Articles Posted in Employment Discrimination

For federal workplace discrimination claims in New York, employees must file a charge of discrimination with the EEOC within 300 days of the discriminatory act in order to preserve their right to sue the employer. But, oftentimes for hostile work environment claims, the employee doesn’t reach a breaking point until after enduring perhaps months or years of abuse. Does the employee lose the right to sue based on acts which occurred before the 300 day filing period? On April 8, 2019, New York’s federal appellate court answered that question, and clarified several other important points of law concerning employment cases.  Today’s Long Island employment law blog explains.

For an employee to have a hostile work environment claim against an employer, the employee must be able to show the employer’s abusive conduct was either severe or pervasive. When showing pervasive conduct, the employee must show many hostile and abusive acts took place frequently over a period of time. But, employees must file charges of discrimination within 300 days of the discriminator act.

In Davis-Garett v. Urban Outfitters and Anthropologie, the plaintiff alleged she was subjected to a hostile work environment at three different store locations and over the course of more than a year, ending in September 2013.  But, the plaintiff did not file a charge of discrimination with the EEOC until December 2013. The trial court ruled that the everything that happened from before 300 days before the EEOC charge was filed, would not be considered.

As more states enact legislation legalizing marijuana for medical and/or recreational use, issues concerning employers’ regulation of employees’ marijuana use are on the rise. Can employers regulate an employee’s lawful use of marijuana outside of work? Like most legal questions, the answer is complicated. Today’s Long Island employment law blog discusses a recent New Jersey court’s opinion on the question of medical marijuana use relating to a disability.

New Jersey has enacted the Compassionate Use Act. In brief, the Act is intended to prevent the prosecution of patients and caregivers involved in the use of marijuana to alleviate suffering from medical conditions. The portion of the Act relevant to the New Jersey case also notes that employers are not required to accommodate the medical use of marijuana in the workplace.

In the New Jersey case, Wild v. Carriage Funeral Holdings, Inc., the plaintiff was diagnosed with cancer and was prescribed marijuana as part of his medical treatment. He continued working as a licensed funeral director.

Are you facing a hostile work environment? You may think so, but courts may not agree.  Employment law requires employees to show that they faced severe or pervasive abusive conduct in the workplace, to prove a hostile work environment claim.  What is severe or pervasive conduct?  Today’s Long Island employment law blog explains.

Courts have long stated that their role is not to keep workplaces civil.  So, many employees may believe their bosses and/or coworkers are mistreating them, but the law would not regard the conduct as unlawful.  Employment laws only prohibit abusive conduct which is directed at employees based on the employee’s protected characteristics, such as sex, gender, race, or national origin.  Moreover, the conduct must be severe or pervasive.  The legal definition of severe of pervasive has been settled for a while, but because it’s a somewhat of a nebulous definition, courts and lawyers sometimes have trouble discerning when conduct meets that standard.

In Fox v. Costco, decided on March 6, 2019, the Second Circuit provided insight into questions. First, can an employee claim he subjected to a hostile work environment based on a disability?  Second, what kind of conduct can be severe or pervasive.  Let’s take the questions in turn.

On February 14, 2019, Congressman Robert C. “Bobby” Scott sponsored a bill in the United States House of Representatives which would amend the Age Discrimination in Employment (ADEA) laws. Entitled the Protecting Older Workers Against Discrimination Act, the act is a reaction to a Supreme Court ruling issued nearly 10 years ago which was seen as limiting employees ability to prove age discrimination claims.  Today’s Long Island Employment Law blog discusses the proposed amendment.

In Gross v. FBL Financial Services, the United Supreme Court considered the standard of proof an employee must show to prove an age discrimination case. The dispute centered on whether employees can show mixed motives or whether an employee must show that discrimination was the but-for reason for an adverse employment action.

In mixed motive cases, an employee can prevail by showing that an employer was motivated, at least in part, by a discriminatory purpose. In other words, the employer may have had many reason to fire or demote an employee, but if discrimination was one of the reasons that motivated the employer to act, and if the employee could prove that, then the employee could win.  In but for cases, employees must prove that the employee would not have been fired or demoted in the absence of discriminatory intent.

In February 2019, the New York City Commission of Human Rights issued enforcement guidance concerning race discrimination based on hair.  Today’s Long Island employment law blog discusses this new guidance.

Federal law, New York State law, and New York City law have all made race discrimination unlawful and have done so for many years.  But, New York City has tried to set itself apart from other laws and other jurisdictions by ensuring its laws are liberally construed and that they provide the most protection possible to employees and the public.  Indeed, the New York City Human Rights Law directs courts and administrative agencies to interpret the law separately and distinctly from any other similar laws.

In its latest attempt to distinguish itself as leading the way in anti-discrimination laws, the Commission issued guidance about hair discrimination.  To begin with, the guidance makes clear that discrimination based on racial stereotypes is illegal.  Moreover, the guidance makes clear that hair discrimination can relate to other types of discrimination such as sex, gender, religion, disability, or national origin.  But, the Commission sought to “affirm” that acts which would tend to ban or otherwise inhibit hairstyles associated with Black people is illegal.

If employees gossip or spread rumors about a co-worker falsely having sex with a supervisor, does that constitute a hostile work environment? At least one federal appellate court says yes, at least if the employer knew about the rumors, participated in spreading the rumors, and disciplined the worker based on the rumor.  Today’s Long Island employment law blog discusses this workplace issue.

In Parker v. Reema Consulting Services, the plaintiff was initially hired to a low level warehouse position with the company.  But, in the course of two years, the plaintiff, a female, was promoted several times, eventually to an assistant manager position.  Within weeks of this promotion, male employees began circulating rumors that the plaintiff had a sexual relationship with a high ranking manager, and that she entered into the relationship for the purpose of obtaining the promotions. The rumors started from a male employee who was jealous about the plaintiff’s quick rise to her position.

The plaintiff met with the highest ranking manager at her location to discuss the matter. At the meeting, the manager blamed the plaintiff for “bringing the situation into the workplace,” and warned her that he could not recommend her for any further promotions because of the rumor. He specifically stated she would not progress any higher in the company because of the rumor.

Famighetti & Weinick PLLC are Long Island employment lawyers. We receive many calls each week from potential clients and we hear a wide variety of questions from them. One question we hear a lot is “I thought I can’t sue my employer?” Why do employees ask this question and what’s the answer? Today’s Long Island employment law blog explores this issue.

Personal injury law applies when employees are hurt or injured in the workplace. In New York and on Long Island, workers compensation law covers situations where employees are hurt at work.  Under workers compensation, employees generally cannot sue their employers for workplace injuries.  Because many people are familiar with the concept of workers compensation, they believe that the rule prohibiting lawsuits based on workplace injuries applies to all workplace matters.

But, workers compensation does not act as a prohibition against all lawsuits relating to the workplace.  Even in the world of personal injury, sometimes employees can still pursue lawsuits based on injuries incurred in the workplace.  For example, employees injured from construction site accidents may be able to sue the property owner or a general contractor. Further, employees injured in a car accident may be able to sue the other driver.  Similarly, if a worker is injured on property which does not belong to the employer, the worker may be able to sue the property owner.  Also, New York’s scaffolding law protects employees working with ladders, or otherwise working at heights.  Before concluding that you cannot recover for your workplace injuries in court, it’s best to consult with an experience employment lawyer or a personal injury lawyer.

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.

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