New York Employment Lawyers Blog

Berwyn doctor found guilty of sexually assaulting patient

Tue, 15 May 2012 10:48:32 -0500

A doctor was found guilty Monday of sexually assaulting a patient while he examined her for flu-like symptoms, according to the Cook County state's attorney's office.

After a four-hour deliberation, a jury at Cook County Criminal Court in Maywood found Ricardo Arze, 53, of Berwyn, guilty of criminal sexual assault, state's attorney's office spokesman Andy Conklin said.

The victim, who was 48, sought help from Arze at his office in 2005 after having flu-like symptoms, prosecutors said.

They said Arze sexually assaulted and inappropriately touched the woman while he examined her at an office. The victim later reported the assault to authorities.

The victim, who does not speak English, testified through a translator at the trial, which began May 1, according to the state's attorney's office.

The conviction is the first following an investigation that revealed that many other patients had a similar experience during examinations by Arze, according to the state's attorney's office.

Prosecutors have filed charges in cases involving 15 other victims. He also faces a separate charge of practicing medicine without a license after he allegedly continued to see patients after his license was suspended.

Arze was first arrested after he provided treatment to an undercover officer, according to the state's attorney's office. He was first charged in 2007 with battery after he allegedly fondled his patients.

A Tribune investigation in 2010 found that it took complaints of sexual assault from at least four patients before Arze was charged in Criminal Court and had his license suspended.

Arze faces up to 15 years in prison. He is scheduled to be sentenced June 4.

Investigations in the other cases continue. Arze is being held without bond, according to Cook County Sheriff's Office records.

State Court Upholds Gay Employee's Hostile Work Environment Claim

Tue, 08 May 2012 10:42:45 -0500

In its first ruling on the issue, the Connecticut Supreme Court has upheld a hostile work environment claim brought by a gay employee.

In its unanimous Friday ruling in Luis Patino vs. Birken Manufacturing Co., the court upheld a jury's award of $94,500 in punitive damages against the Bloomfield, Connecticut, firm.

Patino, who had worked at Birken as a machinist from 1977 until his November 2004 termination, said he was subjected to years of derogatory slurs for homosexuals in Spanish, Italian and English.

According to the ruling, the company's responses to Patino's complaints included a letter from Gary Greenberg--then the company's vice president and general counsel, and now its president--in which he recommended Patino be evaluated by a psychologist "because the plaintiff's job required him to work with precision instruments and he thus posed a safety risk to others when his mental facilities were compromised."

In its ruling, the Connecticut high court said the issues raised by the company in its appeal were that state law does not provide for hostile work environment claims; even if such claims could be brought under state law, the plaintiff presented insufficient evidence to support the jury's finding of a hostile work environment; and the award was unsupported by the evidence and was excessive.

In rejecting all of Birken's arguments, the court said that state law makes it illegal to discriminate against individuals "in terms, conditions or privileges of employment" because of the individual's sexual orientation.

The legislature's use of that phrase "evidences its intent to permit hostile work environment claims where employees are subject to sexual orientation discrimination," the court ruled.

Commenting on the ruling, Patino's attorney, Jon L. Schoenhorn, of Jon L. Schoenhorn & Associates L.L.C. in Hartford, Connecticut, said the ruling "is a sweeping decision supporting workers" that "puts employers on notice--not just in sexual orientation cases, but in any case where there's a hostile work environment on any identifiable class."

Schoenhorn said, "This is the first appellate-level case in the country that extends hostile work environment (claims) to the area of sexual orientation."

Commenting on the ruling, defense attorney Daniel L. Schwartz, a member of law firm Pullman & Comley L.L.C. who was not involved in the case, said he is unsure as to whether there have been any other state Supreme Court rulings on this issue, but it is "certainly one of the first of its kind in the nation."

Schwartz said Connecticut "has had its anti-discrimination laws regarding sexual orientation on the books for some time, so it's sort of a natural evolution for these types of court decisions to see a court have to address that, given how developed to the law is starting to become in that area."

Schwartz said Patino "certainly broadens the state's sexual orientation anti-discrimination laws to include hostile work environment claims, and in essence" calls for them to "be treated as gender-hostile work environment claims as well."

The ruling "gives some teeth to the advice that many employers are prone to follow anyway, which is barring harassment in the workplace isn't just about gender any more. It covers all types of discrimination," including sexual orientation discrimination, he said.

Greenberg said in a statement, "We are disappointed with the court's decision. Birken Manufacturing Co. prides itself on its ethics, integrity and reputation. Our company's history and longevity in this community is a testament to our business practices and corporate record. We value our workforce and will continue to diligently work to protect our employees against discrimination."

The Dark Side of social media: Age Discrimination

Tue, 01 May 2012 10:28:41 -0500

The technology boom is not for everyone. When it comes to thwe technology sector, experts say if your over 35 or 40, you are pretty much over the hill. And if you look at the hiring practices at some of the valley's hottest Internet and social networking companies, it's hard to overlook the cold hard reality that age discrimination is prevalent.

Never mind that job discrimination of people over 40 is illegal. It's just really hard to prove, primarily because the salary differential between someone right out of school and someone with 10 to 20 years of experience is likely to be huge and there's no law against employers hiring less expensive labor to save money.

Still, the evidence is overwhelming.

According to a New York Times article, workers over 35 reguarly face discrimination by technology companies. According to PayScale, which has the world's largest employee compensation database, the median ages of employees at Apple, Google and Facebook are 33, 31 and 26, respectively. Contrast that with HP and IBM, both of which have a median employee age of 44. That's an extreme gap.

Sexual Harassment aimed towards Females in the workplace

Mon, 30 Apr 2012 12:39:54 -0500

Nine in ten women have sufferwed some form of sexual discrimination in the work place, a study has found. A vast majority of women workers have experienced "gender harassment", which includes offensive sexist remarks or being told that they could not do their job properly due to their gender or sex.

This more common, low level sexist behaviour is just as damaging and distressing as forward advances, experts say.

The researchers found that 10 percent of the women surveyed had experienced the most severe form of harassment, in which they were promised promotion or better treatment if they were "sexually cooperative".

The study questioned women in two male dominated environments - the U.S. military and the legal profession. It found that although few were subjected to actual advances, such as being groped, 90 percent had been subjected to gender harassment. This included offensive remarks about being female, their appearance, body or sexual activities.

The findings, in Springer's Journal of Law and Human Behavior, concluded that harassment victims fared poorly at work.

Wrongful Employment Terminations Based on Illegal Retaliation

Mon, 23 Apr 2012 11:54:04 -0500

Retaliatory employment terminations are fast becoming the terminations creating the greatest legal exposures for employers with past or future lost wages, or income, health insurance, retirement benefits, and pain and suffering or general damages

In general, retaliatory employment terminations arise when employers fire an employee after that employee has engaged in legally protected activity. Some of the more common legally protected activities forming the basis for retaliatory employment terminations are filing a worker's comp claim, reporting sexual harassment, reporting discrimination of any kind,failure to pay overtime along with many other legally protected activity.

Adverse employment action is not limited to termination of employment, but includes demotions, transfers, reduction in pay, and elimination of bonuses.

Employers are advised to always document well the reasons for the personnel actions it implements even when the employee is at will.

Any time employers are concerned that their termination of any employee may give rise to a retaliatory employment termination claim, consulting with a labor lawyer is always advisable.

Deaf library clerk sues alleging wrongful termination

Mon, 16 Apr 2012 11:04:31 -0500

A deaf woman with cerebral palsy is suing the city of Huntington Beach, California saying she was wrongfully fired from her job as a library clerk for over 30 years.

A response from the city lists more than 25 reasons that the city cites is not responsible for the women's firing, including saying the woman displayed violence in the workplace and did not go through proper channels to report any alleged discrimination or harassment.

Merrie Sager, a 32 year old employee of the library is suing for lost wages and emotional distress. Sager filed a discrimination complaint to the California Department of Fair Employment saying the library management was no longer willing to accomodate her disabilities and her termination was retaliation for her complaints about increasing failures to accomodate her.

Sager says in the lawsuit that she fully disclosed her disabilities to the library when she was hired in 1978. Then-library manager Ron Hayden ensured that Sager received "reasonable accomodations. Hayden retired in 2009 and the new library manager, was less willing to accomodate her. Sager was also met with frequent accusations of performance deficiencies and misconduct under her new manager.

Sager was fired on August 30, 2010. She filed a discrimination complaint with the state in March. The agency closed the case three months later and issued her a right-to-sue notice.

Sexual Harassment Still Prominent in the Workplace

Mon, 09 Apr 2012 11:41:02 -0500

Want to hear a group groan throughout an office? Mention a mandatory sexual harassment meeting. "Noone ever wants to sit throught that 3 hour seminar of old videos and lectures.

And yet sexual harassment continues to be a prominent force in the workplace. And no, it is not confined to politicians, members of the clergy, athletes or movie stars.

According to an AOL jobs survey, one in six people has been sexually harassed in the workplace. Out of those harassed, 43% say it was a manager and 51% percent say it was from a peer. Only 35% of people harassed reported it; women (47% percent) are more likely to do so than men (21%).

So whta exactly is considered sexual harassment ? It is defined as when one employee makes continued, unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee against his or her wishes.

These can include: unwanted jokes, gestures, offensive words on clothing and unwelcome comments; touching and any other bodily contact such as patting a coworkers back, grabbing an employee around the waist, or interfering with an employee's ability to move; repeated requests for dates that are turned down, or unwanted flirting; transmitting or posting e-mails or pictures of a sexual or degrading nature; displaying sexually suggestive objects, pictures or posters; playing sexually suggestive music, etc.

There is now a 97% compliance rate among companies for mandatory sexual harassment training. Yet, according to the EEOC tens of thousands of cases are filed each year and millions in damages are recovered.

Sexual harassment against men is also an issue, yet many men are hesitant to pursue charges.

So, what do you do if you are experiencing any of the issues mentioned here? Many companies have written policies requiring that any complaintbe brought immediately to the attention of the HR department.

Are dirty jokes around the water cooler off limits? Is a swuisuit calendar inappropriate in the workplace?

Mon, 02 Apr 2012 10:41:35 -0500

When the Supreme Court first declared sexual harassment illegal more than a decade ago, the immediate result was confusion and lack of understanding.

The answers weren't easy because the court's opinion provided few details. That job was left to the lower courts, which have made some different conclusions about what constitutes sexual harassment and when a company is responsible.

As the issue of sexual harassment has been a dominant force on the front pages this year, it has been a fixture in the Supreme Court. The laws of sexual harassment has developed along two seperate trackssince the Supreme Court said in 1986 that it violated Title VII of the Civil Rights Act. This law prohibitsemployers from discriminating against workers because of their race, sex, religion and national origin.

So, if a superior uses a job benefiton whether an employee provides sexual favors, the company is liable. This kind of harassment is known as quid pro quo, which means this for that - such as job benefits for sex. This is illegal!

Tilted Kilt is sued for sex harassment

Fri, 30 Mar 2012 16:01:35 -0500

Over a dozen women who have worked at Tilted Kilt have filed a sexual harassment lawsuit against the Celtic-themed sports bar, known for their waitresses who were skimpy next to nothing outfits.

Last June, the workers filed a sexual harassment complaint with the US Equal Employment Opportunity Commision, the first step towards filing a lawsuit. Last week, they received "right to sue" letters from the EEOC.

he women claim that one of the restaurant's managers and owners created a sexually hostile, offensive and degrading work environment that was on-going and lasted for the entire length of plaintiff's employment. This behavior was unwelcomed.

The lawsuit lists nearly thirty examples. Besides sexual harassment, the suit also alleges
retaliation and intentional infliction of emotional distress, saying that workers who complained received limited or poor shifts.

The women are seeking compensatory and punitive damages.

Does an Employer Violate the FMLA when an Employee Answers E-Mail or Telephone Calls while on Leave?

Sun, 25 Mar 2012 15:49:11 -0500

In this situation, what an employer is worried about is FMLA "interference" - the idea that the employer is denying the employeee FMLA benefits to which he otherwise was entitled.

In summary, an employee is unlikely to establish an FMLA interference claim simply because he responds to some e-mail and a few phone calls during leave.

Generally, courts find that fielding occassional calls and e-mails that relate to your job while on leave is a "professional Courtesy" that does not interfere with FMLA leave. Therefore, a few work related communications likely will not constitute interference with an employees FMLA rights As one federal court in New York put it, when an employee is passing on "institutional knowledg" or providing closure on open assignments , employers do not violate the FMLA.

Sexism - Gender Discrimination

Tue, 20 Mar 2012 15:28:14 -0500

Sexism, or gender discrimination, is present everywhere, in every culture, in every country. The terms "sexism" or "gender discrimination" basically means that prejudicial treatment of a group or person due to their gender or sex. It involves a reinforcement of behavior and attitutde on the basis of traditionally stereotypical roles people have in the society we live in. Gender discrimination can involve a whole array of issues, from unequal pay to women being portrayed as sexual objects in the media to wives being beaten up by their spouses. While in theory gender discrimination can affect both men and women, however,it iswomen who have been at the receiving end through the ages and across cultures, since most cultures in the world are male dominated.

EEOC Sues Albuquerque Dealership for Sexual Harassment

Thu, 15 Mar 2012 14:55:07 -0500

The U.S. EEOC has sued Pitre Inc, an New Mexico Buick - GMC dealership, alleging it subjected a group of men to sexual harassment for more than ten years.

In the suit, the EEOC says dealership managers "created a hostile work environment" by letting lot attendant James gallegos sexually harass male co-workers even after the men complained. The suit also alleges that managers retaliated against men who reported incidents to the EEOC.

The EEOC lists many incidents of harassment. For example, Gallegos allegedly "wresteled down employees to touch their private parts," and exposed his genitals.

It is particularly alarming when harassment of this nature continues for such an extended period of time with the owner and management's knowledge, EEOC lawyer Mary Jo O'Neill said in a statement.

What "Hostile Work Environment " Is and What it Is Not

Sat, 10 Mar 2012 14:21:47 -0500

Title VII's broad prohibitions against discrimination specifically cover "hostile environment" when the hostile environment is motivated by animosity based upon sex, race, color, national origin or religion (the same prohibition applies under different legislature for age, and disability).

Generally, the action of the few ignorant, arrogant or obnoxious employers that is not motivated by the "supsect" classes referenced above will not supprot a lawsuit.

In the event that a person has made false statements defaming another's character, there may be a cause of action for defamation/libel. Finally, keep in mind that unless you complain about one of the suspect classifications, your employer may terminate you for complaining, or for no reason at all(called at-will employment).

Religious Discrimination Complaints on the Rise at Work

Mon, 05 Mar 2012 14:03:18 -0500

Complaints of religious discrimination at work have increased 87 percent in the past decade -more than four times the increase of any other type of complaint, according to the U.S. Equal Employment Opportunity Commission.

Expressions of religion at work whether from an employee, supervisor, companyowner, or even a customer are a tricky line to walk because an employee could claim harassment or discriminationfrom any one of them.

It's often a very fine line. For example, reguarly conducting a morning prayer might not be enough to warrant a claim of religious harassment from an employee. But regularly
e-mailing or lecturing an employee about their faith or lack of it - especially by a supervisor can land a company in hot water.

The EEOC reccomends training sessions to fully undertsand the disruption posed by religious expression and the need for all employees to be sensitive to the beliefs or non-beliefs of others.

Pregnant, and Pushed Out of a Job

Thu, 01 Mar 2012 12:18:14 -0500

Few people realize that getting pregnant can mean losing your job. Just imagine a woman who, eight months pregnant, is fired from her position because she needed a few extra bathroom breaks. That's what happened to Patricia Leahy. In 2008 a federal judge in Brooklyn ruled that her firing was fair because her employers were not obligated to accomodate her needs.

This happens everday to pregnant women in the United States, and it happens thanks to a gap between discrimination laws and disability laws.

Federal and state laws ban discrimination against pregnant women in the workplace. And amendments to the Americans With Disabilities Act require employers to provide reasonable accomodations to disabled employees who need them to do their jobs. But because pregnancy itself is not considered a disability, employers are not obligated to accomodate most pregnant workers in any way.

As a result, thousands of pregnant women are pushed out of jobs that they are perfectly capable of performing -either put on unpaid leave or simply fired-when they request an accomodation to help maintain a healthy pregnancy.

Three -quarters of women now entering the work force will become pregnant on the job, yet holes in our civil rights laws leave this enormous class without the right to modest accomodations that protect them. No pregnant woman in this country should have to choose between her job and a heqalthy pregnancy.