New York Employment Lawyer Blog

CENSUS BUREAU ACCUSED OF DISCRIMINATORY HIRING PRACTICES IN NEW YORK CITY

Wed, 11 Aug 2010 07:47:35 -0500

Potential employees were disqualified from temporary jobs with the 2010 Census Bureau in New York City for their criminal background. Civil rights groups are bringing a lawsuit in response to their discriminatory practices, alleging they violated the Civil Rights Act. Applicants with a previous arrest are required to provide official records regarding the matter within 30 days to challenge the information. This is required of any applicant with even the most insignificant criminal background. Applicants could be disqualified simply for being picked up as a suspect in a crime.

The Census Bureau’s policy on applicants with a previous arrest has been criticized before, yet they have not made any changes to ensure they are treating potential employees fairly.

More information is available here.

SEXUAL HARASSMENT SUIT FILED AGAINST NEW YORK CITY POLICE DEPARTMENT

Mon, 09 Aug 2010 07:39:07 -0500

A Queens police officer has filed a sexual harassment suit against the New York City Police Department. She claims that a sergeant had asked her out several times, and when she rejected these advances, she alleges that he retaliated against her. “Almost every day he mentioned my lips, he said he was attracted to my shape and rubbed up against me,” the officer claims.

The tipping point came after an New York City Police Department talent show in which the officer was a participant. During the performance, she had a wardrobe malfunction and her pants accidently slipped off. Subsequently, the alleged perpetrator obtained a copy of the video of the performance and showed it to other officers on a laptop computer.

The officer also claims the New York City Police Department engaged in retaliation, which is illegal under New York employment law. She alleges that management took no action protect her from the sexual harassment and that the offender was allowed to take out his frustration on the youth programs the plaintiff ran - even taking away the police van used to transport kids. The plaintiff was eventually transferred out of the youth officer job. She now hopes to find relief through the judicial system.

JOB LOSS, UNEMPLOYMENT, AND THE ECONOMY

Fri, 06 Aug 2010 07:23:37 -0500

Recently release job figures show that the unemployment rate has held steady at 9.5 percent for the past three months, and many are not optimistic that it will improve in the second half of 2010. The economy recently suffered another blow as 143,000 temporary census jobs came to an end, bringing the net total of jobs lost in July to 131,000.

It seems that instead of hiring new employees, companies are expecting more of their current workers, as evidenced by the one-tenth of an hour increase in the average workweek and 4 cent raise in hourly pay.

NEW LAW MAKES DISCRIMINATORY COMMENTS EASIER TO ADMIT IN COURT

Wed, 04 Aug 2010 07:18:32 -0500

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

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

NEW YORK GENDER DISCRIMINATION SUIT SETTLES FOR $175 MILLION DOLLARS

Thu, 29 Jul 2010 08:04:05 -0500

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.

PAY DISCRIMINATION REMAINS A MAJOR WORKPLACE ISSUE

Mon, 26 Jul 2010 07:00:14 -0500

President Obama and other officials at the White House gave their support to the Paycheck Fairness Act. The Act will require businesses to inform the government about the payment of their employees as it relates to their gender, race, and national origin. This Act is an amendment to the 1964 Civil Rights Act and will aid the government in their efforts to end pay discrimination. The President stated that employment discrimination is harmful to American families, as well as the economy.

Currently, women only make 77 cents for every dollar earned by men. This difference is significantly greater for women of color. The Justice Department has pledged to increase their efforts of enforcement in order to help close the wage gap. A pilot program has been launched to organize the investigation and litigation charges against the state and federal employers that violate the Paycheck Fairness Act.

More information can be found here.

NEW YORK CITY POLICE DEPARTMENT SEXUAL HARASSMENT CASE

Thu, 22 Jul 2010 06:34:58 -0500

The City of New York City will pay a total of $300,000 to two police officers settling a sexual harassment lawsuit filed in connection with their claims of sexual harassment by a male supervisor. An attorney for the Plaintiffs stated, "Although our clients are satisfied that the litigation is over, it is further proof that the once-silent issue of same-sex harassment is on the rise."

The perpetrator of the harassment retired from the New York Police Department following a department trial in which he was found guilty of gesturing toward the officers in sexually suggestive ways and simulating a sexual act in their presence.

Additional information can be found here.

THE UNITED STATES SUPREME COURT TAKES ON EMPLOYER LIABILITY

Tue, 20 Jul 2010 08:31:09 -0500

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

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

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

Further information can be found here.

HUMAN RIGHTS PROTECTIONS IN NEW YORK UNDER THE DOMESTIC WORKERS BILL OF RIGHTS

Mon, 19 Jul 2010 07:21:37 -0500

New York became the first state to enact legislation granting workplace rights to domestic workers, passing the Domestic Workers' Bill of Rights on July 1, 2010. The bill was passed in part due to a fierce lobbying effort by Domestic Workers United, a group organized ten years ago to protect the rights of nannies and other household laborers in the New York area.

The bill provides domestic workers, a previous unregulated class of employees, with many of the same basic labor protections that have been available to other professions for over a century. These basic protections include setting a 40 hour work week (44 hours for live-in workers), providing for mandatory overtime compensation, 24 consecutive hours off per week, and three paid days off each year. Critical provisions provide domestic workers with recognition under New York’s Human Rights Law and protection from discrimination, sexual advances, and harassment by employers.

More information can be found here.

NEW YORK CITY LAW FIRM IN OVERTIME COMPENSATION SUIT

Thu, 15 Jul 2010 07:53:35 -0500

A complaint has recently been filed in federal court alleging that a major New York law firm violated federal labor laws when the firm failed to properly compensate him for overtime work. The plaintiff asserts that while working as a temporary employee at the firm, he regularly worked 50 hours a week and was not compensated in accordance with the Fair Labor Standards Act (the “Act”). The Act mandates that employers compensate all covered employees, generally those paid at an hourly rate, for overtime work at a rate equivalent to at least one and one-half times their regular rates of pay.

The plaintiff believes the firm is improperly compensating employees and seeks to bring a class action along with those similarly situated. The attorney for the plaintiff commented that many employees are hesitant to bring similar suits because they fear being blacklisted. He hopes that this suit inspires other employees to demand the overtime pay they have earned.

More information cab be found here.

For more information on the Fair Labor Standards Act and Federal overtime pay guidelines see http://www.dol.gov/dol/topic/wages/overtimepay.htm

THE GENETIC INFORMATION NON-DISCRIMINATION ACT AND SOCIAL NETWORKING SITES

Wed, 14 Jul 2010 07:39:27 -0500

In 2008, the Genetic Information Nondiscrimination Act (“GINA”) was passed, with the stated goal of “prohibit[ing] discrimination on the basis of genetic information with respect to health insurance and employment.” Section 203(a) of GINA makes it unlawful for employers “to fail or refuse to refer for employment . . . because of genetic information with respect to the individual,” “limit, segregate, or classify [those] individuals,” or “discriminate against [those] individuals.”

Title II, Section 202(b) makes it unlawful for an employer to request, require, or purchase genetic information with respect to an employee or family member of the employee. One such exception to this acquisition is “where an employment agency purchases documents that are commercially and publicly available . . . that include family medical history.”

The language of 202(b) makes it apparent that employers may not peruse an employee’s social network home page to acquire genetic information, even inadvertently. Central to this belief is the language of 202(b), specifically the terms “employment agency,” and “publicly available.” An “employment agency,” as referenced by GINA to Title VII, is “any person regularly undertaking...to procure employees to employers.” Thus, 202(b) apparently applies only to hiring and staffing agencies, with no room to allow employers the opportunity to purchase even publicly available documents. “Publicly available,” however, is not defined within GINA. A social website, arguably, is not a publicly available, depending on the particular options of the site in question. Facebook, for instance, requires users to pass friend requests and allows individual users to modify their page such that information is not readily available to certain individuals or groups of individuals. An individual who chooses to use Facebook may arguably choose to use it for those non-public features, and as such, intends the information housed on that site to be private. As such, it appears employers, and even employment agencies, unlawfully acquire genetic information under GINA when they find it on an employees social networking homepage.

For the Text of GINA, see: http://www.eeoc.gov/laws/statutes/gina.cfm

CONGRESS CONSIDERS AMENDING THE AGE DISCRIMINATION IN EMPLOYMENT ACT

Wed, 07 Jul 2010 08:57:29 -0500

An employee ranked in the top third to fifth percentile in his annual review and eventually rose to become Administration Vice-President in a state governmental agency. After being demoted in 2000 and 2003 and being replaced by someone younger, Gross alleged that he had fallen victim to age discrimination. However, the Supreme Court ruled that if factors other than age were involved, the employee has to prove that age was the determining factor in an alleged act discrimination. If age was not found to be a determining factor, the employee will have no such right to sue.

Congress is now attempting to undo the ruling by amending the Age Discrimination in Employment Act through H.R. 3721 - Protecting Older Workers Against Discrimination Act. This bill would apply a lower standard or proof and authorize the “mixed motive” cases, (instances that do not involve age as a determining factor) in Title VII of the Civil Rights Act with regard to age discrimination in the workplace.

The Civil Rights Act also protects individuals from employment discrimination the basis of race, color, national origin, sex or religion. If the bill is passed, the burden of proof will be shifted from the employee to the employer, and it would be the second time Congress responded to a Supreme Court decision related to employer discrimination in the last two years. The first was the Lilly Ledbetter Fair Pay Act of 2009, affecting equal pay lawsuits based on sex.

MEDICAL STATUS DISCRIMINATION AS A CAUSE OF ACTION

Tue, 06 Jul 2010 08:50:03 -0500

An employment discrimination lawsuit against Wal-Mart was recently filed after the Plaintiff was terminated because a drug test found marijuana in his system. The plaintiff has a prescription to use medical marijuana legally under a Michigan state law to alleviate pain he suffers from due to sinus cancer and an inoperable tumor. The Plaintiff rose from an entry level employee to a store manager and was named Associate of the Year in 2008.

It appears there has been a rise in terminations as a result of discrimination against employees who legally use medical marijuana. Most state statutes have protective provisions to prevent discrimination or unfair treatment by employers towards patients. As medical marijuana laws are being enacted across the country, most recently in New Jersey, courts are likely to notice a new type of employment discrimination claim - medical marijuana patient discrimination.

Additional information can be found here.

COMPLAINTS OF AGE DISCRIMINATION INCREASING

Tue, 29 Jun 2010 13:55:14 -0500

In this period of a recession, age discrimination complaints increased by 33% according to the Equal Employment Opportunity Commission. Older workers are finding it more difficult to be hiredor keeping jobs. The Bureau of Labor Statistics found that it takes an average of 44.5 weeks for workers between the ages of 55 and 64 to find a new job compared 35.1 weeks for the population as a whole.

Trying to overcome age bias hurdles, older workers may edit their resumes down to mask their age and experience when they apply for jobs below their level. While this tactic may get older workers an interview, interviewing with a much younger employer may put a halt to getting the jobs. Younger managers can be intimidated by older workers with more experience and may feel they have difficulty in supervising older workers.

Additional information on this issue can be found here.

AGE DISCRIMINATION AND POVERTY AMONG OLDER INDIVIDUALS

Mon, 28 Jun 2010 06:21:16 -0500

Increasing unemployment has resulted in more and more seniors struggling to make ends meet. Poverty amongst the elderly is due in part to the rising number of layoffs during the recent economic downturn. Age discrimination cases have been on the rise as well.

Poverty amongst the elderly is a significant problem in the United States today. The AARP reported that nearly 10% of adults aged 65 and older live in poverty. Additionally, nearly 4 million older Americans do not have enough money to pay for their basic needs.

The elderly poverty problem has been compounded by the fact that many seniors are unaware of benefits available to them. Many programs exist which offer assistance for food, rent, and utility bills. Greater outreach will help struggling seniors take advantage of these needed services.