The Facts of the Ames Case

The plaintiff in the Ames case is Marlean Ames. She is a heterosexual woman who worked for the defendant-employer, Ohio Department of Youth Services. Ames started work in 2004 as an executive secretary and was eventually promoted to the program administrator.

In 2019, Ames applied for a new management position. The department interviewed her, but ultimately hired a lesbian woman for the job. Further, a few days after she interviewed for the job, the department demoted her causing a significant cut in pay. The department hired a gay man to replace her as program administrator. Ames then filed a lawsuit under Title VII alleging she was discriminated on the basis of her sexual orientation.

The Lower Courts Applied a Background Circumstances Analysis to Dismiss Ames’s Case

At the trial court, the employer moved for summary judgment asking that the case be dismissed. The court applied a “background circumstances” test. The test requires the employee to present evidence suggesting that the employer was the rare employer who discriminates against members of a majority group. The court determined that Ames failed to establish this evidence and it dismissed the case.

Ames appealed to the Sixth Circuit Court of Appeals. But, the court agreed that the trial court correctly dismissed the case. The Sixth Circuit ruled that since Ames is a straight woman, she was required to meet a heightened burden. The Sixth Circuit discussed the background circumstances standard as requiring evidence that the employment decision was made by a minority group or statistical evidence which would support a pattern of discrimination. Since Ames presented neither, the employer was entitled to have the case dismissed.

The Supreme Court Unanimously Rejects the Background Circumstances Standard

After the Sixth Circuit, Ames appealed to the United States Supreme Court. The Supreme Court, in a unanimous decision, rejected the background circumstances standard used by the Sixth, Seventh, Eighth, Tenth, and D.C. Circuits. To reach its decision, the Supreme Court referred back to the framework used to analyze all discrimination claims. Known as the McDonnell Douglas burden shifting test, the first part of the test requires the plaintiff to pass an initial burden of establishing a prima facie case of discrimination. If established, then the employer must articulate a non-discriminatory reason for the employment decision. Then, the burden shifts back to the employee to show that the business is reason is pre-text for discrimination.

The Supreme Court determined that the Sixth Circuit’s approach imposed an additional burden on the plaintiff, requiring proof of the background circumstances. The Supreme Court ruled that this burden is not correct based on the text of Title VII and cases interpreting Title VII.

For starters the Court noted that Title VII’s text makes no distinction between majority groups and minority groups. Rather, the statute prohibits discrimination against “any” individual.

Further, the Court’s history of interpreting Title VII does not support the background circumstances approach. In 1971, the Court ruled explicitly that Title VII protects minority and majority groups. Similarly, in 1976, the Court outright rejected the notion that Title VII’s protection do not extend to white employees, i.e. a majority group.

The Court summarized its history of Title VII by noting that it had never indicated that the standard for proving discrimination should vary based on whether the plaintiff is in a majority or minority group. Justice Jackson, writing for the Court, ruled that the background circumstances standard, flouts this interpretation, so it is wrong.

Implications for Future Cases

The Ames decision is a win for employees. It confirms that so-called reverse discrimination claims are viable. More importantly, the decision rejects the heightened standard imposed by some jurisdictions to prove such claims. Reverse discrimination claims can be proven using the same framework which has long been applied to all discrimination claims.

If you have questions about the Ames decision, reverse discrimination, or any other kind of discrimination, contact one of our employment discrimination lawyers at Famighetti & Weinick PLLC. Our phone number (631) 352-0050.

History of the Americans with Disabilities Act

The Americans with Disabilities Act prohibits employers from discriminating against employees with disabilities. The ADA covers individuals who can perform the essential functions of their job position with or without a reasonable accommodation. Put another way, before a court determines an employer refused to provide an accommodation to an employee, the court must determine whether the employee could perform the essential job functions with or without a reasonable accommodation.

Facts of the Tudor Case

In the Tudor case, the plaintiff-employee worked for a public school district as a math teacher. The employee suffered from post-traumatic stress disorder, arising from being a victim of sexual harassment and sexual assault in a previous workplace. Her symptoms included neurological impairments and stuttering.

According to the court’s decision, Tudor’s symptoms escalated in 2008 reaching a point where therapy and medication could not control them. Her therapist recommended that she take a 15 minute break in the morning and afternoon each day, when she was not overseeing students. The school district agreed and Tudor used the breaks to leave the workplace, where her symptoms were triggered.

In 2016, the school’s administration changed. Following the change, the school prohibited teachers from leaving school grounds during prep periods, the time when Tudor would take her off-premises 15 minute break. Nonetheless, Tudor tried to leave campus, but was reprimanded for insubordination. The school further told Tudor that the information on file concerning her accommodation was insufficient.

Tudor took a leave of absence to treat her symptoms. Upon her return in 2017, the school granted her a break in the morning, and an afternoon break only on days when a librarian could watch her students. On the days when a librarian wasn’t available, Tudor couldn’t take her break.

In the 2019-20 school year, no school employees were available to cover Tudor’s afternoon break. Tudor left school grounds anyway, and sued the school district alleging that the failure to provide her the 15 minute afternoon break violated the ADA. She also alleged it violated the New York State Human Rights Law, but for reasons not stated in the decision, she dismissed those state law claims.

Once in court, the trial court dismissed Tudor’s claims. The judge determined that even though the school did not give her an accommodation, Tudor was able to do the essential functions of her job, so she did not maintain a lawsuit against the school. The court dismissed the case and Tudor appealed.

The Appellate Court Reverses the Trial Court Because it Misapplied the Law

The Second Circuit ruled that the trial misinterpreted the law concerning reasonable accommodations. The Court started with the well-settled principle that when interpreting a statute such as the ADA, courts should look first to the text of the statute. Looking at the ADA’s text, the Second Circuit concluded that the law requires employers to provide reasonable accommodations to employees with a disability, whether or not the employee is capable of performing the essential job functions with or without the accommodation. Putting it another way, the Court said that the fact that an employee can perform job responsibilities without a reasonable accommodation doesn’t mean that she must.

The Court found further support for its conclusion in other areas too. First, the Second Circuit ruled that its interpretation aligns with the interpretations from other appellate courts in the country. But, the Court also determined that its interpretation aligns with the ADA’s requirement that it broadly interpreted to effectuate its remedial purpose. Requiring that an accommodation be strictly necessary would conflict with this purpose.

For all of these reasons, the Second Circuit Court of Appeals reversed the decision of the trial court and remanded the case for further proceedings.

In sum, the Tudor decision stands for an important principle of disability discrimination law: an employer violates the law when it refuses to provide an accommodation to a disabled employee, even if the employee can perform the job’s responsibilities without an accommodation, unless an accommodation would be a hardship on the employer.

If you have questions about disability discrimination or failure to accommodate claims, contact an employment discrimination lawyer at Famighetti & Weinick PLLC. Our employment lawyers are available (631) 352-0050.

Recently, the Second Circuit Court of Appeals in New York issued a decision which highlights the uncertainty of jury trials. Perhaps more than any other factor, a jury is an unknown factor. Lawyers may be familiar with a particular judge in a case and may have formed a belief about the judge’s inclinations about ruling on certain matters based on the judge’s prior decisions and prior interactions the lawyer may have had with the judge.

But, the makeup of a jury is not known until the case gets to trial. Even then, the process of “picking a jury”, known as voir dire, offers only a small glimpse into a juror’s background. Lawyers don’t have the benefit knowing how the jurors decided other cases, often because the jurors have never served on a jury trial which reached a verdict.

In counseling clients about the risks of litigation, no client wants to accept that there are reasons to settle. Every client believes that he or she is right and that because they’re right, they’re going to win their case. But, the case Qorrolli v. Metropolitan Dental Associates, is a glaring example of the risks of a jury trial.

Qorrolli was an employment discrimination case. Specifically, and in brief, the plaintiff worked as a dental hygienist. She alleged that throughout her employment, her supervisor sexually harassed her. The alleged harassment included touching of her leg and upper thigh.

Based on the conduct and her termination which came after she allegedly complained about the harassment, the plaintiff filed a lawsuit in federal court. The case reached a trial. The jury returned a verdict in the plaintiff’s favor, awarding $575,000 in compensatory damages, and $2 million in punitive damages.

This should be considered a good outcome for the plaintiff. But, after the jury trial, the defendants asked the court to hold a new trial. The defendants argued that they were entitled under law to a new trial because the plaintiff introduced inadmissible evidence at the first trial and the jury’s award showed that it disregarded the judge’s instruction that it should disregard the inadmissible evidence.

Put another way, not all evidence in a case may be considered by a jury. Rules of evidence exist to control which evidence a jury may hear. Sometimes, usually inadvertently, a jury may hear evidence which the rules of evidence prohibit them from considering. In those situations, a judge will instruct the jury to disregard the inadmissible evidence. But, even with such an instruction a jury can’t un-hear what it’s heard.

In Qorrolli, the judge agreed that defendants deserved a new trial. The appellate court ruled that the judge properly used her discretion in granting the new trial. Indeed, the appellate court noted that the trial court properly determined that the jury’s award was not in line with other cases. In other words, even though the jury issued an award of damages, that is not the end of the line. The judge can still review the award to ensure that it comports with awards that are allowed by law.

So, the parties conducted a second trial. After the second trial, the jury still returned a verdict for the plaintiff, but this time, it awarded just $1, called nominal damages.

Sames case, two different juries, two remarkably different outcomes. The plaintiff went from more than $2.5 million in damages, to a dollar.

This is not to say that every case must or should settle. Rather, the point is the risk of litigation is often underappreciated by litigants. The Qorrolli case highlights that a jury can come to a very different conclusion based on the very same facts. Further, even after a jury’s verdict, a judge oftentimes has a role in determining whether the verdict is within the bounds of what the law allows.

And the lesson is not solely for plaintiffs. Defendants may win at trial, but a plaintiff appeals a ruling or rulings made during the trial. If an appellate court agrees and grants a new trial, the plaintiff may win that second trial.

In sum, it’s not unusual for clients to believe that they will win their case. It’s actually quite natural. The Qorrolli case is shining example of the unpredictability of jurors. A good lawyer will counsel clients about the risks of litigation to help the client formulate a strategy which will help the client meet their goals, while mitigating the risks of litigation uncertainty.

If you have questions about litigation risk, jury trials, or settlement considerations, contact a lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050. If you enjoy reading our blog content, please be sure to follow our social media to stay up to date on our most recent posts.

Indeed, the Qorrolli case has another interesting legal point concerning whether and when an employee’s workplace complaints can trigger retaliation protection. We’ll address that question in another upcoming blog.

The FMLA allows qualified employees to take up to 12 weeks of unpaid leave from work, to care for themselves, or a family member, who has a serious medical condition. The law protects the employee’s job, meaning the employer must maintain the employee’s job while the employee is out on leave. In other words, when the employee’s leave is complete, the employer must generally allow the employee to return to work.

The FMLA specifically prohibits employers from doing three things: interfering with, restraining, or denying an employee’s rights under the law. The principal question in Kemp was whether an employer interferes with an employee’s FMLA rights when it discourages, but does not deny, an employee’s request for FMLA leave. Indeed, employers often try to escape liability by arguing that it ultimately granted leave, even if it initially tried to deny it, or discourage the employee from taking it. The Second Circuit answered the question in no uncertain terms: Yes.

In Kemp, the employee argued that the employer discouraged her from using FMLA leave. The employer countered that ultimately, it approved the employee’s FMLA leave, therefore, it did not violate the statute.

The trial court agreed with the employer. The court held that to prove a violation of the FMLA, the employee needed to prove that she was denied benefits to which she was entitled. Since Kemp’s FMLA leave was approved, her FMLA claim had to be dismissed.

The appellate court disagreed. It noted that its prior decisions held that an employer can violate the FMLA by either denying benefits or otherwise interfering with a benefit. Kemp solidified the legal theory that an employer can be liable for interfering with FMLA benefits, even when it ultimately approves FMLA leave.

Unfortunately for Kemp, the favorable decision on the substantive FMLA claim did not save her case. Ultimately, the appellate court ruled that the trial’s court decision to dismiss the claim should be upheld because the statute of limitations prohibited Kemp’s claim.

In Kemp, the Second Circuit ruled on another interesting question — when does the statute of limitations begin to run for claims under the New York State Human Rights law. The statute of limitations sets forth how long a plaintiff has to file a particular claim. For claims under the New York State Human Rights Law, the statute of limitations is three years. This means that claims must be filed within three years of the date from when they accrue.

The Kemp case had to determine the date when Human Rights Law claims begin to accrue. The question was whether they accrue from the date the employee receives notice that some adverse employment action will be taken, or the date when the action begins effective. The Second Circuit held that the claims accrue on the date the employee has notice of the employers “official position” on the employment decision. In Kemp, the employee did not file her claims before the statute of limitations expired, so the claims were dismissed.

Navigating the complex world of employee leave under the FMLA can be daunting. Additionally, available leave programs under New York State law add another layer of complexity. If you have questions about the Family Medical Leave Act (FMLA) or the New York Paid Family Leave law, contact a New York employment lawyer at (631) 352-0050 or visit our website at http://linycemploymentlaw.com.

In Muldrow, the female plaintiff was a plain clothes police officer assigned to a special Intelligence Division. By virtue of this assignment, Muldrow received what could only be reasonably viewed as employment benefits, though not in the traditional sense. Muldrow did not receive extra pay or better health care benefits. Rather, Muldrow received other perks such as FBI credentials and use of an unmarked police car which she could take home.

Eventually a new commander of Muldrow’s unit took over. According to Muldrow’s lawsuit, the new commander made comments suggestive of a sex based animus. For instance, he referred to Muldrow as “Mrs.”, rather than Sergeant, as was customary. Further, according to Muldrow, the commander transferred her out of the unit, in order to replace her with a male officer.

Indeed, the police department transferred Muldrow to a uniformed position in a precinct. Her pay and rank remained the same, but other aspects of her job changed. For example, instead of working alongside high ranking police officials in the Intelligence Unit, she supervised neighborhood patrol officers and performed mundane administrative duties, including reviewing reports and arrest records. Further, she lost her FBI credentials and use of the unmarked car, and instead of working a regular workweek schedule, she worked a rotating schedule which included weekends.

Muldrow alleged that the transfer constituted unlawful employment discrimination based on sex, in violation of Title VII, the federal workplace anti-discrimination statute. In court, however, Muldrow faced an obstacle to proving her case. Across the country, appellate courts have been ruling that to prove a discrimination case, employees must prove that they faced an employment action which was “significant,” “material,” or some other similarly heightened level of harm. To meet this standard, courts have generally required some showing of a change to the employee’s pay, benefits, or other compensation.

Indeed, the trial court dismissed Muldrow’s case, holding that her transfer was not significant because it did not produce a material employment disadvantage. The Eighth Circuit Court of Appeals agreed and held that because Muldrow did not and could not show the transfer caused a diminution to her title, salary, or benefits, she could not prove a discrimination case.

As observed by SCOTUS, courts which have applied the heightened significant harm standard have dismissed employment discrimination cases where an employee was assigned to work at a different job site next to a 14 x 22 foot wind tunnel, where a worker was assigned to a position which requires only nighttime work, and where a school principal was required to accept a position supervising fewer employees in a non-school based administrative role. In other words, SCOTUS was suggesting that these harms should be sufficient to support an employment discrimination case, but that courts improperly dismissed them.

In Muldrow, SCOTUS emphatically rejected this approach, noting explicitly that “this [Muldrow] decision changes the legal standard used in any circuit that has previously required ‘significant’, ‘material,’ or ‘serious injury.'” SCOTUS determined that nowhere in the text of the statute does Congress require that an employee show a harm which is significant. Admonishing courts which applied a showing of significant harm, SCOTUS noted that those courts added words to a law which was passed by Congress, and words which Congress did not include in the statute.

Instead of the significant harm standard, SCOTUS adopted a standard which now requires that employees simply show that they were treated worse because of sex, or because of another protected trait.

In Muldrow’s case, SCOTUS had no problem concluding that, based on the new and proper standard, Muldrow’s transfer was sufficiently disadvantageous to her, constituting worse treatment based on sex. In fact, Justice Kagan, writing for the majority, noted that Muldrow was worse off several times over.

In sum, Muldrow is remarkably important and momentous decision in the world of employment discrimination law. Countless cases have been dismissed over the years because Courts applied an improper heightened significant harm standard. Though those cases cannot now be resurrected, future plaintiffs will have an easier time establishing their employment discrimination claims brought under Title VII.

If you have questions about the Muldrow decision, the harm requirement for an employment discrimination claim, or about employment discrimination in general, please call one of our employment discrimination lawyers. The best number to use to contact us is (631) 352-0050. More information is available on our website. Remember to follow our social media to stay update on future employment law news.

In Bart v. Globus Corporation, the employer, Globus Corp., accused an employee, Elaine Bart, of falsifying food logs, maintained by the company to ensure health and safety. Globus fired Bart. Bart admitted that she violated the food log policy, but nonetheless, she alleged that the termination decision was made based on her gender. Accordingly, Bart sued Globus pursuant to, among other statutes, Title VII, the federal workplace anti-discrimination law.

To a layperson, this may seem like an open and shut case. The employer accused the employee of violating policy, the employee admitted to violating policy, and the employer fired the employee for violating the policy. How could this be unlawful discrimination then?

The answer is a complicated legal one. To put it simply, Congress has codified language in Title VII which allows for mixed-motive cases. This means that if an employer was motivated to fire an employee based on a discriminatory reason, the firing was unlawful, even if the employer also had legitimate, non-discriminatory reasons for the termination.

To understand mixed-motive cases, consider that you’re buying a house. You may like a particular house because it has three bathrooms, four bedrooms, a two-car garage, and granite counter tops in the kitchen. But, the house may also be in a great school district and this factor has motivated you to buy this particular house. All of these features of the house were part of the decision to buy the house, but you also ultimately decided to select this particular house, because of the school district. Thus, there are mixed reasons to buy the house – the number of bedrooms and bathrooms, granite, garage, — and the school district. The school district was a motivating factor to buy this particular house.

The same concept applies to discrimination cases. Title VII prohibits workplace discrimination based on characteristics such as sex, gender, national origin, race, and religion. An employer may decide to terminate an employee for many reasons, such as tardiness, poor performance, and/or insubordination. But, the if the employer also considered the employee’s race or religion when making the termination decision, it violated Title VII.

The difficulty comes in trying to find the unlawful reason. Rarely will an employer admit that it is discriminating against an employer. Over the years, courts have developed a test to analyze discrimination claims. Know as McDonnell-Douglas, this test first requires an employee to make a minimal showing of discrimination. Employees can do this with circumstantial evidence, such as showing that the employee has been treated differently than other employees outside of the protected class.

After meeting this burden, an employer can show that the employment decision was made for a legitimate, non-discriminatory reason. This is also a minimal showing. Then, the test moves to the “pretext” analysis, the heart of the issue in the Bart decision.

As observed by the Second Circuit, the pretext analysis has often been misunderstood and thus, misapplied, by trial courts. Some courts have required that an employee show that the employer’s “legitimate” reason for employment decision is false or merely a pre-text to cover up unlawful discrimination. As explained by the Bart decision, this application of McDonnell-Douglas is incorrect.

In Bart, the Second Circuit succinctly re-stated what an employee must show at the “pretext” stage of the analysis — plaintiffs need only show that the employer’s stated reason was not the real reason, even if the reason is true or factually accurate. In other words, an employee can show that the employer’s stated reason was not the whole reason, but rather that discrimination was “more likely than not” a factor in the decision, either in whole or in part. Notably, employees can make such a showing by relying on evidence it presented on its initial burden, and may not need to show any more.

Applying these principles to Bart, the Second Circuit noted that the employee produced evidence of gender-based animus towards her. A manager stated to her that he did not think women should be managers. Even though Bart admitted to violating company policy, it can also be true that she was terminated, in part, because of her gender. That possibility existed in the case because evidence showed that the decision-maker harbored a discriminatory animus, namely, the evidence of his gender based comments.

Discrimination cases are tricky because employers try to conceal their discriminatory motivations. Trained employment lawyers who understand the law can find the bits and pieces of evidence to establish an employment discrimination case.

If you have questions about proving an employment discrimination case, or about the Bart decision, contact a Long Island employment lawyer at (631) 352-0050. More information is available on our website at http://linycemploymentlaw.com.

The Freelance Isn’t Free Act

A hotly contested issue in employment law is whether workers are independent contractors or employees. Many employers try to categorize workers as independent contractors to avoid many of the legal obligations that come along with adding an employee to payroll. The Freelance Isn’t Free Act is an attempt to add some protections for independent contractors.

The Freelance Isn’t Free Act applies to “freelance workers.” Freelance workers are defined essentially as independent contractors, but the definition also includes independent contractors who operate under a corporate or trade name, not just under their individual name.

The Freelance Isn’t Free Act requires use of a written contract between the business and independent contractor. The contract is required when either (a) a single project on which the worker will work costs more than $800 or (b) within 120 days, the independent contractor provides multiple services which exceeds $800, collectively.

The law requires that the contract contain certain information, including: names and contact information for the worker and business; a description of the services to be performed; the rate of pay and the date on which payment is due; and a date when the worker must submit an invoice to the business in order to be paid on time. The law also requires that the business pay the worker pursuant to the contract, or no later than 30 days after completion of the work.

Like traditional employment laws, the Freelance Isn’t Free Act contains an anti-retaliation provision which prohibits businesses from discriminating or retaliating against workers who exercise or attempt to exercise their rights under the act. Businesses who violate the law may be subject to investigations by the Department of Law or may face civil actions brought by the worker. Workers have six years to file claims and may recover actual damages, double damages, and attorneys’ fees and costs.

Human Rights Law Statute of Limitations

The New York Human Rights Law is New York’s workplace anti-discrimination law. The law provided for confusing patchwork of statutes of limitations. A statute of limitation is the time by which a lawsuit must be filed for a particular type of claim. For example, generally in New York, to sue for a breach of contract the lawsuit must be filed within six years of the breach. To sue for injuries sustained from a car accident (negligence) the case must be started within three years of the injury.

Under the Human Rights Law, workers could either file a claim with the New York State Division of Human Rights, or file the case directly in court. If filing with the Division, the claim must have been filed within one year of the discrimination. Several years ago, that deadline was extended to three years, but just for sexual harassment claims. To file in court, the statute of limitations has been three years.

In 2024, the statute of limitations for all discrimination and retaliation claims filed in the New York State Division of Human Rights is now three years.

Confidentiality in Settlement Agreements

Several years ago, New York passed a law regulating confidentiality in settlement agreements arising from claims of workplace harassment. The law required that if confidentiality were included as part of the agreement (a) confidentiality would have to be the preference of the employee; (b) the confidentiality agreement would have to be in a separate document from the settlement agreement; and (c) the employee had to wait 21 days as a consideration period, before signing the agreement.

In 2024 amendments, the 21 day waiting period is waivable. However, this applies only in cases where the settlement is entered into pre-litigation. In addition, the law not extends to independent contractors, and it extends to all claims of discrimination, harassment, and retaliation, when the agreement requires liquidated damages for violation of a non-disclosure or non-disparagement provision, requires partial or complete forfeiture of a settlement payment for violation of a non-disclosure or non-disparagement provision, or where the agreement requires the victim to affirmatively state that he or she was not subject to unlawful discrimination.

Wage and Hour Law Round-up

• Salary basis test for exempt employees is increased from $1,125 per week to $1,200 per week
• Minimum wage increases: NYC, Westchester, and Long Island: $16.00 per hour (up from $15)
• Definition of clerical and other worker: executives, administrators, and professional employees must earn $1300 per week, instead of $900

Various Other Changes

• Social media law: Employers cannot demand applicants for usernames and passwords for social media accounts, or demand access to an employee’s social media accounts
• Height and weight discrimination is unlawful in New York City

If you have questions about these employment law changes, or about existing employment laws, contact a New York employment law attorney at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050 and our website is http://linycemploymentlaw.com.

2024 Employment Law Changes

The foregoing is taken from the filed charge of discrimination, and the Division’s investigation report:

F&W filed a charge of discrimination with the New York State Division of Human Rights (NYSDHR), on behalf its client, a former volunteer firefighter who applied to volunteer with the Ladies Auxiliary of the fire department. The NYSDHR is an administrative agency of the State which investigates claims of unlawful discrimination.

As alleged in the charge, the client, a male, had volunteered with a Nassau County fire department for many years. His wife and son were also members of the fire department. After a non line of duty injury, the firefighter resigned from the fire department.

The fire department ladies auxiliary is a sub-unit of the fire department. According to its by-laws, mothers, daughters, and spouses of firefighters can join the ladies auxiliary. The unit provides support to the fire department.

After resigning from the fire department, F&W’s client sought to apply for membership with the ladies auxiliary unit. The client made several requests for an application, but received no response. Eventually, the client was able to obtain an application. After completing the application, the Ladies Auxiliary asked the client to attend a general meeting so they could vote on his application. At the meeting, members asked the male applicant if he would have a problem wearing a skirt, which was part of the uniform. The vote ended in a tie.

Months later, the Ladies Auxiliary held another vote. This time, the vote resulted in a denial of the client’s application. In other words, the Ladies Auxiliary denied the male applicant’s membership. As alleged, this application was the only application denied in fifteen years.

After receiving the charge of discrimination from the NYSDHR, the fire department and Ladies Auxiliary made several legal arguments which they contended required that the case be dismissed. First, the fire department argued that the ladies auxiliary is a completely separate and distinct entity from the fire department. Based on this separation, the fire department argued it cannot be held liable.

Next, the fire department argued that Ladies Auxiliary members are not compensated, so the members are not employees. Because they are not employees, they are not protected by the employment laws which F&W alleged the Ladies Auxiliary had violated.

Finally, the Ladies Auxiliary argued that the vote was based on legitimate, non-discriminatory reasons.

F&W filed a rebuttal with the NYSDHR, arguing against each of the fire department’s and the ladies auxiliary’s arguments. Concerning the separate entity argument, F&W noted that the very same fire department had, in a previous matter for the NYSDHR, told the NYSDHR that the ladies auxiliary is indeed a sub-unit of the fire department. Thus, it could not argue in this case, that they are different.

Further, F&W pointed out that ladies auxiliary and fire department’s regulations are intertwined and show a high level of cooperation with one another. Moreover, the leadership of the ladies auxiliary is listed on the fire department’s website, showing their relationship.

On the question of whether the ladies auxiliary is covered by the Human Rights Law, F&W noted that law specifically applies to volunteer fire companies. Since the ladies auxiliary is a fire company, then the anti-discrimination laws apply to it.

Finally, F&W showed the circumstantial evidence of discrimination, including that the client was in all ways qualified to be a member, no non-female had ever applied for membership with the ladies auxiliary, his membership was the only one denied, and that members made sex-based comments at the membership meeting.

The NYSDHR Regional Director reviewed the arguments and determined the investigation supported that issues of fact exist concerning each argument. Accordingly, the Regional Director made a determination of Probable Cause. The case will be assigned to an administrative law judge who will hold a public hearing. A public hearing at the NYSDHR is akin to a trial. The judge will hear witnesses give sworn testimony and review evidence offered. Then, the judge will determine whether the Ladies Auxiliary and/or Fire Department are liable for sex discrimination. If so, the judge may also make an award of damages.

Famighetti & Weinick PLLC is a law firm experienced in representing volunteer firefighters on Long Island and in New York. The firm has represented fire department members from matters including 209-l hearings, First Amendment free speech issues, religious discrimination, and due process violations. To speak to an attorney experienced in handling volunteer fire department lawsuits, contact Famighetti & Weinick PLLC at (631) 352-0050. More information is available on our website at http://linycemploymentlaw.com.

Discrimination Case Against Volunteer Fire Department and Ladies Auxiliary to Proceed to Hearing Before Judge

Firm Celebrates a Decade of Selections by Super Lawyers Magazine

In 2012, Super Lawyers magazine first selected Weinick for its “Rising Star” list. The Rising Star list is reserved for lawyers who have been practicing for less than 10 years or who are under 40 years old. Super Lawyers’ patented selection process results in just 2.5% of the lawyers in the state being selected for inclusion. Weinick made the cut for inclusion on each list from 2012 to 2018.

By 2019, Super Lawyers added Weinick to its list of “Super Lawyers.” Using a similar selection process, just 5% of the lawyers in the state are selected to be listed as Super Lawyers. Weinick remained on the Super Lawyers list through 2022, marking this as the 10th year Weinick has been included in Super Lawyers magazine’s ranking of New York metro area lawyers.

Famighetti made his debut directly to the Super Lawyers list in 2014 and has remained on the list ever since. Thus, 2022 is the 8th consecutive year that Super Lawyers has listed Famighetti. As noted by Super Lawyers, Famighetti gained this recognition based on “professional achievement, peer recognition, and other distinguishing criteria.”

On his milestone selection, Weinick commented, “the primary focus of my work is to achieve great results for my clients, but of course, I’m very excited to also have been recognized by Super Lawyers over the past 10 years.” Weinick noted further that hitting the 10 year mark is not reason to “take it easy,” but rather is a reminder to make sure that he is “ready to prove his worthiness of recognition over the next 10 years and beyond.”

Famighetti similarly noted, “I work first and foremost for my clients, but professional recognitions such as the Super Lawyers nomination, are an added bonus.” Famighetti looks forward to building on the skills and knowledge which led to his eight Super Lawyers nominations adding, “I can’t be content to rely on the status quo. I have to build on the successes that I’ve achieved and I intend to do so.”

The Super Lawyers list will be published in an upcoming edition of the New York Times, with distribution to nearly 1.1 million readers. The Super Lawyers magazine will be distributed to nearly 106,000 lawyers in the New York Metro area.

F&W Opens Mediation Services Practice Area

In addition to the Super Lawyers announcement, Famighetti & Weinick PLLC is proud to announce the firm’s expansion of its practice areas. F&W is now providing mediation services, meaning the firm is available to provide a neutral mediator for dispute resolution services.

Mediation is an informal way to resolve disputes, including disputes which have escalated to lawsuits in court. More and more frequently, parties involved in a legal dispute are turning to mediation as a way to quickly and inexpensively resolve the dispute. In fact, even in instances when a lawsuit has been started, judges will often order the parties to try mediation early on in the case, to avoid the time and expense associated with drawn out litigation in court.

Though both Famighetti and Weinick have more than three decades of collective experience as advocates for parties in mediation, partner Matt Weinick is heading the mediation services practice area. The opening comes after years of preparation, planning, and work. Indeed, in 2019, Weinick underwent an intensive week long classroom training session which combined lecture with interactive skills sessions with role playing practice mediations. The training course is approved by the New York State court system.

In addition, Weinick was competitively selected for, and is participating in, an “incubator” program which is preparing him for nomination to the United States District Court, Eastern District of New York’s mediation panel. The program trains Weinick specifically to mediate federal cases filed in the Eastern District of New York. The program requires, among other things, that Weinick participate in mediating real cases pending in the EDNY. As he nears completion of the program, Weinick anticipates being sworn in to the mediator panel by a federal magistrate judge in early November.

On the expansion, Weinick said, “I really enjoy representing clients, but in some ways, helping both parties to a dispute find a reasonable compromise and a way out of their dispute, can be even more gratifying than arguing for just one client’s position.” Weinick continued, “Offering mediation services is really a way for the firm to help more people and to be a part of the future of dispute resolution.”

Having represented both plaintiffs and defendants throughout his career, this background distinguishes Weinick from many other mediators who typically spend careers representing only one side. On this characteristic, one senior mediator has described Weinick as having “a balanced perspective that is sometimes sorely missing among neutrals.”

To learn more about the firm’s mediation services practice area, visit the mediation services page of our website.

F&W is proud of these momentous achievements. To remain up to date on the firm’s news and to receive alerts about our blogs which discuss developments in employment law, be sure to like or follow our Facebook or Linkedin pages.

Employment Lawyers Selected to Super Lawyers List

During her time as an intern, Danielle has conducted research and drafted memoranda. Danielle has observed Mr. Famighetti and Mr. Weinick at consultations and arbitration hearings for labor and employment law topics. Additionally, Danielle assists Mr. Famighetti and Mr. Weinick by drafting intent to sue letters, complaints, rebuttals, and settlement agreements, along with writing blog posts on commonly asked questions by clients such as the NYC Mandatory Retirement Plan and the NY HERO Act.

During her time at Hofstra Law School, Danielle has achieved a GPA of 3.72 and is in the top 8.4% of her class. She also recently earned membership as a Staff Member on the Hofstra Law Review for Vol. 50. Danielle holds a Merit Scholarship and a Dean’s Honor Scholarship from Hofstra Law School. Throughout her first year of law school, Danielle also became an active member in the Hofstra Law Women’s club and the Public Justice Foundation. The Public Justice Foundation helps raise money and awards fellowships to students who devote their summers to working in an area of public interest and are unable to be paid while doing so. Danielle spoke with alumni, family members, and friends in order to raise money for the Public Justice Foundation.

Danielle graduated from Pennsylvania State University in May 2020 with a double major in Human Capital Management and Labor Employment Relations, and a minor in Business Law. During her time at Penn State, Danielle took on many leadership roles including a Project Manager of the Smeal Human Capital Student Consultants. This is a club that takes on real human resources problems by helping small businesses in the surrounding community. Danielle helped create an employee handbook and a new-hire guide for local businesses surrounding the university. Danielle was also the Director of Recruiting and Development for this club. This required her to inform potential new members of the organization and maintain current membership involvement. Danielle would also plan events with other organizations and guest speakers to build lasting partnerships.

Additionally, Danielle was involved in the Penn State THON, which is the largest student run philanthropy in the world. THON is a 48 hour dance marathon and raises money for children with pediatric cancer. Danielle served on a committee of twenty-five members to spread THON’s mission and play an active role in ensuring the success of THON’s year-long effort to raise money for children with cancer. Throughout the year, Danielle was a fundraising specialist for the committee and communicated with businesses as well as organizing events to raise money for the charity. Danielle organized a fundraiser to sell stickers, water bottles, and phone cases in order to raise money. On THON weekend, Danielle was responsible for helping distribute food and drink donations to the students who were standing for 48 hours. During Danielle’s last year at Penn State, THON raised over $10 million for children with cancer.

Danielle actively babysat during her time at Penn State University and Hofstra Law School. In her free time, Danielle enjoys spending time outside, hiking, reading, and watching Penn State sports.

In her future career, Danielle hopes to pursue a career in Labor and Employment Law assisting workers. Danielle’s motivations are geared toward helping people who are not able to help themselves

Famighetti & Weinick PLLC are experienced employment law lawyers on Long Island and the New York Hudson Valley. The firm is experienced in litigating employment law cases. Contact one of our employment attorneys at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.

Law student intern Danielle Jacobs

To be covered under the ADA, an individual must have a disability as defined by law. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. If an individual has a medical condition that does not meet this definition, then the ADA does not apply and the individual is not entitled to reasonable accommodations under the law and is not protected from discrimination based on the medical condition.

In 2002, the Supreme Court of the United States narrowly interpreted the definition. The Court determined that the words used by Congress, such as major and substantially, implied that disability is a demanding standard. The Court further held that to qualify as a disability, a person’s impairment must be permanent or long term.

Reacting to the SCOTUS ruling, in 2008, Congress amended the ADA. Among other things, Congress specifically noted that the substantial limitation requirement is not to be an exacting standard. Congress further instructed that the definition of disability should be broadly interpreted to allow for expansive coverage.

Moreover, the amendments rejected a timing requirement. Federal regulations implementing the amendments to the ADA noted that impairments which last less than six months can be substantially limiting, and thus can constitute a disability.

In its June 30th opinion Hamilton v. Westchester County, the Second Circuit Court of Appeals reviewed this history and noted that other jurisdictions across the country have applied these principles in cases before them thereby clearly establishing the law in those jurisdictions that the ADA amendments mean that impairments which may last less than six months can nonetheless qualify as a disability.

What does this ruling mean? The Hamilton decision is a good example. In Hamilton, the plaintiff was jailed at a county jail when he injured his knee, tearing the meniscus and dislocating his knee. The plaintiff had to use crutches to move around which caused issues for him because the jail was not well designed for inmates to get around with crutches. The plaintiff sued, alleging among other things, that under the ADA, the jail failed to accommodate his disability.

The lower court dismissed the plaintiff’s ADA claim. The court ruled that the temporary injury, to wit, the knee injury, does not qualify as a disability under the ADA. Since the plaintiff could not have a qualifying disability, he could not maintain any ADA claim against the jail.

On appeal, the Second Circuit reversed the lower court. The appellate court determined that the lower court committed error by holding that a temporary impairment can never constitute a disability.

The Second Circuit expressed caution, though. The court emphatically noted that while the lower court too rigidly applied a timing requirement for the inmate, that does not mean that the knee injury in question will ultimately be deemed a disability. The Second Circuit noted that the lower court will have to re-visit the issue to determine whether the injury qualifies as a disability without regard to whether the injury is temporary or not. In other words, the inmate will still have to prove that the injury substantially limits a major life activity. But, the fact that the injury may be temporary, does not mean that the injury is not a disability as a matter of law.

The Hamilton decision is a win for workers. It opens the door to the possibility that temporary impairments may be considered a disability under the ADA. But, it still leaves open questions about the extent to which a temporary impairment must substantially limit a major life activity to ultimately be deemed a disability under the ADA. F&W will continue to watch developments on this issue.

Notably, New York state law has more liberally interpreted the meaning of a disability under its version of disability discrimination law, the New York State Human Rights Law. Thus, independent of how federal law develops, temporary impairments may be a disability, even if they do not substantially limit a major life activity.

Disability discrimination questions can be complicated because of the complex analysis required to determine if an individual has a disability under the law. Long Island employment lawyers Famighetti & Weinick PLLC are available for free consultations to discuss disability discrimination issues, such as requests for a reasonable accommodation. Our employment attorneys, Peter Famighetti and Matthew Weinick, are available at 631-352-0050.

Court rejects narrow definition of disability under the ADA

The Fire Department of New York (FDNY) maintains a policy that requires all firefighters to shave their facial hair in order to wear a tight fitting respirator to protect the firefighters from smoke and toxic fumes. The policy allowed for only short sideburns and trimmed mustaches that do not affect the area where the mask meets with skin.

Pseudofolliculitis Barbae (“PFB”) is a skin condition which causes pain, irritation, and scarring to men who shave with PFB. In other words, men with PFB cannot shave without enduring pain, irritation and scarring. PFB is more prevalent among black males than white males. Firefighters are not immune from PFB, thus some firefighters suffer from PFB, putting their medical condition on a collision course with the FDNY facial hair policy.

In 2015, the FDNY began offering medical accommodations to firefighters with PFB. These firefighters had to take a “fit test” which is a standardized test designed by OSHA to ensure that a respirator properly seals against the mask-wearer’s face. As long as the firefighter could pass the fit test with facial hair, the firefighters were not required to shave in accordance with the facial hair policy, as an accommodation.

But, after further review, in 2018 the FDNY revoked this program and required all employees to be clean shaven. The FDNY determined that the accommodation was prohibited by federal OSHA regulations which require a respirator to be tight-fitting to an employee’s face. Further, OSHA prohibits any facial hair that comes between the sealing surface and the face, stating specifically that mask wearers must be clean shaven at the sealing points. In other words, after 2018, the FDNY required all firefighters to shave in accordance with the facial hair policy, including the FDNY firefighters with PFB, who could not shave without pain and irritation.

Some firefighters suffering from PFB sued the FDNY alleging it discriminated against them in violation of the ADA by refusing to offer them a medical accommodation. Further, the firefighters argued that because more black firefighters suffer from PFB than white firefighters, the FDNY policy discriminated on the basis of race. Initially, the District Court agreed with the firefighters and ruled that the FDNY violated the ADA, but not Title VII. The City then appealed.

The City argued, primarily, that FDNY could not provide an accommodation to the firefighters which allowed them to not shave because such an accommodation would require FDNY to violate the OSHA rules. In response, the firefighters argued that the OSHA rules were ambiguous and allowed for minimal facial hair growth at the sealing points.

The Second Circuit disagreed with the firefighters. The court found no ambiguity in OSHA’s rules and that the rules plainly required firefighters to be clean shaven at the sealing points.

Finding no room for an accommodation in the OSHA rules, the appellate court then had to determinate whether the existence of the OSHA rules trumps the ADA’s requirement that FDNY provide accommodations. On this point, the firefighters argued that since they were given the accommodation for years without having a safety incident, proof exists that the accommodation can reasonably be provided.

The court disagreed and held outright that an accommodation is not reasonable under the ADA if the accommodation would violate a regulation issued by a federal agency. An accommodation is unreasonable because its illegality itself creates an “undue hardship” and the existence of a federal regulation is an affirmative defense. In both of these cases, an employer does not have to provide an accommodation that is prohibited by federal law. The reasoning for this is that employers should not be required to defend its adherence to federal regulations.

In this case, the court found that even though the FDNY provided a medical accommodation to avoid shaving in the past, that does not require the FDNY to continue offering this accommodation. The fact that no injuries occurred during the time when the accommodation was in place does not preclude the FDNY from now enforcing the OSHA regulation.

The firefighters’ claims under Title VII for disparate impact based on race also were denied by the Court. The court determined that the FDNY established that the facial hair policy has a business necessity. Indeed, complying with federal regulation is a business necessity and a complete defense for the FDNY.

Can employers deny providing a medical accommodation if it conflicts with a federal regulation? The Bey case shows that the answer is plainly “Yes.” The ADA and Title VII cannot be used to require employers to depart from federal regulations.

Famighetti & Weinick PLLC are experienced employment law lawyers on Long Island and the New York Hudson Valley. The firm is experienced in litigating employment vaccination cases. Contact one of our employment attorneys at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.

Today’s Long Island employment blog was written by Danielle Jacobs, a Hofstra law student and F&W summer intern.

Accommodations which violate federal laws are not reasonable

But, the EEOC’s guidance is not binding and there have not been any apparent court cases concerning the legality of vaccination requirements. On June 12, 2021, however, a Texas federal court dismissed a challenge to a Texas hospital’s workplace rules requiring that employees be vaccinated or be fired. 116 employees challenged the rule. Today’s Long Island employment law blog discusses the case.

On April 1, 2021, Texas hospital Houston Methodist, issued a policy directing that all of its employees must be vaccinated by June 7, 2021. 116 employees challenged the rule in federal court and asked that the court block the hospital from requiring that they be injected with the vaccine or be fired.

Judge Lynn Hughes, a Ronald Reagan appointee, needed only five pages to justify dismissal of the case, a relatively short judicial decision, particularly considering the issues involved. The employees primarily challenged the vaccination under Texas laws concerning wrongful termination. The employees argued that the vaccinations are experimental and dangerous, so, if the employees were fired for refusing to subject themselves to an experimental and dangerous vaccine, it would constitute a wrongful termination.

Judge Hughes disagreed. The court explained that in Texas, a wrongful termination occurs only if an employee is fired for refusing to perform a criminal act. The court determined that taking a vaccine would not subject the employee to a criminal penalty, so refusing to take the vaccination could not give rise to a wrongful termination under Texas law.

The employees further argued that the vaccination requirement violates public policy making terminations for refusing to be vaccinated unlawful under Texas law. Preliminary, the court rejected the argument because public policy concerns do not alter Texas’s at-will employment rules. But moreover, the Supreme Court has held that forced vaccinations and forced quarantines are not against public policy and the federal EEOC has suggested that required workplace vaccinations do not violate federal EEO rules.

Finally, the employees argued that, generally, the vaccination policy violated public policy because it violates federal laws. Again, the court easily dismissed the argument because the laws the employees cited as being violated, regulate only the federal government, not private employers, such as the hospital.

Additionally, the court rejected the employees’ argument that they were being forced to be “human subjects”. Rather, the court determined that the hospital had not asked to use the employees in a trial, but were being vaccinated to keep the workplace safe. Finally, the court found it “reprehensible” that the employees would compare themselves to the subjects of Nazi doctors, discussing how the Nazis mutilated and inflicted pain on humans, whereas the hospital here was trying to save lives.

In sum, this first apparent court decision concerning forced COVID-19 vaccination of employees has been decided in much the way we predicted. Though many of the legal arguments centered on Texas law, the court’s reasoning is readily applicable to challenges which may be brought under New York law.

The law concerning vaccinations and COVID-19 is still evolving. If you have questions about workplace vaccination rules, contact a Long Island employment lawyer at 631-352-0050. More information about vaccination laws is available on our blog. We will continue to update our blogs as more courts consider workplace vaccination rules. Subscribe to our Facebook page to make sure you receive the latest updates from our employment attorneys.

Court Rules on COVID-19 Vaccination Requirement

According to the New York State Division of Human Rights, the employee worked for a Long Island medical provider for 34 years and was 70 years old. After the pandemic started, the company implemented a reduction in force plan which included the 70 year old employee. The employee alleged that she was replaced with a younger employee who had less experience, showing her inclusion in the plan was pre-text for discrimination. But, the company alleged 28 employees in total were terminated and their ages ranged from 20 to 79, undermining a claim that age played in role in termination decisions.

During the Division’s investigation, it learned that the employee’s position was indeed given to a younger employee with much less experience. The company argued the decision was based on the replacement’s efficiency as compared to the terminated employee, but could not articulate any demonstrable basis for this comparison.

Later in the investigation, the company provided statistics which it argued showed that the terminated employee’s work productivity was not as good as other retained employees and that those statistics supported the legitimacy of the employee’s termination. But, F&W pointed out that the statistics did not account for a medical leave of absence the employee took during the comparison period. In other words, if true that the company compared work productivity of employees without considering the terminated employee’s medical leave absence, then the employee was penalized for treating a medical condition.

Based on the information gathered during the course of the investigation, the State Division determined that it could not find that age and disability were not a factor in the termination decision. The Division specifically noted that if the company did not account for the time that the employee was on medical leave, then its decision may be unlawful disability discrimination.

After considering the facts discovered in the course of its investigation, the State Division found that Probable Cause exists to support the allegations of the complaint. The case will be sent to one of the Division of Human Rights Administrative Law Judges to set a hearing date. At the hearing, F&W will present the evidence and the judge will make the final determination of whether discrimination took place.

Evidence of workplace discrimination often consists only of circumstantial evidence. Direct evidence of discrimination is rare. In this case, the State Division was persuaded by several pieces of circumstantial evidence, including that an older employee was replaced by a younger employee, and that the employer’s reasons for terminating the employee just did not add up.

If you think you’ve been selected for termination as part of a reduction in force plan based on an unlawful reason, such as disability, age, race, religion, or sex, speak to an experienced employment law attorney to discuss your rights. The Long Island employment law firm Famighetti & Weinick PLLC are experienced in such cases and offer free case evaluations for workplace discrimination cases.

Our phone number is 631-352-0050. More information about unlawful employment discrimination, unlawful layoffs, and wrongful terminations is available on our website at http://linycemploymentlaw.com.

Probable Cause in Age/Disability Discrimination Case

Concerning workplaces, on May 28, 2021, the Equal Employment Opportunity Commission, the federal agency charged with regulating workplace discrimination, issued guidance relating to COVID-19 vaccines and employment. Among other things, the EEOC’s guidance addresses whether employers can require employees to get vaccinated. Today’s Long Island employment law blog discusses the guidance.

Generally, employers have broad discretion about how to govern their workplaces and their workers’ working conditions. Of course, some limitations exist. The National Labor Relations Act regulates some conditions, such as employees’ cooperating together to improve their working conditions. OSHA regulates workplace safety standards. The FLSA sets a minimum wage and overtime pay requirements. There’s also a myriad of anti-discrimination laws which prohibit employers from setting employees’ terms and conditions of employment based on protected characteristics such as age, race, disability, sex, national origin, or religion.

Because employers generally have discretion to set the terms and conditions of employment, requiring that employees be vaccinated is unlawful only if it intersects with one the various workplace laws enacted by the government. As an aside, because most workplaces are private businesses, not government entities, the Constitution is not issue, because the Constitution applies only to the government, not private actors. But, government workers may be protected by the Constitution and should not rely solely on the EEOC’s guidance to determine whether a workplace requirement to be vaccinated is lawful.

Of the various workplace laws which may be implicated by an employer’s requirement that employees be vaccinated is the Americans with Disabilities Act. The ADA prohibits employment discrimination based on disability. But, it goes further. It can prohibit employers from conducting medical examinations of employees and from making inquiries into employees’ medical conditions.

Does the law prohibit employers from requiring employees get vaccinated? The EEOC says no. In no uncertain terms, the EEOC says that federal discrimination laws do not prohibit employers from requiring that employees get vaccinated for COVID-19. Like everything in the law, there are some exceptions. First, employers must provide reasonable accommodations to employees for a disability or sincerely held religious belief. In other words, if a medical condition or sincerely held religious belief prohibits an employee from getting vaccinated, the employer may have to provide a reasonable accommodation, if it does not impose an undue hardship on the employer.

Second, employers cannot impose vaccination requirements which may, unintentionally, have a discriminatory impact on the workforce. For example, the EEOC suggests that some individuals may be in demographic groups which make it harder for them to have access to vaccinations. If a workplace vaccination requirement disparately impacts this group, the employer may have engaged in unlawful discrimination.

Further, rules which apply differently to different employees based on race, religion, sex, age, etc. may also be unlawful, even if well intentioned. For example, if a company requires only employees with underlying conditions who are at greater risk for coronavirus to get vaccinated, the company may have engaged in unlawful discrimination, even though its intention was to protect those individuals.

Employees who do not want to get vaccinated for personal reasons, unrelated to medical reasons or religious reasons, generally will not have a lawful basis to oppose vaccination requirements. But, individuals with religious beliefs or medical conditions which prevent vaccination may request reasonable accommodations. Though not an exhaustive list, some examples of reasonable accommodations offered by the EEOC are allowing the employee to wear a mask, to maintain social distance, or assigning the employee to a shift which may reduce exposure to others.

Can employers demand proof of vaccination from employees? Yes. Employers can ask employees about their vaccination status without violating federal anti-discrimination laws. But, employers must maintain the confidentiality of employees’ vaccination status, just as it they must with any employee medical information.

This blog is not an exhaustive explanation of all the laws which may be implicated when an employer requires that employees be vaccinated for COVID-19. Indeed, state and local laws may be implicated, as well. For example, in New York, the state Human Rights Law and the New York City Human Rights Law are generally broader than the federal counterpart. Further, vaccination requirements may implicate concerns relating to union contracts.

Employers considering implementing a COVID-19 vaccination requirement in the workplace should consult with experienced employment law attorneys before promulgating such rules. Similarly, employees subject to a workplace vaccination requirement and who do not want to be vaccination for any reason, should also consult with an employment attorney to understand the laws and rights which apply to the particular situation.

Famighetti & Weinick PLLC are experienced employment law lawyers on Long Island and the New York Hudson Valley. The firm is experienced in litigating employment vaccination cases. Contact one of our employment attorneys at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.

The complete guidelines from the EEOC concerning COVID-19 is available on the EEOC website.

Can my employer require me to get vaccinated?

The following is taken from the New York State Division of Human Right’s final investigation report.

The firm’s client, a Muslim, worked for an ambulance company as a driver. When he was first hired, he was told he would have to shave his beard, which he initially did, but told the company he maintained his beard because of religious beliefs. He interprets his religious teachings as prohibiting Muslims from cutting their beards.

Months after his hire, the client provided a note from his Mosque detailing the nature of his beliefs and soon after that, he began growing his beard again. But, within a month, the company’s human resource director threatened the client that if he did not shave, he would be disciplined.

A year later, in late spring 2020, the client applied and interviewed for an open marketing position. The position would have meant a raise of at least $1 per hour. The client believed the interview went well and understood he was in the running for the job.

But, days later the director of marketing emailed the client saying, in sum and substance, that because the position required meeting with customers’ high end people, she needed him to shave his beard. The client reiterated that he wore the beard because of religious reasons and that there was no legitimate reason that the beard would interfere with his job. Nonetheless, the company did not hire the client to the new position.

Famighetti & Weinick PLLC filed a charge of discrimination with the New York State Division of Human Rights on the client’s behalf. In response to the charge, the company alleged that the client was not hired because he was not qualified for the position. It argued the position required someone with experience as an EMT or with marketing experience. Further, the company argued that the position was never filled because of a hiring freeze.

In response, F&W argued that the marketing director’s email plainly states that the client was not offered the position because he wore a beard. The firm made several other points on behalf of the client, including showing that the company’s arguments were inconsistent and not credible.

On March 26, 2021, the Division issued a report summarizing its findings and concluding that Probable Cause exists to believe that the company engaged in unlawful religious discrimination. The Division determined that a judge would have to determine whether the client was qualified for the job and whether the client would have been hired for the job had he not a beard.

The next step is that the case will proceed to a “public hearing.” A public hearing is like a trial in court, except that an administrative law judge will hear the case, instead of a jury. At the public hearing, the judge will determine whether the company is liable for discrimination and, if so, will then make a determination about the amount of damages to award.

If you have questions about the New York State Division of Human Rights or religious discrimination cases, contact a Long Island discrimination lawyer at Famighetti & Weinick PLLC. Our employment attorneys are available at 631-352-0050. Our Hudson Valley employment law office can be reached at 845- 669-0040. Stay up to date on firm news and trending employment law topics by following us on Facebook. We also post fresh content to our blog on a regular basis.

Employment law firm’s religious discrimination case to proceed to administrative trial

The lawsuit alleges that the female volunteer firefighter is currently the only female in the department. Unlike her male counterparts, the female firefighter alleged that she was treated differently by being subject to unwarranted scrutiny over work on department committees. She further alleged that stipends and budgets under her control were cut to levels lower than males who had previously held her position.

After years of ongoing disparate treatment, the firefighter eventually brought her complaints to the department’s attention. After making the complaint, individuals in the department tried to oust her from her position as an officer of the department, and took other action allegedly in retaliation for her complaints. Ultimately, the fire department decided that her claims lacked merit, so she filed a charge of discrimination with the Equal Employment Opportunity Commission.

After an investigation, the EEOC determined reasonable cause existed to believe that the department had discriminated and retaliated against the firefighter in violation of Title VII. The EEOC later issued right to sue letter to the firefighter, allowing her to file her claims in federal court.

Accordingly, in November 2020, the firefighter filed her lawsuit against the fire department. In response, Defendants tried to have the case immediately dismissed. The department asked the court for permission to file a motion to dismiss. The department argued several reasons why the case should be dismissed, including that the statute of limitations bars the claims, that the conduct was not “severe or pervasive,” that the conduct was not directed at the firefighter based on her sex, and that the firefighter was not subject to a materially adverse employment action.

Famighetti & Weinick PLLC filed a detailed response to the fire department’s motion, on behalf of the firefighter. The firm cited to controlling legal authority showing why the claims were not barred by the statute of limitations. The firm further pointed out the reasons that the allegations were sufficient, including the fact the EEOC had already determined that the allegations were sufficient to support claims unlawful conduct under Title VII.

On March 3, 2021, federal District Judge Gary Brown heard oral argument on defendants’ motion. Employment lawyer Matt Weinick argued the case for the firefighter. After the department’s lawyers argued why dismissal should be granted, Weinick argued the firefighter’s case. Weinick emphasized the importance of the EEOC’s decision and the important role it should play in the court’s decision. Weinick also argued about the unique characteristics of Long Island volunteer fire departments, and why the conduct in this case amounted to a hostile work environment, discrimination, and retaliation.

Typically, the defendants’ motion is a preliminary matter and courts ask that the parties provide more substantive briefing after the court conference. In this case, Judge Brown ruled from the bench that he was considering the motion to dismiss fully made and argued, and that he would be denying the motion in its entirety. Thus, the case will not be dismissed, but instead, will be allowed to proceed to the next stages of the litigation process.

The judge recognized several points articulated by the firm’s arguments. First, volunteers, such as volunteer firefighters on Long Island, are considered employees for purposes of employment discrimination laws. But, the court’s decision also recognizes the importance of the continuing violation doctrine and it’s relationship to the 300 day filing rule for EEOC charges. The decision also shows the importance of a reasonable cause determination and it’s relevance to a court’s analysis about whether a discrimination lawsuit should be dismissed or not.

If you have questions about discrimination in fire departments, motions to dismiss, the EEOC, or retaliation, contact a Long Island employment lawyer at 631-352-0050. The phone number for our Hudson Valley employment law office is 845-669-0040.

Judge Rules Discrimination Case Against Fire Department Can Proceed

On December 15, 2020, the federal Equal Employment Opportunity Commission issued guidance to employers about how the COVID-19 vaccine may implicate employment law concerns. The issues discussed in this blog rely on that guidance.

The first employment law which may relate to vaccinating workers is the Americans with Disabilities Act (ADA). The ADA generally prohibits employers from discriminating against employees based on an employee’s medical condition or disability. More specifically, the ADA regulates medical examinations of employees. For vaccines, the preliminary question is whether a vaccination is a medical exam.

The EEOC suggests that vaccinations are not medical examinations. Accordingly, vaccines are not regulated by the ADA if they are administered for the purpose of protecting against contracting the coronavirus. But, pre-screening questions may constitute a medical exam because they may elicit information about an employee’s disability. Therefore, if an employer administers vaccines and engages in pre-screening questioning of employees, the questions must be job related and consistent with business necessity, to be legal under the ADA.

To qualify as job related and consistent with business necessity, the employer must be able to show that it has a reasonable belief that an employee who does not answer pre-screening questions, and thereby cannot be vaccinated, will pose a “direct threat” to the safety of him or herself or others. This belief must be formed by conducting an individualized inquiry of the employee. In other words, the employer cannot adopt a blanket policy that any employee who is not vaccinated is a direct threat. The employer must determine whether an unvaccinated employee will expose others to the virus in the workplace.

If the employer determines that an unvaccinated employee is a direct threat, the employer cannot immediately terminate or exclude the unvaccinated employee. The employer must first determine whether the employee can be accommodated in some way, such as by working remotely. Employers must engage in an interactive process with the employee to determine whether an accommodation can be made. Employers may review documentation about the employee’s disability to assist in finding an accommodation. But, the prevalence of other workers’ obtaining the vaccine may play into whether an accommodation poses an undue hardship on the employer.

The EEOC has identified two circumstances under which pre-screening questions can be asked without the questions relating to a job and business necessity. First, if the vaccination is voluntary. Then, the employee can refuse to answer the pre-screening questions if he or she wants, but the employer cannot retaliate against the employee.

Second, if the vaccination is provided by a third-party which is not under contract with the employer, the provider may ask pre-screening questions. An example would be if the employee gets vaccinated at a pharmacy or other health care provider.

After an employee is vaccinated, may an employer lawfully ask an employee for proof of vaccination? According the EEOC, the answer is yes. An employer may ask an employee for proof vaccination without the question being considered a medical exam. But, if the employee did not receive a vaccination, the employer may not follow up with questions inquiring about why the employee did not get vaccinated because the answers may reveal the employee’s disability.

In addition to disability discrimination concerns, workplace required vaccinations may implicate religious discrimination concerns. Title VII prohibits discrimination based on an employee’s religion. If an employee’s sincerely held religious belief prohibits the employee from being vaccinated, an employer may violate Title VII if it requires the employee to be vaccinated or terminates the employee for refusing the vaccination.

The exception to this rule is when accommodating the employee’s religious beliefs would cause an undue hardship on the employer. The hardship must be more than de minimis, meaning more than minimal. If no reasonable accommodation can be made for the employee, then the employer may lawfully terminate the employee.

The interplay between vaccinations at work and employment laws can be tricky. Employers can find themselves in trouble by implementing broad policies about vaccination requirements without making individualized assessments of each employee’s need for an accommodation. Employees can find trouble by refusing vaccines without having a legitimate disability or sincerely held religious belief.

Because of the intricacies of these employment issues, employers and employees should consult experienced employment lawyers about vaccination issues in the workplace. Famighetti & Weinick PLLC are available at 631-352-0050 to answer your questions.

Can employers require employees be vaccinated against covid-19?

Recently, Long Island employment lawyers Famighetti & Weinick PLLC were able to “test the waters” to challenge the interplay of employment discrimination laws and medical marijuana laws. Today’s Long Island employment law blog discusses a decision from the New York State Division of Human Rights concerning employment drug testing and medical marijuana laws.

The following facts were taken from the Division’s decision. F&W’s client applied for a job with a national consumer electronics retail company. The applicant interviewed for the position at his local Long Island retail location. Soon after, the store issued the client a conditional offer of employment, subject to a background test and drug test.

Accordingly, the client took a drug test with a third-party vendor. The test returned a positive result for THC, the active ingredient in marijuana. In response, the client provided to the vendor a copy of his medical marijuana card and noted his use was legal. The vendor relayed this information, including the positive result and the medical marijuana card, to the corporate human resources office.

Ultimately, the Company rescinded the job offer. After the client inquired about the reason, he was told it was because of the failed drug test. The client again informed the company about his status as a prescribed medical marijuana user, but the Company did not alter its no hire position.

With the assistance of F&W, a charge of discrimination was filed with the Long Island office of the New York State Division of Human Rights. The charge alleged that the company violated the New York State Human Rights Law. Specifically, the charge alleged that the client’s prescribed medical marijuana card qualified him as disabled under the Human Rights Law. Further, he alleged that when the Company refused to hire him based on his lawful use of medical marijuana, it discriminated against him on the basis of his disability.

The State Division investigated the charge, interviewing the client and a company representative. At the completion of the investigation, the Division’s Regional Director made a determination that probable cause exists to support the complaint’s allegations.

Specifically, the Division determined that New York’s medical marijuana law, the Compassionate Care Act, modified the Human Rights Law’s definition of being disabled. Certified patients, i.e. individuals who are prescribed medical marijuana, are deemed disabled under the Human Rights Law. This was a crucial finding because only individuals deemed disabled under the law are protected by the disability discrimination law.

The Division further determined that the law prohibits employers from terminating or refusing to employ individuals based on their status as certified medical marijuana users and must reasonably accommodate such employees. The Division explicitly found that the company was in violation of the Compassionate Care Act.

But, the Division made an additional finding. The Division determined that the company “created a natural bias,” by expecting that applicants should be the one to identify disabilities to the employer and did not provide any mechanism to allow applicants to disclose their disabilities without feeling anxiety about being stereotyped.

In lights of its findings, the case will be assigned to an administrative law judge who will conduct a hearing to make the ultimate finding of discrimination and damages.

If you have questions about discrimination based on lawful medical marijuana use, contact a Long Island discrimination lawyer at 631-352-0050. More information about medical marijuana and workplace laws is available in previous blogs we’ve posted: https://www.linycemploymentlaw.com/blog/medical-marijuana-use-and-disability-discrimination/.

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