Articles Posted in Employment Discrimination

The Long Island employment lawyers at Famighetti & Weinick PLLC obtained a decision that probable cause exists to believe that a national investment bank discriminated and retaliated against their client.  The case will be scheduled for a public hearing at the New York State Division of Human Rights.

The age discrimination and retaliation case was brought on behalf of one of the bank’s traders. According to the allegations in the case, the trader had been successfully working on Wall Street for decades.  Then, co-workers and supervisors began subjecting the trader to a hostile work environment based on his age.  The abusive conduct consisted of age based jokes and comments, some of which were documented in e-mails.  The complaint filed with the New York State Division of Human Rights detailed other improper hostile workplace conduct directed at the trader based on his age.

Further, the trader complained about the age discrimination on multiple occasions, also at times in writing. Despite these complaints, the hostile work environment continued.  The trader opposed other unlawful discriminatory conduct in the workplace and after one such time, a supervisor threatened to run the trader out of the company.  Indeed, soon after these complaints, the bank issued a poor performance evaluation to the trader and removed from him many of his top accounts.  The complaint alleged that the reasons the bank gave the trader for removing the accounts were demonstrably untrue. Ultimately, the bank terminated the trader’s employment.

Are firefighters of small municipal fire departments covered by the Age Discrimination in Employment Act (ADEA)? On November 6, 2018, the United States Supreme Court answered that question the case Mount Lemmon Fire District v. John Guido. Today’s Long Island employment law blog takes a closer look at the decision and also discusses whether the decision offers a glimpse into how the new makeup of the court may affect employment cases.

The Mount Lemmon Fire District is a municipal fire department in Arizona. Purportedly because of a budget shortfall, the District laid off two employees, John Guido and Dennis Ranking, ages 46 and 54, respectively. The firefighters sued alleging their terminations violated the ADEA because the decisions were based on their age. The District moved to dismiss arguing that the ADEA only covers employers who have more than 20 employees, which the District did not. Ultimately, SCOTUS was asked to decide the issue.

Writing for the court, Justice Ginsburg noted that the ADEA was enacted to prevent “arbitrary age discrimination” in employment. She noted further that Congress initially excluded governmental agencies and required that employers employ a threshold number of employees for the law to apply to them.  But, in 1974, Congress amended the ADEA to specifically define employer as including “a State or political subdivision of a State.”

The New York City Council has passed bills which will amend the New York City Human Rights Law. The bills concern lactation in the workplace for nursing mothers. Today’s New York employment law blog discusses these changes.

Federal, state, and local laws regulate discrimination in the workplace based on an employee’s sex and pregnancy. The New York State Labor Law specifically addresses lactation in the workplace. But, the New York City Council has expanded on those protections via bills 879-A and 905-A, part of what is known as the Mother’s Day Legislative Package.

According to the bill’s summary, the law covers New York City employers with 15 or more employees. It requires those covered employers to provide lactation rooms and refrigerators for employees to express and store milk.  The rooms must be in a “reasonable proximity” to the employee’s work areas. Lactation rooms must be sanitary and cannot be a restroom. Further, the rooms must provide privacy, provide an electrical outlet, and have a chair and surface area to place items including a breast pump. The room must also have access nearby to running water.

On October 9, 2018, new laws concerning sexual harassment in the workplace will take effect in New York State. Included in these changes are coverage for independent contractors under the New York State Human Rights Law, training requirements for employees, and employee handbook and policy requirements. Today’s Long Island employment law blog looks at some of these changes.

Expansion of the New York State Human Rights Law’s Coverage

The New York State Human Rights Law is the primary source of state employment discrimination laws in New York. The HRL prevents many forms of discrimination in the workplace including discrimination based on an employees age, race, gender, national origin, sexual orientation, sex, religion, disability, or criminal conviction status.  The law, however, generally applied to only employees.  In other words, independent contractors, vendors, or others, may not have been protected from sexual harassment in a workplace if the individual was not an employee of that particular employer.

Long Island Employment Lawyer Matthew Weinick has been appointed to the Pro Bono mediation panel of the United States District Court for the Eastern District of New York. Participation on the panel allows Weinick to assist unrepresented “pro se” parties in settling their cases during court ordered mediation sessions.

Mediation is a form of alternative dispute resolution. Mediation offers the opportunity for parties to a lawsuit to meet in a confidential mediation session where an experienced and certified mediator helps the parties reach an agreement to settle the case. Mediation has many benefits including saving parties the time, expense, and uncertainty of a lawsuit, confidentiality, and the ability to craft a creative solution, including the possibility of ending the lawsuit with terms which may not be available from a court judgment.

The EDNY’s mediation program involves court certified mediators and pro bono attorneys. The certified mediators act as neutral parties at the mediation. Mediators listen to both sides’ arguments about the case and then help the parties reach an agreement to resolve the dispute. Although not always successful, mediation is useful tool and the EDNY has seen many cases successfully resolved by using its mediation program.

How much is an employment discrimination lawsuit worth? As Long Island employment lawyers, this is a frequent question we hear from victims of unlawful workplace discrimination in New York.  Victims of discrimination may be able to recover several categories of damages which comprise the total amount that an employment discrimination lawsuit may be worth. Today’s Long Island employment law blog discusses the damages available to discrimination victims.

Before even getting to the question of damages, plaintiffs must always first prove liability. This means that an employment discrimination plaintiff must first prove that the employer in fact engaged in unlawful discrimination or retaliation. We often describe this step by analogizing it to baking. In a lawsuit, a plaintiff must prove certain elements. Elements are like ingredients. If, for example, we were baking a cake, we need, for simplicity purposes, four ingredients: (1) flour, (2) sugar, (3) butter, and (4) eggs.  If we did not have one of these ingredients, we may make something resembling a cake, but it would not be a cake.

Similarly, in the world of employment discrimination, a plaintiff must prove four “elements” or “ingredients” to win the liability part of his or her lawsuit.  In short, those elements are: (1) membership in a protected class (such as race, religion, disability, etc.), (2) being qualified for the job; (3) an adverse action (meaning something legally “bad” happened such as being fired); and (4) causation – a showing  that the bad thing happened because the employee belongs to a protected class. If the plaintiff does not prove one of these elements, then the “cake” won’t reason, i.e. the plaintiff cannot prove the case and will not be entitled to any damages whatsoever.

Can an employer fire an employee for activities in which the employee engages outside of work? Like most legal questions, the answer is that it depends. Today’s Long Island employment law blog discusses whether New York employees are protected for engaging in activities outside of work.

Generally speaking, New York employees are considered at-will, meaning employers can fire employees for any reason or no reason, as long as the reason is not otherwise illegal. This rule gives employers broad discretion in deciding whether to terminate an employee.

New York Labor 201-d, however, identifies several reasons for which an employer may not terminate an employee.  201-d prohibits employers from terminating an employee, refusing to hire or promote an employee, or otherwise discriminate against an employee for an employee engaging certain activities outside the workplace.  Those activities include participating in political activities, an employee’s “legal use” of consumable products, an employee’s “legal” recreational activities, or participating in union activities.

Special Counsel Robert Mueller’s investigation into possible collusion between the Trump campaign and Russia has been dominating the news.  What, if anything, can the Russia investigation teach us about employment law? Today’s Long Island employment law blog discusses the one clear answer — tell the truth.

The presidency may be a politically elected position, but it is nonetheless a job and the campaign process is like one giant and prolonged job interview.  Millions of bosses — voters — use information gathered during the campaign to make an informed decision about who to hire — i.e. elect — as president. Once elected, the president’s acts and performance are not without review.  Congress may impeach for “high crimes and misdemeanors” and law enforcement may prosecute where there is evidence of a crime.

In the private sector, employers use the interview process to evaluate candidates for a job.  Employers may ask many questions to a candidate during the application process, and employers expect honest and truthful answers to their questions.  Businesses make decisions about who to hire after carefully reviewing, among other things, the applicant’s answers to the employer’s questions from the interview process.  Although many states are at-will employment states, meaning employees can be hired or fired for any lawful reason, many employers nonetheless will investigate suspicions of employee misconduct before terminating the employee.

Federal and state laws protect employees from discrimination and prohibit employers from making employment decisions based on factors such as race, gender, religion, national origin, disability, and age. These laws also protect employees against retaliation. In other words, employers are prohibited from subjecting employees to negative employment decisions, such as termination or demotion, because an employee engages in “protected activity” such as filing a discrimination charge with a federal or state agency.  Sometimes, discrimination laws clash with Constitutional concerns.  Today’s Long Island employment law blog discusses the ministerial exception to religious discrimination claims.

In 2012, however, in Hosanna‐Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., the U.S. Supreme Court adopted the ministerial exception doctrine. This exception is an affirmative defense that an employer can use to defend employment discrimination lawsuits. The Supreme Court has recognized that while there isn’t a strict formula to decide when the exception applies, it is usually the role performed by the employee and the religious activities of the employer that determines whether the exception applies.

On March 7, 2018, New York’s federal circuit court in Penn v. New York Methodist Hospital, decided a case based on the application of the ministerial exception doctrine.

Title VII of the 1964 Civil Rights Act prohibits workplace discrimination.  Title VII, however, prohibits only the types of discrimination identified in the statute, including race discrimination, sex discrimination, religious discrimination, and national origin discrimination.  For nearly two decades, the prevailing view from the country’s federal courts, including New York’s federal appellate court (the Second Circuit), was that Title VII does not prohibit workplace discrimination based on an employee’s sexual orientation.  On February 26, 2018, the Second Circuit became the second federal circuit court to reverse its prior precedent and hold that Title VII does indeed prohibit sexual orientation discrimination.  Today’s Long Island employment law blog discusses the Zarda v. Altitude Express, Inc. decision.

The Background of Zarda and Sexual Orientation Discrimination Law in New York

Zarda stems from an employer’s termination of a sky-diving instructor from Long Island in 2010, soon after the employee disclosed his sexual orientation. The District Court and then the Second Circuit initially ruled against the sky-diving instructor, holding that the Courts’ prior decisions interpreting Title VII required ruling that Title VII’s prohibitions do not include sexual orientation discrimination.

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