We are pleased to share a favorable decision from the 2nd Circuit regarding Sexual Harassment claims under the New York City Human Rights Law. The case is Mihalik v. Credit Agricole Cheuvreux North America, Inc.
The full text of the decision is available on the Recent Happenings section of our website.
In late-January 2013, the federal Equal Employment Opportunity Commission (EEOC) released its annual report of claims filed for the previous year. While there are state laws protecting employees against discrimination in the workplace as well some protective city laws, the EEOC is the federal agency which regulates and enforces the federal laws preventing employment discrimination, namely Title VII, the ADEA, and the ADA.
From the data provided by the EEOC, there were 99,412 private sector workplace discrimination charges filed during fiscal year 2012. This is a decrease from 2011 when nearly 100,000 charges were filed. Additionally, race and sex discrimination are the most common types of claims made, along with retaliation for making a complaint of discrimination. It is important to note that in the EEOC statistics, sexual harassment and pregnancy discrimination are included under the larger sex discrimination classification.
The past year a very active one for the agency as it filed 122 lawsuits to secure damages for violations of the federal laws. Additionally, according to its press release, the EEOC’s staff resolved 254 lawsuits for a total monetary recovery of $44.2 million and completed 240 systemic investigations which, in part, resulted in 46 settlements or agreements, amounting to $36.2 million for the victims of discrimination. In particular, the use of mediation or conciliation prior to the institution of litigation by claimants increased by 18 percent from 2011. This increase in the use of alternative dispute resolution such as conciliation or mediation is particularly significant as these methods have grown more prominent over the past several years, and, in my cases, affords both the claimant and respondent to the discrimination charge the opportunity for a prompt and equitable resolution prior to the institution of any litigation.
The complete set of EEOC statistics for 2012 and earlier years as well as the EEOC’s press release containing analysis of these figures is available at the EEOC’s web site.
A lawsuit was recently filed in Federal Court by employees of a Bronx car wash seeking unpaid wages and overtime. This suit is apparently part of a campaign by an organization called WASH New York which seeks to use the power of the judicial system to take action to protect the rights of employees in the workplace.
The claims raised in the suit relate to being paid less than the minimum wage of $7.25 per hour and not being paid proper over time for working more than forty hours per week. The employees are also working in conjunction with various employee rights organizations to possibly unionize and have better and safer working conditions, such as safety goggles and gloves when working with certain chemicals.
Several governmental entities have attempted to intervene in these cases. For example, New York City Public Advocate Bill DeBlasio has stated that New York City should cancel its contracts with this car wash because of these allegations of its failure to comply with the applicable wage and hour laws. Additionally, the New York City Council has legislation presently pending which would further regulate the car wash industry.
Employers in many different industries frequently prey on employees who may not be legal immigrants and have poor language skills. Often times, employees are singled out and targeted based on their national origin - which is discriminatory. In these cases, employees might not report any potential violations of the relevant laws for fear of retaliation and possibly losing their job. Additionally, employees who many not be legal immigrants are frequently in fear of deportation or other immigration-related problems. It is highly possible that employers may threaten their employees with termination or reporting them to the INS if they object to the inappropriate treatment in the workplace.
An article regarding this issue was recently in The New York Daily News.
Schwartz & Perry represents plaintiffs in cases of employment discrimination and retaliation under the federal, state, and city laws. Additional information regarding the relevant human rights laws is available on Schwartz & Perry’s website, which is at www.schwartzandperry.com.
As the New York Times reports, while he was in the position of Security Director for the National Basketball Association (“NBA”), Warren Glover tried to do what was right. Glover repeatedly contacted his superiors to inform them that women in his office were being either sexually harassed or discriminated against. Allegedly, instead of the NBA taking Glover’s concerns seriously, they ignored him and eventually fired him in retaliation for his complaints.
Glover, who continually received exemplary reviews from his superiors including being considered “one of the best security professionals.... [they had] ever worked with,” is now suing the NBA following his dismissal last month for lost wages and damages. Glover alleges that his dismissal was not related to the quality of his work, rather, he was fired because of his willingness to speak out against the harassment taking place in his office. Glover further alleges that senior NBA security officials denied him promotions, demeaned him, and treated him differently from other employees because of this willingness to speak out.
The animosity towards Glover may have began in 2010 when his sworn testimony was a major force behind the dismissal of a senior NBA official in connection to a sexual harassment claim. Other top NBA security officials may have feared a similar fate because of Glover’s willingness to speak out, leading to them to act preemptively and fire Glover.
This case is indicative of an unfortunate truth in workplace discrimination, that fear of retaliation prevents workplace discrimination suits from being brought. Retaliation, however, is forbidden under the human rights laws. Schwartz and Perry is a New York employment law firm that focuses on representing victims of workplace discrimination.
The full article can be found at the New York Times website.
McKinsey & Co. is faced with a religious discrimination lawsuit that may be the first of its kind. In the lawsuit, recently filed in Manhattan federal court, a former employee of the company claims he was subjected to ridicule and taunts from co-workers after he began wearing a yarmulke at work. The man claims he complained to the Human Resources Department of the company but was told to “wait it out.” He claims he eventually went to the police after his boss’s ex-boyfriend allegedly threatened him for complaining about the treatment he was receiving. He was fired two days later.
But in an interesting twist, the twenty-nine year old man, Ciro Roselli, is not Jewish. Rather he practices “theosophy,” a spiritual philosophy which holds “there is no higher religion than truth.” Roselli explained to the New York Post “that he began exploring theosophy in 2007, shortly before he was hired by McKinsey as an executive assistant.” He continued, “it is all about finding the truth in religions . . . I’m still learning all the different facets.” It is this exploration into religion that allegedly lead to his wearing the religious head covering in the office, and the subsequent harassment he endured.
Roselli was allegedly subjected to a wide range of derogatory and humiliating comments from his co-workers and supervisors such as accusations he wasn’t “a real Jew,” being told to “Take that yarmulke off! You’re creeping me out,” and “you can’t be Jewish if you’re Italian.” One co-worker allegedly commented, “I guess I won’t be asking you for a loan”- seemingly “a reference to the stereotype that Jewish people are ‘cheap.’” Roselli also claims that his boss likened him to Madonna, allegedly drawing a parallel between the two’s “sudden embrace of Judaism,” even going so far as to send him an email with the subject line “Madge Roselli.” The popstar is known for having the nickname “Madge.” The former employee is now suing the company for discrimination and retaliation after his termination in April 2011.
Employment discrimination protections for gay, lesbian, bi-sexual, and trans-gender employees under federal laws are of great consequence as legislation awaits Congressional action. According to a recent study performed by the Center for American Progress, 73 percent of Americans support protecting the LGBT community from workplace discrimination. This figure, which includes 81 percent of Democrats and 66 percent of Republicans, reflects a growing acceptance of LGBT members of the workforce by the general public. However, the study also found that 90 percent of Americans incorrectly believe that a federal law is already in place protecting those employees from workplace discrimination.
This misconception may explain the absence of any sustained public support for bills that would protect LGBT employees in the workplace. One such bill, the Employee Non-Discrimination Act (ENDA), has been introduced in both houses of the United States Congress. This bill, if passed by Congress and signed by the President would afford LGBT Americans the same federal protections given to women, minority group members, veterans, seniors, and the disabled. However, despite ENDA’s potentially key role in achieving workplace equality, public support for the bill by Congressional leadership pales in comparison to public support by leadership on Capitol Hill for the repeal of the Defense of Marriage Act and Don’t Ask Don’t Tell. As such, the issue is, by and large, left out of the conversation by the mainstream national media and, consequently, not in the forefront of voter's minds.
To ignore the lack of federal protection for LGBT Americans in the workplace would be to ignore a gaping hole in the United States’ human rights policy. It would be tantamount to ignoring the fundamental human rights of citizens that face among the highest percentage of workplace discrimination in the country. Indeed, according to The Willliams Institute on Sexual Orientation Law and Public Policy, 15 percent to 43 percent of gay individuals have experienced some form of discrimination or harassment at the workplace. Additionally, as many as 17 percent of gay and transgender workers report being passed over for a job or fired because of their sexual orientation or gender identity. The data also indicates that as many as 28 percent of LGBT workers have received a negative performance evaluation or were passed over for a promotion because of their sexual orientation.
At present, twenty-one states (including New York) presently outlaw employment discrimination on the basis of sexual orientation. However, until ENDA or similar legislation is passed, federal law offers no protection to gay and transgender workers. This opens the door for states to ignore the rights of those employees or, as Tennessee has recently done, take affirmative steps to ensure that local or municipal laws protecting gay and transgender workers are per se illegal.
The public has long held that discrimination has no place in the American workplace. Data shows that this view extends to discrimination against individuals based on sexual orientation. However, until legislation like ENDA receives the notoriety that other issues effecting the gay and transgender community receive, the economic security, human rights, and dignity of millions of gay and transgender Americans will be at risk.
Employees who complain about discrimination are protected against retaliation by the company. In Thompson v. North American Stainless, decided on January 24, 2011, the United State Supreme Court addressed what protections third-parties who did not make a complaint have against retaliation.
In Thompson, the male plaintiff and his then-fiancé both worked for the company. The woman filed a charge of sexual harassment in February 2003. Just three weeks later, the man was fired, which he alleged was in punishment for his fiance’s complaint of sexual harassment.
The Supreme Court ruled that the male had a valid claim of retaliation against the company, even though he was not the person who made the complaint of discrimination. The Court, in a decision written by Justice Scalia, held that it was “obvious” that the conduct alleged would violate the laws against retaliation, since the man was “not an accidental victim of the retaliation,” but rather was targeted to punish his fiancé for complaining about discrimination.
The Thompson decision, which reversed the courts below, stands as a remarkable expansion of the protections against retaliation. The Court recommended caution in ensuring that the protections not be extended too far, holding that only persons who are in the “zone of interest” of the statute are protected by that statute.
Major New York City Restaurant, the Saigon Grill is presently the subject of protests and pickets by its employees. The employees of the Vietnamese restaurant are claiming they are being treated unfairly as a result of their age.
One of the protesters claims they fired him after complaining about alleged age discrimination. They also claim that waiters and busboys who were over the age of 40 were fired, as well, because of their age. Both age discrimination and retaliation after complaining of discrimination are protected under the employment discrimination laws.
In 2008, thirty-six Chinese employees of the restaurant were awarded a $4.6 million settlement for labor law violations such as failure to pay overtime and paying some employees less that $2 per hour.
The full text of the article can be found here.
The EEOC filed a suit on behalf of Rena Flores, who worked as a secretary at the Oakdale Collision Center. The manager of the store allegedly made comments to Flores and other Mexican employees stating that they were “smelly,” “greasy,” and “wetbacks.”
The manager also reportedly made sexually inappropriate comments such as “women should clean the bathrooms, not men,” and “women belong barefoot and pregnant.”
When Flores complained to higher level managers about this manager’s behavior, the company allegedly retaliated against her by terminating her employment. Such a retaliatory action is prohibited by the various human rights laws.
EEOC Regional Attorney William R. Tamayo noted, “All workers have a federally protected right to a workplace free from unlawful discrimination. In addition, workers have the right to report discrimination without fear of reprisal.”
The full press release can be found here.
Catherine Herridge, a reporter at Fox News, claims that she was subjected to gender and age discrimination and that when she complained to Fox, she suffered from retaliation. Fox News denies these charges.
In 2008, Herridge's employment contract was up for renewal. Fox insisted on putting language in her employment contract which would restrict her from making any employment discrimination complaints in the future. Because she refused to sign the contract with such language included, Fox claims she became an "at-will" employee without any job protections.
It was only after Herridge filed a charge of discrimination with the EEOC, and an EEOC investigator conducted an on-site investigation, that Fox agreed to take out the retaliatory language and presented Herridge with a new employment contract.
Schwartz & Perry specializes in claims involving employment discrimination in all its forms. Additional information is available on our website, at www.schwartzandperry.com.
According to a release by the EEOC, a supervisor of the company disparaged a tour coordinator who, because of a physical impairment, had difficulty walking. Some of the remarks by the supervisor included “If you cannot walk straight, you cannot work at the hotel” and “You are selfish for making other people have to watch you limp."
The victim and a fellow employee complained of the harassment to the vice president but no corrective action was taken. To the contrary, both the victim and the fellow employee were harassed and discriminated further, to the point were they were forced to quit.
The Equal Employment Opportunity Commission is suing on behalf of the plaintiff.
Additional information can be found here.
John Hithon, an African-American male, and former employee of a food plant, brought suit against his former employer alleging race discrimination. Hithon, who possessed 13 years of experience on the job, was passed over for a shift supervisor position by his manager, who was white, in favor of two white candidates from other plants.
Evidence admitted at trial consisted of statements made by the manager routinely calling black employees “boy.” The first jury found in Hithon’s favor, awarding him $1 million. The decision was later reversed by the 11th circuit. The Court reasoned that: “The use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent . . ., the use of ‘boy’ alone is not evidence of discrimination.”
The case then went to the United States Supreme Court which reversed and remanded for trial, stating that the inquiry should involve the context in which the statement was made. A new, second jury returned a verdict in Hithon’s favor, but the Appellate Court, once again, reversed.
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 over $250 million award to the victims of gender discrimination in the case against Novartis has brought national attention to the multiple types of gender bias in the workplace. The plaintiffs were subject to discrimination based on their gender, pregnancy and motherhood. Cases such as this and the class action against Walmart have shed new light on the prevalence of wage gaps in American companies, many of which have received praise for being great places for women to work.
Many law firms and other organizations have already noticed a rise in complaints from women who are ready to speak out about unequal pay and discriminatory treatment in the workplace. Additionally, lawyers are more willing to take on cases based in family responsibility and motherhood discrimination with these new precedents.
The complete article 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."
The EEOC decided that the NY Department of Education wrongfully terminated and discriminated against Debbie Almotaser, a principal at an Arabic-English school when she mentioned the term "intifada" and made controversial remarks to staff. Almontaser seeks reinstatement, more than $300,00 in court costs, lost wages, and damages for pain and suffering. The EEOC hopes to negotiate a settlement.
For more information, please visit the full article: http://www.google.com/hostednews/ap/article/ALeqM5gzjAmDneIMrr1xlvk0dDBuvuwF1wD9EDGFP00
The Equal Employment Opportunity Commission (EEOC) has released its 2009 report of discrimination and retaliation claims filed in 2009. Overall it appears the total number of charges filed dropped slightly, but there was an increase in retaliation claims filed. Race and gender discrimination both still remain the protected category most commonly named in the charges filed. Disability claims also increased as well this year.
The statistics are available at:
http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm
A former employer who gives a former employee a negative job reference in retaliation for the employee's complaint of discrimination may be liable under the human rights law.
In Jute v. Hamilton Sunstrand Corp., 420 F .3d 166, 178-79 (2d Cir. 2005), the plaintiff was on the verge of obtaining a new job. Before she was offered the job, however, her former employer told the new job that he could not give a reference because Jute "had a lawsuit pending," even though the plaintiff did not actually have a lawsuit pending. The Second Circuit, the federal appeals court in New York, held that this false statement could "negatively affect Jute's chances of securing employment" and denied the defendant's motion to dismiss the case.
Other courts since that time have also confirmed that individuals may assert a claim against former employers who, in an effort to retaliate against the employee's claim, give a negative reference. For example, in Brescia V. Sia, 2008 WL 1944010, at *4 n.3 (S.D.N.Y. Apr. 30, 2008), the court rejected the defendant's effort to dismiss the plaintiff's case under similar circumstances, finding that even where the negative reference is "factually accurate," an individual may have a claim.
The Equal Employment Opportunity Commission (EEOC), which has tracked the number of retaliation claims since 1992, has reported that claims including a retaliation charge rose 23% this past year. The reasons for such a surge in litigation differ according to the EEOC and the management-defending law firms that challenge them in court.
Some law firms are blaming the current poor economy for the rise in lawsuits, saying that many complaints come from laid off workers. Others point to a recent 2006 Supreme Court decision that broadened the definition of retaliation in this context, often making retaliation easier to prove than discrimination by an employer. Some management-side law firms cite increases from 21% in retaliation claims this past fiscal year, and some say that 70% of discrimination suits handled by their firm include a retaliation claim.
The EEOC is focusing on retaliation-based complaints as their top priority. Carolyn Wheeler, an EEOC assistant general counsel says enforcement of anti-discrimination law “depends totally on people coming to file complaints. If people don’t feel free to do that , these laws don’t get enforced.”
Plaintiff Kevin Heffernan alleged that disciplinary charges were filed against him by defendant Frank Straub in retaliation for his exercise of his First Amendment right of free speech and association. The disciplinary charges were filed by the Fire Bureau in connection with the delayed response to a fire that occurred on April 20, 2005 while the plaintiff was in charge of a number of fire fighters at the White Plains Drill School that day. Heffernan contends the charges were filed in response to his speech on behalf ot eh Union and statements he made over the radio on April 20, 2005. Straub, the Commissioner of the Department of Public Safety of White Plains, New York, and the other defendants joined in the suit moved for dismissal on grounds. The trial court granted dismissal in part, but refused to dismiss the complaint in its entirety. The defendants then moved for reconsideration of the opinion, and the claim was subsequently dismissed.
A motion for reconsideration or re-argument may only be granted if the court has failed to take in to account “controlling decisions or factual matters that were put before it on the underlying motion...and which, had they been considered, might have reasonably altered the result before the court.” Greenwald v. Orb Coomc’ns & Mktg., Inc., No. 00Civ.1939 LTSHBP, 2003 WL 660844, at *1 (S.D.N.Y. Feb. 27, 2003). The defendant’s further directed the court to McCullough v. Wyandanch Union Free School District, which held speech occurring just before the retaliatory act will not support an inference of causation based on proximity if the plaintiff has engaged in this speech throughout his employment.
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.
A representative for New York State Catholic Health Plan brought two claims against her employer. Her first claim was that Fidelis violated the Fair Labor Standards Act (“FLSA”) is not paying their representatives overtime. Her second claim is that she was terminated by Fidelis in retaliation for complaining about Fidelis’ overtime policy.
Since plaintiff and other marketing representatives often worked over forty hours a week, she made numerous complaints to her immediate supervisor that she was not being paid overtime. Plaintiff also complained to other supervisors that these marketing representatives should be paid overtime. After plaintiff made complaints, her immediate supervisor told her that he was “tired of her complaints” and that she was a “pain in the ass”. After being told this, plaintiff intended to raise these issues with the Chief Operating Officer of Fidelis. Subsequently, plaintiff was fired, with defendant alleging that plaintiff refused to follow enrollment regulations.
In the original action, plaintiff brought a retaliation claim under FLSA and under state law, namely Labor Law § 215. The federal retaliation claim was dismissed, while the motion to dismiss the state law claim was denied. At issue in this decision was defendant’s motion for summary judgement for the Labor Law §215 claim. New York Labor Law §215(1) contains a retaliation provision stating “No employer...shall discharge, penalize, or in any other manner discriminate against an employee because such employee has made a complaint to his employer...that employer has violated any provision of [the Labor Law].” In order to make a labor law case, a plaintiff must show that while employed, they made a complaint and the employer took an adverse employment action.
In support of their summary judgment motion, defendant stated that plaintiff never directly complained to the Chief Operating Officer about her overtime compensation and that he had no knowledge of this complaint before her termination. In response, the plaintiff argued that specific knowledge of a complaint is not required, just that there is a general corporate knowledge. Also, a casual connection can be inferred based on a close length of time between an employee’s complaint which is a protected activity and an adverse employment action. Here, there was only a two month window between Plaintiff’s last complaint and her termination. Also, there were no notes included about the defendant’s “investigation” of plaintiff. Because of this, there was an issue of fact to show that Plaintiff’s discharge was motivated, at least partially, by retaliation.
In a lawsuit announced July 6, 2009, the EEOC accused Kmart Corporation of subjecting a 76-year old woman to age discrimination, retaliation and constructive termination.
Age discrimination and retaliation for reporting discriminatory conduct constitute a violation of the Age Discrimination in Employment Act (ADEA). The EEOC alleges Kmart was in violation of the ADEA for failing to investigate and correct the hostile work environment after the woman gave notice of discriminatory conduct against her. The woman alleged that the pharmacy manager accused her of being too old to work, requested that she retire and made derogatory comments on performance evaluations. This conduct in effect forced the woman into resignation.
After failing to successfully reach a settlement, the EEOC brought this suit seeking lost wages and liquidated relief. Federal laws prohibiting employment discrimination are enforced by the EEOC.
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.
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.
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.
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.
According to Bloomberg.com, The United States Equal Employment Opportunity Commission (EEOC) announced its total claims filed for the year ending September 3, 2008. There were a total of 95,402 claims filed. This includes claims for employment discrimination and retaliation in the workplace.
This amount represents an increase of 15% over the amount filed in 2007. Interestingly enough, over 25% of the claims filed were for age discrimination. As the population ages, in conjunction with employers feeling pressure to reduce their workforce, employers must be ever-vigilant in ensuring that all employment decisions are made in a non-discriminatory manner. Where a discriminatory bias enters the process, a plaintiff may then work to assert their protected human rights by making a complaint of employment discrimination.
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 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.
Warcraft warriors beware! A recent online discussion among recruiters identifies that certain hiring managers are specifically instructing recruiters to weed out candidates who play World of Warcraft. The rationale given to these recruiters is that Warcraft players cannot give 100% of their focus to their jobs since they are simultaneously concerned with their online personas and their sleep patterns are irregular due to playing the game at night.
It remains to be seen whether this discussion bears any truth. What is clear, however, is that employees who play Warcraft are NOT protected under the employment discrimination laws. The laws, which specifically mention the categories that they protect (ie., age, gender, race), do not include playing Warcraft or any other video game. Even a Hunter at Level 80 is not protected against a boss as evil as Gruul the Dragon Killer.
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.
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 two recent cases decided by the U.S. Supreme Court demonstrate that there is a broad consensus among a diverse group of the Justices that retaliation against workers who complain of race discrimination and/or age discrimination is wrong. In a recent case, Chief Justice John Roberts joined Justice Stephen G. Breyer in the majority opinion of a 7-2 vote holding that a provision of the Civil Rights Act of 1866 covers claims of workplace retaliation that follow complaints about racial discrimination.
In another case, Justice Samuel Alito wrote a majority opinion in a 6-3 decision which held that the Age Discrimination in Employment Act protects federal workers from workplace retaliation after complaining about age discrimination. These two cases show the broad support for protection of employees against retaliation in the workplace.
A recent article in the The New York Times reported on a U.S. Supreme Court decision regarding retaliation in the workplace. The Court held that a provision of the Civil Rights Act of 1866, Section 1981, permits the filing of workplace retaliation claims. Workplace retaliation claims arise when an employee makes complaints to their employer about instances of discrimination in the workplace and the employer responds with an adverse action. It was also held that this law covers both Federal and private employees.
This decision is a significant step in favor of employees because it provides recognition of the fact that employers cannot “punish” those who speak out against discriminatory acts in the workplace.
The 6th U.S. Circuit Court of Appeals recently held in Thompson v. North American Stainless, No. 07-5040 (6th Cir.), that third party retaliation is actionable.
In Thompson, a male engineer filed a retaliation suit against his employer claiming that his employer fired him in retaliation for a gender discrimination suit brought by his fiance, who was also an engineer at the same factory.
As a result of this expansion of retaliation, plaintiffs who bring employment discrimination claims against their employer will no longer have to fear retaliation against their friends or relatives who happen to work at the same company.
Frequently, facts which lead to a claim of employment discrimination do more than simply that. They become the foundation for a claim of workplace retaliation. It is important that we remain mindful of the fact that even if a plaintiff does not sustain his/her claim of employment discrimination, whatever the basis may be, if the employee had a reasonable basis to believe that an employment discrimination claim existed and he/she engages in a protected activity by notifying the employer, and advises the employer that he/she will pursue a claim of employment discrimination and the employer then takes adverse employment action, the workplace retaliation claim may be valid although the employment discrimination claim may fail.
It is essential, therefore, that in considering workplace retaliation claims that we are mindful of the following sentiment that was expressed in recent decision in Weiss v. Morgan Stanley, (05-cv-3310 S.D.N.Y), namely that “a plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as she can establish that she possessed a good faith reasonable belief that the underlying challenged actions of the employer violated the law.”
An employee may assert a claim for workplace retaliation when he/she is punished for asserting or assisting with a claim of employment discrimination or sexual harassment. One of the elements that must be established in order for such a claim to succeed is that the plaintiff suffer some kind of “adverse employment action” as a result of the complaint. Examples of such adverse employment actions include, but are not limited to, termination, demotion, cut in pay or transfer to less desirable location.
In Fei v. Westl AG, the plaintiff brought suit against his employer, claiming that the company breached his rights under the Fair Labor Standards Act. The company then filed a counterclaim against the plaintiff, claiming that he misappropriated the company’s confidential information.
Judge Baer, of the Southern District of New York, found that the company’s counterclaim against the plaintiff was adverse employment action to support a claim of workplace retaliation. The court found that since the plaintiff alleged that “he has suffered harm to his reputation, intimidation, legal costs and delay as a result of the counter claims,” the counterclaims impacted his ability to secure prospective employment.
The court also relied upon the interesting timing of the counterclaims, noting that if the company was going to file a claim against the employee, why would it wait until shortly after the plaintiff filed his own claim? In short, if a company responds to an employee’s claim under the New York City Human Rights Law with a counterclaim, a company may be exposed to a claim for workplace retaliation.
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.
According to a recent article in The New York Times, the U.S. Supreme Court has agreed to hear two new employment discrimination cases this term. One involves age discrimination and the other retaliation against employees for complaining of discrimination. This adds to the several others that the Court had already agreed to hear. Employment law is very well-represented considering that the Court will only hear fewer than 70 cases this term.
In the age discrimination case, Meacham v. Knolls Atomic Power Laboratory, the employer fired 31 people, 30 of whom were over 40 years of age, which places them in the protected class for age discrimination. The employer claimed this decision was made for a legitimate business reason. The Court will decide the question of when an employer claims that employment decisions were based on “reasonable business justification,” whether it is up to the employer to prove that this reason or reasons existed or if it is the burden of the employee to prove that such reason or reasons did not exist. This issue is one that could have a significant impact on employment discrimination law for many years to come.
The workplace retaliation case, Crawford v. Metropolitan Government of Nashville, involves an employee, Vicky Crawford, who did not make any complaints to management herself, but rather when other employees complained, there was an investigation of the complaints, and at that point Crawford was questioned and discussed what she believed to be sexual harassment. The end result was that the supervisor who was the subject of the complaints was not disciplined, but Crawford and several other women who complied with the investigation were terminated. The Court is hearing this case to decide whether protection from retaliation is only available to the employee who initiates a complaint or files a charge with the appropriate government agency or if those who speak in internal investigations can also receive the same protection from retaliation.
It is readily apparent that employment law, specifically employment discrimination, is one of the most active and evolving areas of the law. It is important that employees are aware of the rights and protections they have under the law.
