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Articles Posted in Employment Discrimination

Long Island employment lawyers Famighetti & Weinick PLLC have been blogging about whether employers can lawfully require employees to be vaccinated against COVID-19. Our blogs have concentrated on guidance issued by the federal Equal Employment Opportunity Commission and have opined that workplace vaccination requirements are likely lawful, at least under federal law.

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.

At the beginning of the COVID-19 pandemic, Long Island employment lawyers Famighetti & Weinick PLLC published information on our website warning that the financial impact of the pandemic could be used by employers to conduct unlawful discriminatory layoffs. Indeed, the firm has seen this scenario play out. On June 7, 2021, the New York State Division of Human Rights issued a determination of Probable Cause, in a case filed by Famighetti & Weinick PLLC alleging that the client’s inclusion in a reduction in force plan constituted discrimination based on age and/or disability. Today’s Long Island employment blog discusses this decision.

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.

In late 2020, COVID-19 vaccines began rolling out to the public. Some individuals could not roll up their sleeves quick enough to get the vaccine. Others, however, are reluctant to receive the vaccine for any number of reasons. With the vaccine now widely available, businesses, schools, and other public places are considering whether to require vaccinations for workers, students, customers and/or visitors.

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.

On March 26, 2021, the New York State Division of Human Rights issued a determination of Probable Cause in a firm’s religious discrimination case. Today’s Long Island employment law blog discusses the case and what happens next.

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.

In November 2020, the Long Island employment law firm Famighetti & Weinick PLLC filed a federal lawsuit against a Long Island volunteer fire department on behalf of a female volunteer firefighter. The lawsuit alleged that the department discriminated against the firefighter based on her sex, then retaliated against her when she complained about the discrimination. The fire department asked the court to dismiss the case. Today’s Long Island employment law blog discusses the lawsuit, the department’s motion, and the court’s decision.

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.

On December 14, 2020, the country’s wait for a COVID-19 vaccination came to an end as the first vaccines began to be administered to America’s health care workers. Like many measures taken to combat the virus, the vaccine is not without controversy. According to one recent survey, nearly one quarter of Americans are hesitant about taking the vaccine. With such a prevalence, employers and employees may be wondering about whether employers can require workers be vaccinated and whether workers can refuse a vaccine mandate. Today’s Long Island employment law blog discusses these issues.

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.

As states across the country, including New York, make the medical use of marijuana legal, new issues are arising in the context of employment. For example, how will employers which require drug testing, respond to the changes in the law and how they will handle employees who are lawfully taking medical marijuana? Few courts have addressed these issues.

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.

A jury verdict is often the goal of parties involved in an employment discrimination court case. But, many times, a jury verdict is not the end of the litigation. Indeed, a party unhappy with the outcome may appeal to an appellate court. This is what happened after Effat Emamian won a jury award of $250,000 for back pay and $2,000,000 for emotional damages. Today’s Long Island employment law blog discusses what happened next at the Court of Appeals.

Emamian worked for Rockefeller University. She alleged that she was subjected to inferior treatment by coworkers during the course of her employment. Comments made by coworkers suggested that the poor treatment was based on Emamian’s race, national origin, religion, and sex. Emamian alleged that hostile treatment directed at her caused her extreme emotional distress, to the extent that she could not leave the house, and she developed emotional disorders. Ultimately, the University denied her a reappointment to her position, thus her employment was ended.

Emamian sued Rockefeller arguing she faced discrimination and retaliation. As relevant here, her case proceeded to a jury trial in federal court to determine a claim of discrimination under the New York City Human Rights Law. The jury mistakenly filled out the jury verdict form, leading to some confusion and a grounds for appeal for the University, but after the judge sorted out the mistake, the jury’s verdict was accepted: (1) plaintiff proved discrimination; (2) plaintiff proved $250,000 in economic damages; and (3) plaintiff proved $2,000,000 in emotional distress damages.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of religion. On the other hand, the First Amendment prohibits Congress from enacting laws which interfere with how churches govern themselves. When a church makes an employment decision based on religion which negatively impacts one of its employees, does that church then violate the anti-discrimination provisions of Title VII? Today’s Long Island employment law blog explores the ministerial exception as elaborated on by the Supreme Court of the United States in the Our Lady of Guadalupe decision.

In 2012, the Supreme Court decided a case, Hosanna-Tabor. In that case, the country’s highest court applied a legal doctrine called the ministerial exception. The ministerial exception generally says that church employees who perform jobs which relate to religious responsibilities are exempt from coverage under anti-discrimination laws. For example, if a Catholic school teacher was responsible for teaching students math, but was also responsible for teaching bible studies, the teacher would likely not be protected by anti-discrimination laws because of the ministerial exemption. So, if the teacher was not married, but became pregnant, the church could lawfully terminate the teacher if it believes the teacher violated religious tenets.

Turning to the Our Lady of Guadalupe case, the decision concerns two cases which were heard and decided at the same time. In both cases, the plaintiffs were teachers at religious schools who had employment contracts with the school. Each teacher taught general elementary education classes, but both plaintiffs were charged with providing some religious instruction and leading prayer. Ultimately, each school terminated the respective teacher. One teacher alleged age discrimination, the other alleged disability discrimination. After the parties litigated whether the ministerial exception barred the claims, the cases reached the Supreme Court.

The Equal Employment Opportunity Commission (EEOC) has been issuing guidance for employers about how federal discrimination laws relate to the COVID-19 pandemic. Specifically, disability discrimination laws cross paths with employers’ efforts to mitigate the risk of COVID-19 transmission in the workplace. Today’s Long Island employment law blog discusses some of the most recent guidance issued by the EEOC, the government agency responsible for enforcing federal discrimination laws. Our previous blogs discussed EEOC guidance issued earlier this year.

Employees with high risk family members at home have expressed concern about returning to work for fear of contracting coronavirus and spreading it to their families. The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with disabilities. The EEOC has already indicated that employers may be required to provide reasonable accommodations to employees who face higher risks from covid-19. But, do employers have to provide accommodations because of an employee’s family member’s risk to coronavirus? The latest EEOC guidance says employers are not required to accommodate an employee because a family member is at risk.

Federal anti-discrimination laws, such as the ADA and Title VII, also prohibit an employer from creating a hostile work environment against employees based on the employees membership in a protected class, such as having a disability or based on race or national origin. The June 2020 EEOC guidelines remind employers to be mindful of their obligation to prevent workplace discrimination. As it relates to coronavirus, the EEOC suggested that employers be “alert” to comments directed at employees based on employees of Chinese or Asian national origin. Comments from co-workers about the origins of coronavirus may be discriminatory. Though not particular to COVID-19, the EEOC reminds us that harassment can take the form of e-mails, phone calls, and video chats. In other words, use of technology is no defense to a claim of discrimination.

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