of the case, but the decision-making of the court, noting that even the analysis that a court uses must be favorable to the plaintiff.

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.

In United States v. City of New York, Judge Nicholas Garaufis of the Eastern District of New York recently held that the New York City Fire Department’s use of entrance examinations in hiring firefights constituted race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. The court found that black and Latino applicants disproportionately failed the exams and those who passed were placed disproportionately lower on the fire department’s hiring lists as a result of their test scores.

The entrance exam in question was used by the city as part of its application process for firefighters from 1999 to 2007, during which time 5,300 entry-level firefighters were hired. During this period, approximately 3,100 applicants were black and 4,200 were Latino, but the City only hired 184 black and 461 Latino firefighters. This was despite the fact that African-Americans and Latinos together represent more than half of the city’s population. For example, in 2002, 25% of the city’s population was black and 27% were Latino. However, African-Americans and Latinos represented only 2.6% and 3.7% of the city’s firefighters respectively. The proportion of minority firefighters in New York City is much smaller than in other large cities.

Based on these statistics, Judge Garaufis held that the plaintiffs made out a prima facie case of disparate impact discrimination. The court also held that the city failed to present sufficient evidence that the exams were justified by legitimate business considerations because the exams were not sufficiently related to the job of a firefighter.

The recent Supreme Court case, Ricci v. DeStafano presented the reverse situation. In that case, the city of New Haven, Connecticut, set aside the results of a examination based on its fear that use of the test results could result in liability for disparate impact discrimination. The Supreme Court held that New Haven did not have a strong basis in evidence that its exams were not job-related and, therefore, its refusal to honor the test results violated Title VII. Judge Garaufis distinguished Ricci by framing the question at issue as whether the plaintiffs had shown that New York’s exams actually had a disparate impact on African-American and Latinos for positions as entry-level firefighters. According to Judge Garaufis, Ricci did not confront the same question. In addition, the court pointed out that the unlike New York, New Haven took greater steps to ensure that its exams tested the relevant knowledge and skills that would reliably predict which applications would best perform in their jobs.

In United States v. City of New York, Judge Nicholas Garaufis of the Eastern District of New York recently held that the New York City Fire Department’s use of entrance examinations in hiring firefights constituted race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. The court found that black and Latino applicants disproportionately failed the exams and those who passed were placed disproportionately lower on the fire department’s hiring lists as a result of their test scores.

The entrance exam in question was used by the city as part of its application process for firefighters from 1999 to 2007, during which time 5,300 entry-level firefighters were hired. During this period, approximately 3,100 applicants were black and 4,200 were Latino, but the City only hired 184 black and 461 Latino firefighters. This was despite the fact that African-Americans and Latinos together represent more than half of the city’s population. For example, in 2002, 25% of the city’s population was black and 27% were Latino. However, African-Americans and Latinos represented only 2.6% and 3.7% of the city’s firefighters respectively. The proportion of minority firefighters in New York City is much smaller than in other large cities.

Based on these statistics, Judge Garaufis held that the plaintiffs made out a prima facie case of disparate impact discrimination. The court also held that the city failed to present sufficient evidence that the exams were justified by legitimate business considerations because the exams were not sufficiently related to the job of a firefighter.

The recent Supreme Court case, Ricci v. DeStafano presented the reverse situation. In that case, the city of New Haven, Connecticut, set aside the results of a examination based on its fear that use of the test results could result in liability for disparate impact discrimination. The Supreme Court held that New Haven did not have a strong basis in evidence that its exams were not job-related and, therefore, its refusal to honor the test results violated Title VII. Judge Garaufis distinguished Ricci by framing the question at issue as whether the plaintiffs had shown that New York’s exams actually had a disparate impact on African-American and Latinos for positions as entry-level firefighters. According to Judge Garaufis, Ricci did not confront the same question. In addition, the court pointed out that the unlike New York, New Haven took greater steps to ensure that its exams tested the relevant knowledge and skills that would reliably predict which applications would best perform in their jobs.

In an attempt to end both a 2004 class-action lawsuit and another similar suit filed in 2007, Kodak Co. has finally agreed to pay a $21.4 million settlement to the African-American employees who felt they were unfairly discriminated against because of their race. Plaintiffs involved in this case claimed that they were passed up for promotion opportunities, were not paid the same as their white counterparts, and were subjected to a hostile work environment filled with racist comments.

While the company still refuses to admit their wrongdoing, this agreement will amount to paying a sum of money to 3,021 of their past and current employees. In addition to the money, Kodak will also be held accountable for its ability to promote diversity among supervisors and hire a labor statistician to review the pay and promotion policies. When asked to comment on the recent compromise, Christopher Veronda, Kodak spokesman, said that “[all sides] believe that this settlement represents a resolution of mutual interest.”

Although the settlement was recently granted preliminary approval by a federal judge, a final approval hearing is scheduled in Federal Court in September.

A lawsuit filed in federal court on June 26, 2009 charges the Campbell Soup Company with racial discrimination in that the company routinely promoted less qualified white account executives over its black employees. The class action, filed in Camden, N.J., charges that Campbell Soup Co.’s white managers discriminated in promotions while using a secret method in which job openings were not posted and objective criteria were not used to assess applicants.

The named plaintiff, Chester Hicks, is a fifty-eight year old black man who has worked for Campbell’s in Houston as a territory manager for twenty-four years. The suit alleges that, despite a long history of awards, he has been unable to advance beyond his entry-level job. The class action seeks to represent all black employees holding salaried positions at Campbell’s in the United States after July 7, 2003.

The suit claims that Campbell’s discriminated due to race, as prohibited by Title VII of the Civil Rights Act of 1964 and 42 U.S.C sec, 1981. The suit further alleges that Hicks was denied promotions due to age discrimination in violation of the Age Discrimination in Employment Act (ADEA).

In January 2004, Hicks lodged a complaint with the Equal Employment Opportunity Commission (EEOC). In August 2006, the EEOC determined that there was probable cause that Campbell’s had violated Title VII of the Civil Rights Act of 1964 by failing to promote Hicks due to racial discrimination. The EEOC failed to mediate the matter and issued a right-to-sue letter on April 2, 2009, which gave Hicks 90 days to file suit.

A three-judge panel of the Louisiana 1st Circuit Court of Appeals has decided not to grant former University of Louisiana-Lafayette football coach Jerry Baldwin the $2 million verdict he was previously awarded by District Court Judge Don Johnson of Baton Rouge.

Baldwin initially brought suit against his former employer, UL-Lafayette, claiming he was fired from his job as head coach on account of racial discrimination. Baldwin is African American.

In their most recent opinion, the 1st Circuit explicitly cited problems with the lower court’s handling of jury selection as the main reason for dismissing Baldwin’s awarded damages. Specifically, the Circuit Court pointed to District Judge Johnson’s refusal to entertain the Defendant University’s request to dismiss a black juror, who claimed that she had once been the victim of racial discrimination by her white supervisor. The Defendant University’s attorneys attempted to exclude the specific juror, fearing her experiences might unfairly form a bias in favor of Baldwin. The District Judge disagreed, choosing instead to side with the Plaintiffs, who accused the Defendant of attempting to unlawfully exclude the juror purely on racial grounds.

The Circuit Court held that the decision to retain the juror may have had an unfair effect on the ultimate verdict, and decided Baldwin is currently not entitled to his monetary award. Baldwin’s attorneys will attempt to have the Appeals Court reconsider its ruling, and if unsuccessful, may decide to take the case back to trial.

In a 5-to-4 decision, the Supreme Court of the United States ruled in favor of the plaintiffs who were suing New Haven, Connecticut in the Ricci v. DeStefano case. A group of seventeen White firefighters and one Hispanic firefighter claimed they were denied the opportunity to be promoted based on their race, after passing the promotional exam only to find that New Haven invalidated the test results because few African American firefighters passed. Although New Haven argued that it acted with the intention of avoiding a potential disparate-impact suit from the minority firefighters who failed to qualify for a promotion, the Supreme Court ruled this act a violation of Title VII of the Civil Rights Act of 1964 intending to prohibit discrimination on the basis of race, color, religion, sex, or national origin. “The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority.

This case proved to be highly anticipated because Judge Sonia Sotomayor, President Obama’s nominee to replace Justice David H. Souter, was among the appellate judges on the panel that allowed a lower court ruling to stand. Particularly affecting public employers who use civil service examinations, the ruling announced by the court applies to all employers and many procedures used to assess candidates, as well as to rank current employees with the intention of promotion. This case will likely make it significantly more difficult for employers to disregard hiring and promotional test results once these tests are administered, even if they negatively impact a specific minority group in the future.

Justice Kennedy expressed that the heightened standard will now require that employers in narrow circumstances will have to demonstrate that the test in question is, in fact, irrelevant to the job at hand and present “a strong basis in evidence” that using these results would lead to a loss in a disparate-impact suit in order to consider ignoring further test results.

http://www.nytimes.com/2009/06/30/us/30scotus.html?_r=1&scp=1&sq=firefighters%20supreme%20court%20case&st=cse

The Supreme Court ruled in favor of white New Haven firefighters who claimed they were the victims of reverse employment discrimination. The court held that employers do still have an obligation under the civil rights laws to avoid discrimination in hiring, promoting, and compensating workers based on race, and that the firefighters were unfairly denied promotions because of their race. The majority of the court found that the fire department was wrong to throw out the results of a promotion exam because no African Americans were found likely to be promoted on the basis of the exam.

However, this ruling is surrounded by controversy. It was argued that this new ruling leads to confusing results and makes it difficult for employers to determine whether or not they are complying with the civil rights laws. As justification for their ruling Justice Anthony Kennedy stated that “fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” and the firefighters’ attorney furthered that “individual achievement should not take a back seat to race or ethnicity.”

In her dissent, Justice Ruth Bader Ginsberg said that while the court does have “sympathy” for the white firefighters, they have “no vested right to promotion, nor have other persons received promotions in preference to them.” Ginsberg, in addition to the other dissenters, believe that this new holding “will not have staying power.”

Recently in New York State, a woman sued a school district saying she was fired from her position as the school principal because the parents wanted a black principal running their child’s school. The woman, Barbara Pleener charged race discrimination in that parents had insisted the board of education find a black person to run the school their children attended.

In this case, Pleener v. New York City Board of Education, the court said that it is not okay for an employer to discriminate against a person on the basis of race even if they claim it is for a client's happiness. Pleener cited race as a reason for her termination as she was replaced by a black principal. However, Pleener lost her case because the district proved her firing was based on the fact that parents had become outraged when she fired someone with a record of insubordination less severe than her own record.

A federal judge in Newark, N.J., has construed the Lilly Ledbetter Fair Pay Act as
extending workers' time to sue only for claims based on pay bias. Michael Richards, a
48-year-old man of Asian descent alleged that he received unjustified low ratings in his job on
account of his race and age and in retaliation for his complaints about unfair treatment.

U.S. District Judge Katharine Sweeney Hayden wrote in Richards v. Johnson & Johnson,
"While the Act certainly contains expansive language ... it ... does not save otherwise untimely claims outside the discriminatory compensation context." However, while the act "does not save untimely discrimination claims outside the compensation context, the statute explicitly affirms the evidentiary principle ... that Title VII and the ADEA do not bar an employee from using time-barred acts as background evidence in support of other timely claims," she wrote.

Under the ruling, the plaintiff is still allowed to pursue his race and age discrimination
claims under Title VII, the Age Discrimination in Employment Act and the New Jersey Law
Against Discrimination.

Melody Morales, a woman suing the Hawaiian Tropic Zone in New York for alleged racial discrimination, was accused of being a prostitute by defense counsel. After pictures surfaced on the internet of Ms. Morales on various websites, defense attorneys brought the matter to the attention of the presiding judge in an attempt to have the case dismissed.

Ms. Morales’ attorneys maintain that their client has never been involved in prostitution, and that the photos in question must have been lifted from her Myspace page and posted on other websites without her knowledge or consent.

Ms. Morales is suing the Hawaiin Tropic Zone for racial discrimination, alleging that they did not hire her for a position with the company due to her Latin accent.

In what may become a landmark case in employment discrimination law the Supreme Court is set to rule on the case of Ricci v. DeStefano by the end of this month. Making the case even more intriguing is that Supreme Court nominee Sonia Sotomayor, was on the three-judge panel that rejected the claim of three white police officers who argued that they were victims of racial discrimination when they were denied promotion.

Ricci deals with two provisions of the Civil Rights Act, which in essence contradict each other. One part of the Act states that no employee may be discriminated against because of his or her race, sex, religion or national origin. Another part of the Act exposes an employer to liable for using a hiring or promotional standard that has a “disparate impact on the basis of race,” unless it can be defended as a “business necessity.” During oral arguments, Justice Souter, whom Sotomayer is nominated to replace, commented that these two provisions put the employer in a “damned-if-you-do, damned-if-you-don’t situation.”

In Ricci, the city of New Haven decided to throw out the scores of white firefighters, who were taking the exams to be promoted, because it feared that a potential lawsuit when no black firefighters scored high enough to be promoted. The outcome of this case will prove to have profound effects on employment discrimination practices across the country.

It has been reported that conservatives will attempt to use a recent ruling by Judge Sotomayor and the Second Circuit Court of Appeals to support their veto of President Obama’s decision to appoint Judge Sotomayor as the Supreme Court Justice. Sotomayor would be replacing Justice Souter. The Second Circuit, along with Judge Sotomayor, recently ruled against the Plaintiffs in a reverse discrimination suit brought by Caucasian firefighters against the city of New Haven, Connecticut. The city disposed of the results of a promotion exam when no African American firefighters scored high enough to be promoted, which the Caucasian firefighters argued was clear reverse discrimination.

Conservatives are likely to attack Judge Sotomayor on the claim she is unwilling to fairly assess cases of parties whose claims she does not like. The United States Supreme Court will hear the firefighters’ appeal, and it may rule in June 2009, before the Senate will hold the confirmation hearing regarding Judge Sotomayor’s Supreme Court appointment. The ruling by the Supreme Court may bear heavily on how Judge Sotomayor is viewed and could effect her confirmation as Justice Souter’s replacement.

The New York City Human Rights law which protects employees against all forms of discrimination, also has one of the broadest anti-retaliation provisions of any law in the country.

In order to have a claim of retaliation under the New York City Human Rights Law, an employee must complain about race, gender, age, sex, national origin, pregnancy or disability discrimination. The employee need not prove that the discrimination actually existed, merely that the employee had a good faith, reasonable belief that they were being discriminated against on one of those bases.

Under Title VII of the Civil Rights act of 1964, the federal anti-discrimination and retaliation law, an employer to be found liable for retaliation must take adverse employment action against an employee. Such adverse employment actions include termination, demotion, withholding compensation and others.

Under the New York City Human Rights Law, the conduct of the employer does not need to be adverse employment action, merely conduct that is reasonably likely to deter an employee from complaining of discrimination. This provides much broader protection.

The Equal Employment Opportunities Commission (EEOC) filed suit against Jon Wieland Homes and Neighborhoods, Inc., an Atlanta-based home builder, for pattern and practice race discrimination. Wieland Homes and Neighborhoods, Inc. assigned sales agents to housing communities based solely on their race. The African American agents were assigned to housing communities comprised of lower-priced homes while the Caucasian agents were assigned to housing communities of the more expensive homes. Accordingly, the African American sales agents were making significantly less commissions than their white peers.

The management expressly stated that the goal of such assignments was to hire and assign employees whose race corresponded with the predominate population of each community. The EEOC became involved when a human resource representative refused to participate in this discriminatory process. The complaint alleges that the company’s discriminatory conduct violated Title VII and seeks back pay and compensatory and punitive damages on behalf of the affected African American sales agents. Additionally, the EEOC seeks injunctive relief in an effort to stop the company’s racial discrimination.

This past week, the U.S. Supreme Court heard oral arguments in the Ricci v. DiStefano case. The case centers on whether a city may decline to accept the results of a civil service exam in which there were no minority candidates eligible for promotion. Ultimately, the City of New Haven did not accept the results of the exam which impacted the white firefighters who had passed the test. The City argues that the act was “race neutral” as both minority and non-minority applicants were not promoted and thus no one was harmed.

According to a recent New York Times article, Chief Justice Roberts raised the question that if the City does not like the results of an exam, whether that gives them a “blank check to discriminate.” This case is unique as it presents issues of race discrimination from both sides. The minority candidates can argue that they were disadvantaged by a biased and flawed exam and the non-minority candidates can claim that there was reverse race discrimination by the City when it chose not to accept the results of the exam. Whatever the outcome, this case presents very relevant issues of race discrimination in the employment law context.

In response to a harassment suit filed by the U.S. Equal Opportunity Commission (EEOC) in U.S. District Court for the Southern District of Florida, Palm Beach Division, Nordstrom, Inc. agreed to pay $292,500 in damages to 10 former employees. The suit alleged that the department store manager “harassed Hispanic and black employees based on their national origin, race and color, and retaliated against those who complained about the harassment” in violation of Title VII of the Civil Rights Act of 1964.

According to a recent press release issued by the EEOC, the lawsuit contained allegations that the alterations department manager made statements that she “hate[d] Hispanics,” and that they were “lazy” and “ignorant.” EEOC Regional Attorney Nora E. Curtain explained one of the major problems was that “instead of dealing with the despicable racial and ethnic comments, Nordstrom management allowed the harasser to retaliate against the employees for complaining.”

In addition to damages, Nordstrom also agreed to distribute its policy addressing unlawful harassment to employees, provide harassment training, post a notice of the lawsuit resolution and submit semi-annual reports to the EEOC on all harassment complaints received.

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.

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.

Age discrimination is a problem that is widely acknowledged to be spreading throughout workplaces all over the country. Its effects can be felt by everyone from bankers to doctors to lawyers to business executives and it also has reared its ugly head in the realm of professional sports.

Former Los Angeles Clippers General Manager, Elgin Baylor, has sued the NBA franchise, the league and the team owner, alleging that he was subject to age discrimination and race discrimination. Baylor, a hall of fame player, had been with the Clippers organization for 22 years and alleges in his lawsuit that he was “grossly underpaid during his tenure with the Clippers.”

Age discrimination has the ability to impact all industries and individuals and, as indicated by recent statistics put out by the EEOC, claims of age discrimination are on the rise. It therefore falls to the lawyers who represent the victims of this despicable form of discrimination to act as “private attorney generals” and police the workplace to eradicate age discrimination once and for all.

On February 12, 2009, it was announced that JCPenney will pay $50,000 to settle a race discrimination lawsuit. The Equal Employment Opportunity Commission (the EEOC) brought the suit on behalf of Reinell Singh, an African American employee who worked as a greeter at the company's store in the Staten Island Mall in New York.

"All employees have a right to be judged by their work performance and not their race," the trial lawyer who represented the EEOC in the case said, according to The New York Times. "This consent decree will help make sure that what happened to Ms. Singh does not happen to any other JCPenney employee."

The EEOC had charged that a supervisor referred to Ms. Singh with racial epithets and subsequently fired her for race-related reasons. In addition to the $50,000 in compensatory damages to be paid to Ms. Singh, JCPenney also agreed to a three year consent decree that requires adoption of a non-discrimination policy and procedures for handling complaints of employment discrimination. They will provide anti-discrimination training, post a notice about the EEOC and its lawsuit, provide a memorandum setting forth the requirements of Title VII of the Civil Rights Act of 1964 to all store employees and improve monitoring and reporting of employment discrimination.

Spencer H. Lewis, Director of the EEOC’s New York District Office, made a statement saying, "In spite of advances since Title VII of the Civil Rights Act was enacted 44 years ago, race discrimination still remains one of the most pervasive problems in today’s workplace. Racial slurs must simply not be tolerated, and the EEOC will fight to eradicate any such discrimination from the workplace."

The U.S. Supreme Court, in Ricci v. DeStefano, will address the question of whether municipalities may decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants, as a result of concerns that certifying the results would lead to charges of racial discrimination.

In a case brought by a group of white firefighters and a Hispanic firefighter in New Haven, CT, the employees argued that they were discriminated against because they were not black. The firefighters believed they would have been promoted for captain and lieutenant positions if the city did not invalidate the test results soon after it had learned that no black candidate scored high enough to be considered for the management positions. When defending its decision, the city argued that it rejected the exam because, if certified, it would create a disparate impact on black candidates and the city would face potential employment discrimination lawsuits.

The federal trial judge upheld the city’s decision and dismissed the case. The United States Court of Appeals for the Second Circuit affirmed the dismissal.

Reverse discrimination cases present highly sensitive issues employers face in an effort to promote diversity in the workplace. Courts may hear more reverse discrimination cases in the future as affirmative action programs become more prevalent.

According to a recent article published in The New York Times, Merrill Lynch paid $1.55 million to settle a lawsuit brought by an analyst who claimed he was terminated because he is an Iranian Muslim. Majid Borumand, a quantitative analyst, claimed that Merrill Lynch discriminated against him on the basis of his religion and national origin when he was terminated and that a less qualified employee was retained and promoted. As an additional obligation under the settlement agreement, Merrill Lynch agreed to improve employee training on employment discrimination.

A New York Times article published on January 4, 2009 discussed the possibility that President-elect Barack Obama may move quickly to revive legislation that would negate the Supreme Court’s decision in Ledbetter v. Goodyear Tire Company, Inc. 550U.S. 618, 127 S.C. 2162 (2007), in which the Supreme Court ruled that discriminatory acts triggering the time limits for filing an Equal Employment Opportunity Commission charge could only be unique discriminatory pay decisions, and not later pay decisions perpetuating the earlier discriminatory acts. In this case, Lilly M. Ledbetter argued that she had been discriminated against on the basis of her gender when she was given discriminatory performance evaluations that resulted in lower pay than her male co-workers, and that each discriminatory paycheck she received thereafter was a discrete violation of the law. The Court, however, ruled that “A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from past discrimination.” (Ledbetter at 2164).

Justice Ginsberg was joined by three other dissenting judges who argued that the Court’s decision reflected a “cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose.” (Ledbetter at 2188). The bill that Mr. Obama co-sponsored would have remedied any such interpretation by stipulating that each time a person receives a paycheck resulting from a decision motivated by a discriminatory bias (e.g., gender), that is a violation under the civil rights laws. Although the bill passed in the House, it was just short of enough supporting votes in the Senate. Mr. Obama and the Democratic supporters of the bill are confident that the bill would now pass in the Senate, and thus, victims of employment discrimination may be able to revive claims that otherwise would have been considered untimely. Schwartz & Perry LLP views this as a positive change and much more in line with the broad remedial purposes of civil rights laws aimed at eliminating employment discrimination.

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.

According to a recent New York Times article, New York City, led by the Department of Consumer Affairs, conducted undercover operations to expose the unlawful behavior of some employment placement agencies in defrauding immigrant workers through national origin discrimination practices.

Violations included forcing workers to sign work contracts in English, even if they did not understand the language, and keeping refunds owed to workers who were not placed through the various agencies.

Discrimination based on national origin goes beyond employment agencies and recent immigrants to the United States. National origin discrimination or race/ethnic discrimination can happen to anyone, whether they are new to the country or have been in the U.S. for many generations.

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.

There is a great debate as to whether employment discrimination laws are necessary or whether market forces will eliminate employment discrimination altogether. Even though there are Federal, New York State and New York City laws in place to stem discrimination in the workplace, there is no denying that employment discrimination is still rampant throughout all industries. Some corporations have realized this and have decided to take matters into their own hands by establishing their own policies against employment discrimination. However, these polices created by corporations only add fuel to the fire for the ongoing debate.

Such corporate anti-discrimination policies are no more publicized than the National Football League’s (NFL) Rooney Rule. The Rooney Rule, named after Pittsburgh Steelers Owner Dan Rooney, was established in 2003, requiring teams to interview at least one minority candidate for each Head Coach position available. Since the rule has been in effect, African-American coaches in the NFL jumped from 6% in 2003 to 22%, which is certainly a stark improvement in only five years. However, while diversity is increasing it is not without controversy.

Recently, in an example of both the pro and con side of the debate, the St. Louis Rams fired Head Coach Scott Linehan and promoted the Assistant Coach, Jim Haslett, a Caucasian man, to the position. In Haslett’s contract, there was a clause that guaranteed him the head coaching job for the following season if the Rams were to win six games with him as Head Coach. If the Rams do win six games, they will have never had the opportunity to interview a minority candidate for the position and the NFL will automatically void Haslett’s contract for next season. What we are left with is that the Rams will be forced to renegotiate a new contract with Haslett, likely costing the team more money than they have already agreed to pay and having to hold a bogus interview with a minority candidate. But what minority candidate would agree to a sham interview solely to help the Rams play by the rules? And so the debate marches on.

In an important decision, the U.S. Supreme Court decided in a 7-2 decision that a 19th century civil rights statute, known as Section 1981, provides a cause of action for workplace retaliation. Section 1981’s previous construction allowed it to be used to protect employees against racial discrimination in making and enforcing contracts. It is commonly used in trial, due to its breadth and it allows for an unlimited cap on recoverable damages. As a result of these attributes, Section 1981 may be used more frequently and can now be applied to workplace retaliation cases.

The 2008 presidential election is extraordinary in many respects. It marks the first time that an African-American, overcoming racial discrimination, has secured the nomination of a major party. It also has had a woman, in spite of an unfair gender bias, advance far beyond anyone’s initial predictions. In addition to these two stereotypes, The New York Sun recently reported that another issue has permeated the race: age discrimination.

The Republican contender, John McCain, and Barack Obama, the presumptive Democratic nominee, have begun to exchange barbs over McCain’s age. The McCain camp alludes to the fact that Obama may be too young, calling him inexperienced. In return, the Obama campaign has suggested that Mr. McCain may be “confused,” or “has lost his bearings.”

Schwartz & Perry LLP's Managing Partner, Murray Schwartz, commented on the issue of age discrimination in The New York Sun article stating that “Age discrimination is an insidious, egregious disease. Age should not be a factor in any employment decision that’s made. Not in hiring. Not in firing.”

Mr. Schwartz, while refraining from making any political observations said, “If someone is going to be ignored as a viable candidate because of age, besides it violating the law, it would be shameful. Experience is a major component of everything.”

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.

In a recent article in The National Law Journal, the results of a recent survey revealed differences in the amount of post-law school debt among men and women and those of different races and ethnicities. The survey put forth data stating that women generally are in greater debt than men and that minorities are likely to have larger debt than Caucasian law graduates. One can come to their own individual conclusions regarding this data, but perhaps disparities in hiring after law school among men, women and minorities may force some students to carry law school debt for a longer period of time. It is possible that women and minorities who attain gainful employment shortly after graduating still suffer the effects of a "glass ceiling" in the salaries they are able to earn.

On April 1, 2008, the U.S. Court of Appeals for the Second Circuit ruled for the first time that an employer can be held liable for race discrimination based on an employee’s association with a person of another race. The court reversed the District Court’s decision to grant Defendant Iona College’s motion for summary judgment, rejecting the District Court’s restrictive view of Title VII race discrimination claims as applying only to an individual “because of such individual’s race.” Instead, the court found that where the plaintiff-employee, Craig Holcomb, a white man, was allegedly terminated and discriminated against because of his marriage to an African-American woman, “the employee suffers discrimination because of the employee’s own race.”

Holcomb, an assistant basketball coach at Iona College, alleged that he was terminated based on his supervisors’ discriminatory animus against his interracial marriage. The court found that the plaintiff had adduced enough evidence, through the comments and conduct of his supervisors, to show that his termination was based, at least in part, on improper racial motives. The court noted that even though Iona College had proffered valid reasons for Holcomb’s termination, namely the poor performance of Iona’s basketball team, the employee need only show that “the prohibited factor was at least one of the ‘motivating’ factors” in his termination.

This ruling may also open the door to other claims of employment discrimination based on association, such as religious discrimination based on an employees association with a person of a certain religion.

In the case of Hubbard v. Port Authority of New York and New Jersey, 2008 WL 464694 (S.D.N.Y. Feb. 20, 2008), currently pending in the Southern District of New York, the plaintiffs alleged, among other things, that they were subjected to a hostile work environment because they were African-American. The plaintiffs recounted a two-year period where they were given demeaning tasks, while their white co-workers were not, and where their co-workers posted pictures of a blurry black woman and a picture of two monkeys, referring to the plaintiffs.

The defendant moved to dismiss the plaintiff’s hostile work environment claim, in a motion for summary judgment, claiming that not all of the acts could be considered “discrimination,” since they did not reference the plaintiffs’ race. The court denied the defendant’s motion holding that “[w]hile not every allegation bespeaks of overt racial animus,” sufficient evidence existed for a jury to find that the acts were motivated by race discrimination.

The court’s decision in Hubbard reaffirms that merely because particular conduct may not directly reference race, it still may be motivated by race and serve as the basis for a race discrimination claim. Instead, courts will look to “the totality of the circumstances” to determine if conduct is based on race, even where the conduct itself does not implicate race.

In the case of John Doe Anti-Terrorism Officer v. The City of New York, 06-CV-13738, A Muslim New York City Police Officer has prevailed in a Motion for Summary Judgment in his race discrimination suit under Title VII of the Civil Rights Act and 42 U.S.C. §1981. The officer claims that a counter-terrorism advisor to the New York Police Department (NYPD) created a hostile work environment by subjecting him to discriminatory remarks and constantly forwarding emails degrading Muslims to the plaintiff and other NYPD personnel.

The U.S. District Court for the Southern District of New York dismissed the defendant's argument that his comments and emails were “free speech” that should be protected by the First Amendment because “acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” The Court’s ruling elucidates that race discrimination in the workplace is not constitutionally protected free speech.

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.

Labor and employment law issues, particularly in the context of the protection of federal anti-discrimination laws, are one of the significant subjects to be addressed on the Supreme Court’s docket during this current term. The Court will hear arguments from both employees and employers on issues ranging from age discrimination (Age Discrimination in Employment Act) and disability discrimination (Americans with Disabilities Act) protection to the U.S. Equal Employment Opportunity Commission (EEOC) filing issues to a case relating to retaliation under the Federal civil rights statutes. This was originally discussed in a recent Outside Counsel column in The New York Law Journal which referred to the Supreme Court’s employment law docket this term.

Among some of cases that the Court will decide will be whether the Age Discrimination in Employment Act’s protections against retaliation by one’s employer can be extended to Federal employees. Another case poses the question of whether the Age Discrimination in Employment Act’s requirement of filing a “charge” of discrimination is met by the filing by an employee with the EEOC of an intake questionnaire and accompanying affidavit. The Federal Civil Rights statutes will also be an area of focus for the Court. The statute at issue, 42 U.S.C. § 1981, does not contain the words “retaliation” or “retaliatory,” yet the question presented is whether a cause of action for race retaliation can be brought under the statute.

It is evident that the U.S. Supreme Court will be spending a great deal of its time grappling with the complex issues of labor and employment law. The employment law field is ever expanding and presents some of the most cutting-edge and developing legal issues of the day.

A former New York State Senate photographer, Joseph Maioriello, who is Caucasian, has prevailed in a Motion for Summary Judgment in his race discrimination suit under Title VII of the Civil Rights Act. The photographer claimed that he was terminated by then Minority Leader David Paterson due to his race and replaced by an African-American employee.

The photographer claimed that he had performed capably in the State Legislature for 26 years and claims that he was fired because some of the legislators that worked with him wanted a minority employee in his position. The defendants claim that his termination was a function of both poor performance and that he was a holdover from a past political leader and there would be questions of loyalty to the new Senate leadership.

A Motion for Summary Judgment is a dispositive motion. Defendants will make this type of motion and argue that there are no issues of fact for a jury to resolve and on those grounds, the case should be dismissed. The plaintiff, in these cases, must raise issues of fact and demonstrate that the issues of the case are best resolved by the court allowing them to make their case to a jury and having them decide. The jury would then determine if there was, in fact, discrimination in the employment decision or whether the non-discriminatory reasons offered by the employer are believable.

In this case, Judge Mordue of the Federal District Court of the Northern District of New York found there to be triable issues of fact in this case and it would be best for a jury to hear the cases presented by both sides and then make a determination at that point.

According to a recent article in The Wall Street Journal, Lockheed Martin Corp. settled a race discrimination suit for $2.5 million. The article went on to state that this was the largest individual race discrimination payment obtained by the U.S. Equal Employment Opportunity Commission (EEOC). The fact that this settlement was reported at the start of a new year, perhaps might provide us with a prediction of things still to come.

The strength and persistence of the EEOC can be a strong factor in providing a message to employers. In fact, it is believed by some that the EEOC is particularly interested in moving forward with high visibility matters because it helps send a message to employers that the EEOC is there to provide some measure of control over what would otherwise be a workplace that has minimal policing. The more visible the company involved, the more visible the message.

The article reflected figures provided by EEOC officials, which stated that race discrimination complaints reached 7,000 in FY 2007. The EEOC was said to have launched a strong effort to broaden education and intensify enforcement against race discrimination in the workplace. The fact is, discrimination in the workplace, in all its forms, should become the subject of greater effort and stronger surveillance not only by the EEOC, but from individuals who are aware of discriminatory practices in the workplace. The rallying cry should not simply be emanating from the EEOC, but from all of those individuals who suffer from employment discrimination.

This month, a Federal racial discrimination case filed by the U.S. Equal Employment Opportunity Commission (EEOC) against retailer Target Corp. in Wisconsin concluded with a settlement of $510,000 and additional terms.

The EEOC’s suit claimed that in 2000 and 2001,Target improperly denied management jobs to four African-American applicants. Three applicants were not interviewed, and one who had interviewed but did not get the job, despite testing well on Target’s own leadership ability test. The EEOC also claimed that Target failed to make and preserve records relevant to the determination of whether the company had engaged in unlawful employment discrimination practices.

The U.S. District Court for the Eastern District of Wisconsin granted Target’s motion for summary judgment. On appeal, the U.S. Court of Appeals for the Seventh Circuit in 2006 reversed and remanded, finding in its opinion that, although Target revised its record keeping policy, nothing in Target’s new policy clearly prevented bad faith destruction of resumes or other employment application documents. The Court of Appeals also found that, with regard to Target’s decision not to hire the applicant who took the leadership test, Target presented “an ostensibly objective nondiscriminatory reason but failed to articulate what criteria informed this reason.”

With regard to the other three applicants, the court found that “the EEOC did present sufficient evidence to establish a genuine issue of material fact as to whether Target’s reason for not interviewing [the three applicants] was a pretext for race discrimination,” The court also noted that although Target argued that its hiring manager could not have discriminated against the three applicants because he did not know their race, but the EEOC presented evidence that created a genuine issue of material fact as to whether the manager indeed knew the applicants’ race. In a press release, the Director of the EEOC’s Chicago District Office said that the appeals court decision was “noteworthy for its ruling that the trial court could admit into evidence expert testimony to the effect that the employer may have racially identified the applicants as African American on the basis of their names or accents heard during telephone conversations.”

Following the U.S. Court of Appeals' reversal, the EEOC and Target settled the suit by way of a consent decree. According to the EEOC release, under the 30-month consent decree, Target agreed to pay a total of $510,000 to the four applicants and to revise its document retention policies, provide training to supervisors on employment discrimination and record-keeping, report on hiring decisions, and post a notice about the decree to employees in its District 110 stores and offices.