New York Employment Attorney Blog

The National Women's Law Center (NWLC) recently filed a complaint with the Department of Health and Human Services' Office for Civil Rights against a number of both public and private employers over alleged violations of the Affordable Care Act. According to the complaint, the group claims the employers failed to provide adequate maternity coverage to the female dependents of workers in violation of the law. The NWLC alleges this failure effectively results in sex discrimination as it treats pregnant women as a different class and provides them with an inferior level of health care when compared to male dependents.

The NWLC claims Section 1557 of the Act requires health care plans to cover the costs associated with pregnancy for not only insured employees, but also their dependents. The Section states discrimination is not allowed for any health care program that receives federal money. Auburn University, Battelle Memorial Institute, Beacon Health System, Gonzaga University and the Pennsylvania State System of Higher Education are accused of discrimination because many of the health plans offered to workers exclude maternity coverage from the insurance provided to dependent children. The five organizations reportedly employ a combined total of nearly 44,000 workers.

If the NWLC is successful, the health insurance coverage required under the law may be expanded. According to NWLC Co-President Marcia Greenberger, the issue is important because the health care plans are meeting men's needs regardless of their dependency status. Pregnant women, on the other hand, are allegedly being discriminated against in certain situations. She also stated the issue is especially significant because the Act allows dependent children to remain on a parent's health care plan until age 26 whether or not they are married. Data from the nation's Centers for Disease Control and Prevention reportedly claims the average age for a woman in the United States to give birth to her first child in 2010 was 25.4 years.

The Pregnancy Discrimination Act of 1978 requires institutions with more than 15 employees to provide maternity benefits for workers and their spouses. The law does not require maternity coverage for an employee's children. Each year, an estimated 2.4 million women under age 25 allegedly give birth across the U.S.

Employers in New York and throughout the nation are forbidden from discriminating against an employee based on pregnancy, childbirth, or medical conditions related to a pregnancy. Still, pregnancy discrimination occurs frequently and can take many forms. If you feel you were the victim of pregnancy discrimination at work, you are advised to contact a quality attorney.

Continue reading "Complaint Alleges Employer Health Care Plans Unlawfully Discriminate Against Pregnant Dependents in New York and Across the U.S." »

Women make up about half of the nation's workforce. At some point, an estimated 75 percent of female workers will become pregnant. On May 14th, a number of our nation's legislators including New York Senator Jerrold Nadler re-introduced federal legislation that would require employers to provide pregnant workers with the same accommodations disabled employees now receive. The Pregnant Workers Fairness Act (PWFA) was purportedly designed to ensure that pregnant workers are not denied reasonable job modifications which would allow them to continue working. The PWFA's main goal is apparently to keep pregnant employees from being forced out of their job as a result of pregnancy. If the proposed measure becomes law, it would reportedly close loopholes in the Pregnancy Discrimination Act of 1978 that currently allow many employers to deny simple pregnant employee requests such as permission to carry a water bottle or use the restroom more frequently.

According to proponents of the bill, the PWFA would essentially require that employers treat pregnancy in substantially the same manner as a temporary disability now protected by the Americans with Disabilities Act. If the PWFA becomes law, employers would allegedly be required to provide reasonable accommodations to pregnant workers and bar them from denying work opportunities to pregnant women as a result of their need for such accommodations. Senator Nadler said he believes it is unacceptable for the jobs and livelihoods of pregnant women to remain unprotected. He stated the proposed measure would clarify current federal law and underscore the importance of supporting families in New York and across the nation.

According to Vania Leveille, Senior Legislative Counsel at the American Civil Liberties Union, the PWFA would benefit the financial security of pregnant women as well as the health of their children. Leveille added that "No woman should be forced by her employer to choose between earning a living and having a safe, healthy pregnancy."

Currently, employers in New York and across the United States are forbidden from discriminating against a worker based on pregnancy, childbirth, or medical conditions related to a pregnancy. Still, pregnancy discrimination is reportedly quite common. Whenever an employer treats a pregnant worker unfavorably or in a prejudicial manner because of her pregnancy or a related medical condition, discrimination has occurred. Despite that pregnancy discrimination may take many forms, examples include an employer who refuses to hire a pregnant worker, a supervisor who disciplines a pregnant employee over pregnancy-related leave or medical requests, and whenever an employee's opportunity for advancement and promotion is directly impacted by her pregnancy status. If you feel you were the victim of pregnancy discrimination at work, you are advised to contact an experienced lawyer.

Continue reading "New York and Other Senators Introduce Federal Pregnant Workers Fairness Act" »

A 72-year-old Assemblyman from Brooklyn's 53rd Assembly District has reportedly resigned amid a number of sexual harassment allegations. According to reports, Assembly Speaker Sheldon Silver and New York Governor Andrew Cuomo asked Assemblyman Vito Lopez to resign from his position as a lawmaker after at least two reports of sexual harassment and retaliation came to light. After Lopez initially refused, Speaker Silverman apparently sought other avenues to expel the man from the lawmaking body. Lopez, who was first elected to the New York Assembly in 1984, previously stated he would not leave office until his current legislative term ended in June.

In August 2012, Lopez was purportedly accused of sexually harassing at least eight female legislative employees by asking them to join him in a hotel room, placing his hand on their thigh, or asking them to wear skimpy and "sexy" clothing to work. At least one of Lopez's alleged victims supposedly stated she was afraid to report the sexual harassment out of fear the Assemblyman would damage her career. Last summer, Lopez was reportedly stripped of his seniority and censured by Speaker Silver. Still, a Joint Commission on Public Ethics report alleges that Lopez was shielded from further investigation by the Assembly Speaker and others. Despite the report, a special prosecutor stated Lopez would not face criminal charges in connection with the alleged harassment.

Workplace sexual harassment in New York and elsewhere may occur when an employer's promotion and other decisions are based upon an employee's response to unwelcome sexual advances. A worker may be threatened with demotion, termination, or other consequences for refusing a boss or co-worker's sexual advances. In addition, sexual harassment may result in a hostile work environment. This generally occurs when verbal statements or unwanted physical contact unreasonably interfere with a worker's ability to properly perform his or her job. A hostile work environment may also result when an employee is offended or intimidated by a boss or co-worker's behavior.

In New York, sexual harassment is generally considered a form of gender discrimination despite that the applicable laws do not specifically state this. Individuals who were sexually harassed may be entitled to recover financial compensation from their employer as a result of the harm inflicted upon them. If you were sexually harassed by a superior or co-worker, you should discuss your rights with a quality employment law attorney.

Continue reading "New York Assemblyman Resigns Amid Allegations of Sexual Harassment " »

A female sales representative for drug manufacturer Merck & Company has reportedly filed a gender discrimination lawsuit against the company in a New Jersey federal court. According to the woman, the company's sales plans punish women for taking maternity leave and fail to provide female employees with equal opportunity for advancement. The woman, who has apparently worked at the number two drug manufacturer in the United States for approximately nine years, claims she was unfairly demoted and her reputation was harmed after she took maternity leave in 2010.

In her complaint, the woman alleges that Merck discourages the hiring and promotion of female sales representatives. She also claims management actively attempts to persuade pregnant employees to quit their jobs as a result of the current management pay structure. At Merck, a manager's compensation is purportedly impacted by employees who take federal and state-protected maternity leave. According to the woman, male workers are provided with more opportunities to develop industry contacts while females are allegedly told to choose between a family and a career. The woman also apparently asked the court to certify a class-action lawsuit for female Merck sales employees who suffered employment discrimination since October 2009.

A representative for Merck has reportedly denied the allegations and said the company has "a strong anti-discrimination policy." Still, this is not the first time a drug company was accused of gender and pregnancy discrimination. In 2010, a Manhattan jury ordered drug manufacturer Novartis to pay approximately $250 million in punitive damages over similar allegations.

Sadly, pregnancy discrimination is common. Pregnancy discrimination results when an employer treats a pregnant employee unfavorably or in a prejudicial manner due to her pregnancy or medical conditions related to a pregnancy. Although pregnancy discrimination can take many forms, it normally results when and employer refuses to hire a woman who is pregnant, decreases the number of hours or assignments for a pregnant employee, disciplines a pregnant worker in response to pregnancy-related leave requests, or when an employer fires, demotes, or refuses to promote a woman as a result of her pregnancy. If you believe you were the victim of pregnancy discrimination, you should contact a quality attorney to discuss your rights.

Continue reading "Merck Sales Representative Seeks Class Status in Gender and Pregnancy Discrimination Lawsuit " »

The Second Circuit Court of Appeals has reportedly found that a worker's sexual discrimination lawsuit may proceed despite that there was substantial evidence she performed her work in a mediocre fashion. In Mihalik v. Credit Agricole Cheuvreux North America, a worker sued her former employer, Credit Agricole Cheuvreux North America (Cheuvreux), for discrimination and retaliation under the New York City Human Rights Law following her termination after nine months of employment. According to the worker, the company's Chief Executive Officer (CEO) made inappropriate sexual comments to her from early on in her employment. The CEO also allegedly propositioned her for sex, showed her pornographic materials, and fostered an overall "boy's club atmosphere." After she allegedly told the CEO his conduct was inappropriate and unprofessional, she was terminated for poor performance.

At the trial court level, the Southern District of New York found there was sufficient evidence to demonstrate that Mahalik performed her job duties poorly and granted Cheuvreux's motion for summary judgment. On appeal, the Second Circuit held that the lower court should have allowed the case to go to trial because a genuine issue of fact with regard to the plaintiff's gender discrimination and retaliation claims existed. Because of this, the plaintiff will finally receive her day in court.

Normally, there are two categories of sexual harassment by a co-worker in a New York workplace. The first type relates to when an employer's promotion and other decisions are contingent upon a worker's response to unwelcome sexual advances. In addition, an employee may be threatened with termination, demotion, or other consequences for refusing such advances. The second category is often referred to as hostile work environment harassment. A hostile work environment may result when verbal statements or physical contact unreasonably interfere with an employee's ability to properly perform his or her job. In many cases, a hostile work environment results when a worker is intimidated or offended by co-worker behavior as was allegedly the situation in this case.

Federal anti-discrimination laws, the New York State Human Rights Law, and New York City's anti-discrimination law prohibit employment discrimination based on sex or gender. In general, sexual harassment is considered a form of gender discrimination despite that the applicable statutes do not specifically state so. In the past, individuals who were sexually harassed in New York have recovered financial damages for harassment by a person of the same or opposite gender.

Continue reading "Federal Court Says New York City Gender and Harassment Case Must Go to Trial" »

Sexual harassment at conventions has gained substantial attention in recent years, as conference attendees have begun to speak out about their experiences and call for change. Conventions in traditionally male-dominated industries and interests, such as gaming, have been at the center of much of the recent discussion. Sexual harassment among gamers is unfortunately a common occurrence, but people are now speaking out about their experiences and exposing the sexual harassment that occurs in real-life encounters among both gamers and gaming professionals. While sexual harassment can affect anyone, much of the recent attention has focused on harassment of female conference attendees by men. We have previously addressed concerns about sexual harassment at conventions in New York on this blog. The question remains of how best to represent an individual who has experienced sexual harassment, since anti-discrimination laws may not always apply to the convention setting.

Meagan Marie, an employee of the company that develops the Tomb Raider game series spoke out about her experiences at the Boston gaming convention PAX East in March 2013. She was organizing an event for "cosplayers," people who dress up as characters from video games at conventions and other events, specifically for the Lara Croft character from Tomb Raider. A journalist asked for an interview with the group of women, and allegedly began asking a series of explicitly sexual questions. Marie intervened in the interview, and claims that the journalist responded with a "cosplay is consent" argument, essentially arguing that dressing as a sexualized character like Lara Croft implies consent to harassment. Convention organizers reportedly ejected the journalist, but Marie's account of the incident led to many more people coming forward with similar stories. The attitude that women at these events invite harassing behavior seems to be widespread.

Continue reading "Women Speak Out About Sexual Harassment in the Gaming Industry" »

A former vice president at a New York City bank has filed a federal lawsuit alleging discrimination and retaliation in violation of state and city law. Zhao v. Deutsche Bank, AG, No. 1:13-cv-02116, complaint (S.D.N.Y., Mar. 29, 2013). The lawsuit claims, in part, that the bank discriminated against her because of her gender, retaliated against her for reporting discriminatory treatment, and used her pregnancy as a pretext to terminate her employment. It asserts violations of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), both of which prohibit gender discrimination. The case illustrates the close relationship between pregnancy discrimination and other forms of discrimination based on gender.

According to her complaint, plaintiff Heather Zhao began working at Deutsche Bank in Manhattan in August 2010, in the position of Vice President in the bank's Global Investment Solutions Group (GIS). She claims that she received consistent praise for her work from direct supervisors, including the receipt of a $50,000 bonus after only five months. The problems began, she alleges, when Karim Ghannam joined the bank in January 2011 as "Global Head of Private Markets." Complaint at 7. He allegedly began to "marginalize her role" within the company, id., by transferring her to less-prominent positions and reducing her pay. Zhao claims that he tried to intimidate her through negative performance reviews, while allegedly making it clear that her gender was the basis of the discriminatory treatment. She reported this treatment to the human resources office in late 2011.

Continue reading "Lawsuit Against Bank Alleges Gender and Pregnancy Discrimination in Violation of New York City and State Law" »

A driver for United Parcel Service (UPS) in New York has complained to the Equal Employment Opportunity Commission (EEOC), alleging that her employer unlawfully discriminated against her when she was pregnant. She has the assistance of the American Civil Liberties Union (ACLU), which filed the complaint on her behalf, asserting violations of state and federal anti-discrimination law. Pregnancy discrimination remains a difficult problem, as it can involve discrimination based on gender, a temporary disability, or a combination of the two. The law relating to pregnancy discrimination as a disability is not nearly as well-settled as gender discrimination law. New York's Governor Andrew Cuomo is currently proposing legislation that would expand protections for pregnant women in the state.

The ACLU published an account by the complainant, Julie Desantis-Mayer, in January 2013, in which she described her experience after telling her employer about her pregnancy. She states that she worked at UPS for almost a decade, beginning as a part-time employee and advancing to a full-time driver position. She claims that, prior to her pregnancy, the company allowed her to perform light-duty tasks, including after she suffered an injury on the job in January 2012. When she informed her manager of her pregnancy, however, she claims that she was told that no light-duty positions were available. Her doctor had reportedly instructed her not to lift anything heavier than twenty-five pounds, requiring a lighter-duty assignment.

Continue reading "EEOC Considers Case of UPS Worker Allegedly Forced Into Unpaid Leave Due to Pregnancy" »

A yoga instructor who studied under Bikram Choudhury, the founder of Bikram Yoga, has filed a lawsuit accusing him of, among other claims, employment discrimination, sexual harassment, and retaliation. Baughn v. Choudhury, et al, No. BC502424, complaint (Cal. Super. Ct. - Los Angeles Co., Mar. 7, 2013). She later became an instructor in studios teaching the Bikram style of yoga, and alleges that he continued to harass her and retaliated against her for speaking out.

According to her complaint, plaintiff Sarah Baughn dropped out of college in 2005 at age 20 and borrowed money to attend the Bikram Yoga Teacher Training in order to become a certified Bikram instructor. Uncomfortable encounters with Choudhury allegedly began almost immediately. She claims that he summoned her to his office on the fifth day of training and propositioned her for a relationship, which she rebuffed. She informed the head of the training program the following day, and claims that he was well aware of the treatment of women in the program. He allegedly advised her to "separate the man from the teacher," Baughn, complaint at 9, advice she claims she received repeatedly in response to complaints of Choudhury's behavior. Choudhury allegedly continued to make unwanted advances during training, and made unwanted and unsafe physical contact, including, she claims, holding her in a stretch that "re-tore her hamstring." Id. at 11.

Continue reading "Lawsuit Accuses Famous Yogi of Sexual Harassment" »

A former employee of a California public health plan filed a lawsuit in February 2013 accusing her former boss of sexually harassing her. Lucas v. Regional Government Services, et al, No. 56-2013-00432444-CU-OE-VTA, complaint (Cal. Super. Ct. - Ventura Co., Feb. 22, 2013). The plaintiff further alleges that she was fired in retaliation for complaining about the harassment. The lawsuit names the health plan and its management company as defendants.

The plaintiff began working for Regional Government Services (RGS) in January 2011 as an administrative assistant. RGS managed the Ventura County Managed MediCal Care Commission, which does business as Gold Coast Health Plan (GCHP). GCHP's then-CEO Earl Greenia and human resources director Candice Limousin reportedly interviewed her. The plaintiff claims that her relationship with Greenia was initially very professional, but that over time his questions became more "personal," more about her appearance and romantic life and less about her work goals. Greenia allegedly stared at her and made comments about her clothing that she found inappropriate. She did not complain at this time, she says, for fear of losing her job.

The plaintiff alleges in her complaint that Greenia's harassment worsened considerably starting in July 2011. She claims that he would brush up against her, make other unconsented contact, and make sexual jokes or remarks. He continued, she states, even after she told him multiple times to stop. She tried to report her concerns in February 2012 to Limousin and RGS HR manager Jennifer Bower. The plaintiff alleges that neither individual took her complaints seriously. She eventually took a leave of absence because the stress was making her physically ill. She claims that she experienced nausea, vomiting, and weight loss, as well as fainting spells that required an ambulance to pick her up at work on one occasion. In March 2012, while the plaintiff was on leave, Greenia resigned as GCHP's CEO. RGS informed the plaintiff shortly afterward that it was terminating her, effective August 31, 2012.

Continue reading "Medicaid Group Faces Sexual Harassment Suit by Former Employee" »

A lawsuit filed in a Manhattan federal court by a male dog trainer alleges that his female employer sexually harassed him at her home. Artrope v. Bludhorn, et al, No. 11-cv-5891, complaint (S.D.N.Y., Aug. 23, 2011). The plaintiff is asserting a cause of action for violation of the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq. Because the suit also asserts causes of action under federal wage statutes, he filed the case in federal court.

The NYSHRL, federal anti-discrimination laws, and New York City's anti-discrimination law all prohibit employment discrimination based on sex or gender. Sexual harassment is generally considered to be a form of gender discrimination. The statutes do not specify gender with regard to sexual harassment. Plaintiffs have recovered damages for male-on-female and female-on-male harassment, and for harassment by a person of the same gender as the plaintiff. The term "reverse sexual harassment" occasionally appears in discussions of cases that do not fit the standard narrative of male-on-female harassment, but workplace harassment of a sexual nature is sexual harassment, no matter the gender of those involved.

Continue reading "New York Lawsuit Alleges Sexual Harassment by Female Boss Against Male Employee" »

A restaurant has settled a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) for alleged discrimination against a former employee based on pregnancy. EEOC v. Reed Pierce's Sportsman's Grille, LLC, No. 3:10-cv-00541, consent decree (S.D. Miss., Feb. 5, 2013). The former employee will receive $20,000 in compensatory damages and back pay, and the restaurant will modify its employment policies and provide anti-discrimination training for its managers. The EEOC brought the lawsuit under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on gender and pregnancy, and Title I of the Civil Rights Act of 1991, which allows causes of action for intentional acts of employment discrimination.

The EEOC filed suit on behalf of a complainant who alleged that Reed Pierce's, a restaurant in Byram, Mississippi, fired her because she was pregnant. The complainant worked as a waitress at the restaurant, and informed her supervisors of her pregnancy in November 2008. The restaurant allegedly allowed other employees, who were not pregnant, to leave work because of illness or for doctor's appointments, and it offered light duty to other employees who were suffering from health issues. It denied the complainant's request to leave work in February 2009, she alleged, after she suffered an allergic reaction to prenatal vitamins. It allegedly denied a similar request from her the following month to leave work for an appointment with her doctor. The restaurant terminated the complainant's employment on March 7, 2009. According to the EEOC, it advised her at the time that "her pregnancy was interfering with her ability to perform her job." Reed Pierce's, am. complaint at 3-4 (Oct. 18, 2010).

Continue reading "Pregnancy Discrimination Lawsuit Brought by EEOC Settles for $20,000" »

A California woman has filed a lawsuit against her former employer, alleging that it fired her after learning that she was pregnant. She claims that the pregnancy was not the primary reason for her termination, but rather the fact that she engaged in sexual activity while not married. She acknowledges that this went against a "community covenant" that her employer, a Christian college, required her to sign when it hired her. Her lawsuit asserts causes of action under state law for wrongful termination.

The plaintiff worked as a financial specialist at San Diego Christian College. She alleges that a supervisor asked her if she was pregnant in October 2012, and fired her when she confirmed her pregnancy. The school then allegedly offered her job to her then-fiancé, who is now her husband, despite the obvious inference that he had also engaged in premarital sex. The couple is expecting a child in June 2013.

The school reportedly required the plaintiff to sign a two-page "community covenant" when it hired her. NBC Los Angeles reports that the covenant, which both students and employees must sign, prohibits "sexually immoral behavior including premarital sex," "Prejudice based on race, sex, or socioeconomic status," and other acts deemed unacceptable. The covenant provides for "appropriate action" if a violation occurs, including "withdrawal from the community," but does not specify any consequences. The plaintiff acknowledged signing the covenant, telling NBC's "Today" that she "needed a job in this economy and...never thought that anything would happen."

Continue reading "Pregnant Woman Sues Former Employer, Claiming It Fired Her for Engaging in Premarital Sex" »

An art production in late 2011 in Los Angeles drew criticism for alleged exploitation of the performers, including an open letter from a performer who declined to participate. The performer noted a lack of standards, official or unofficial, that protect the rights of performers in the art world, unlike in the music and film industries. The risks and realities of harassment and discrimination against artistic performers resembles ongoing efforts by New York City fashion models to oppose sexual harassment and exploitation.

Sara Wookey, who describes herself as a "professional dancer and choreographer," wrote an open letter published by ARTINFO.com on November 23, 2011. She described her experience auditioning for a production by the performance artist Marina Abramovic for the Los Angeles Museum of Contemporary Art's (MOCA's) annual gala. Abramovic reportedly selected two hundred performers to participate. The role offered to Wookey involved recreating a 2002 Abramovic work entitled "Nude with Skeleton" with five other women. Throughout the performance, she said, the six women were to "lie naked and speechless on a slowly rotating table" for almost four hours, without moving. She was told to "ignore...any potential physical or verbal harassment" during that time. She would have to attend fifteen hours of rehearsal, and would receive a total of $150. Organizers told her that they could not guarantee protection if she found herself in "distress" during the performance. For these reasons, she declined to participate in the production.

Abramovic is famous in art circles for her controversial and provocative productions focused on the human body. Many of her productions have involved her own body, including Rhythm 0, where she sat immobile for several hours next to a table with 72 objects, ranging from a feather boa to a loaded pistol, and invited the audience to use the objects on her in whatever way they wanted. Her 2011 production for MOCA combined several of her past works, and largely involved performers positioned throughout a reception and dinner party (link contains nudity). Guests could interact with them, but the performers were not permitted to move or react.

Continue reading "Criticism of Art Production Highlights Lack of Protections for Performers" »

An up and coming fashion model recently made public statements supporting a photographer who has gained notoriety for his sexualized imagery of young female models. This has led to allegations of sexual harassment and exploitation. She essentially states that models simply should not work with this photographer if they do not want to face the sort of sexual requests for which he is apparently known. The issue of sexual harassment in fashion has only recently begun to gain widespread notice, with some New York fashion models standing up against the lack of privacy and sexual expectations that seem to be part of the culture.

The fashion blog Refinery29 quoted a now-deleted blog post by model Charlotte Free regarding photographer Terry Richardson, in which Free wrote "Terry likes to do sexy stuff...If you don't wanna be part of it, make it clear in the beginning." Free's remarks seem to ignore the power imbalance between a young fashion model and a famous photographer, and assume that models in an uncomfortable situation would have the ability to refuse demands from the person who has the immediate power to fire them.

Free goes on to say that there are "plenty of other girls waiting in line, so he's not forcing you..." Refinery29 describes this as "victim shaming." Free also makes overt references to models providing sexual services in exchange for the opportunity to work with Richardson. The implication, it would seem, is that anyone not wanting to work in sexualized conditions can be replaced. This contradicts her earlier statement, when she suggests that models should refuse requests with which they are uncomfortable. Work for fashion models may not be so plentiful that anyone could refuse work after they are already on the set.

Continue reading "Fashion Model's Support of Controversial Photographer Demonstrates the Difficulty of Addressing Sexual Harassment in the Fashion Industry" »