New York Employment Attorney Blog

August 14, 2017

New York Retaliation Investigation Takes Unexpected Turn

The U.S. court system offers those subject to employment discrimination an avenue to bring claims before a judicial body. However, a recent news report describes a New York sexual harassment and retaliation case that originated with employees of the court system. A court clerk alleges that her supervisor in a Brooklyn criminal court made unwanted sexual advances and punished her when she did not comply with his requests. In response, the New York State Court Clerks Association filed a complaint on behalf of the clerk. The complaint alleged that she resisted her supervisor’s unwanted sexual propositions, and as a result, she was demoted from her position in retaliation. Brooklyn court

The Equal Employment Opportunity Commission (EEOC) is a federal agency that provides guidance as to what constitutes employer retaliation against an employee. It is illegal for an employer to punish an employee for engaging in a “protected activity.” This term is intentionally broadly defined, and it includes refusing to follow orders that would lead to harassment and resisting sexual advances from a supervisor. Title VII also prohibits a coworker, employer, or supervisor from sexually harassing another employee.

The court clerk worked under her supervisor for over a decade, and over time her supervisor’s sexual advances became progressively more overt and lewd. For instance, the supervisor asked the court clerk if she ever took naked pictures of herself, commented that she was “one of those hot Latinas,” asked that she sit on his lap at work, and requested that she send him bikini pictures from a recent vacation on a cruise ship. The clerk resisted these sexual advances, and as a result, she was demoted in retaliation because of her refusal to succumb to her supervisor’s requests, the complaint alleges. Her claim draws a link between her “protected activity,” the refusal to supply bikini pictures of herself, and her job demotion.

August 10, 2017

New York Hotel Employees File Sexual Harassment Lawsuit

by Phillips & Associates

The Plaza Hotel, over its 100-year history, has become a New York City icon. Its guests include political dignitaries and world-renowned entertainers; however, a recent lawsuit filed by current and former female employees portrays a very different side to the hotel’s culture.

Six female staff workers of the hotel filed a New York City sexual harassment lawsuit against their employer. The complaint alleges that, under the New York City Human Rights Law, the women were subjected to unwanted touching and lewd remarks from their supervisors and co-workers. Furthermore, the lawsuit alleges that hotel management were made aware of the offensive behavior but ignored the plaintiffs’ concerns. Although the lawsuit against the Plaza Hotel is shocking, sadly, the existence of sexual harassment is not uncommon in the hotel industry. For instance, the owners of a Holiday Inn Express in South Carolina paid $90,000 to settle an Equal Employment Opportunity Commission (EEOC) claim, which alleged that the hotel subjected its female workers to sexual harassment. In addition, a recent report claims that 8 in 10 hotel workers have been harassed at work. Although the hotel management disputes the plaintiffs’ claims, the lawsuit is moving forward, and the plaintiffs plan to file an EEOC charge under federal law.

Federal law makes it illegal for an employer to treat someone differently because of that person’s sex, among other traits. The provisions related to sex discrimination not only prohibit explicit discrimination, such as firing an employee because of that person’s sex, but also prohibit more subtle forms of discrimination against an employee. In addition, unwelcome sexual advances, requests for sexual favors, and other comments or actions targeted at a person’s sex constitute “sexual harassment.” The person or people committing the harassment can be a co-worker, a direct supervisor, or a supervisor in another department. When harassment is brought to the attention of the employer, the employer may be responsible for addressing the issue. If not, the employer might not be free from liability, even if they are not involved in the harassment.

August 4, 2017

Appeal of Gender Identity Discrimination Lawsuit Takes an Unusual Turn

by Phillips & Associates

dominoes Gender identity and gender expression are protected categories under New York City’s employment discrimination statute. Federal law does not expressly address this type of discrimination, and the Supreme Court has not ruled on the issue. Several federal courts have taken steps toward recognizing this as a federal claim, and the Equal Employment Opportunity Commission (EEOC) has recognized it as a valid claim in its own rulings. Recent changes in Washington, however, have raised concerns about the EEOC. After the EEOC appealed the dismissal of a gender identity discrimination lawsuit to the Sixth Circuit, the complainant filed a motion to intervene on her own behalf in early 2017. She cited concern “that the EEOC may no longer adequately represent her interests going forward.” EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424, motion to intervene (6th Cir., Jan. 26, 2017). The court granted the motion in March.

The U.S. Supreme Court has held that Title VII of the Civil Rights Act of 1964 prohibits discrimination that derives from an employee or job applicant failing to conform to common stereotypes about how people of their particular sex or gender should look or act, also known as “sex stereotyping.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Several federal courts and the EEOC have cited Price Waterhouse in ruling that gender identity and gender expression discrimination constitute unlawful sex stereotyping under Title VII. See, e.g., Macy v. Holder, App. No. 0120120821, dec. (EEOC, Apr. 20, 2012).

The complainant in R.G. & G.R. Harris, a transgender woman, alleged discrimination on the basis of gender identity and expression. The complainant informed the defendant of her intention to transition from male to female after several years of employment there. Although she reportedly stated that she would abide by the dress code for female employees, the defendant fired her several weeks later. The EEOC filed suit the following year.

July 31, 2017

Sex Discrimination Lawsuit Alleges Environment of “Pervasive Harassment”

by Phillips & Associates

Tesla auto bots Sexual harassment in specific industries can become the subject of particular public attention when employees speak out about their experiences. This has certainly been true of the financial sector, with many accounts of firm cultures that condone or even encourage harassment of employees in New York City. Sexual harassment, however, is hardly limited to any one industry or region. The technology industry in California has been the most recent recipient of public scrutiny, after allegations of rampant sexual harassment in one major tech company gained wide attention. A lawsuit filed against another prominent Silicon Valley company has kept focus on the region. The lawsuit alleges “pervasive harassment” of female employees, as well as wage disparities and lack of opportunities for promotions. The defendant eventually fired the plaintiff, stating that an internal investigation found her claims to be baseless. Despite this, the lawsuit continues, and it has reportedly inspired others to speak up.

Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sex and other factors. The protections against sex discrimination go beyond prohibitions against blatantly discriminatory practices like refusing to hire someone because of their gender. Courts have found that sexual harassment constitutes unlawful sex discrimination when it involves a demand for some sort of sexual activity or favor in exchange for some employment benefit, or when the harassment is pervasive or severe enough to create a hostile work environment. An employer may be liable for harassment perpetrated by a supervisor or manager. If the alleged harasser is not in a supervisory or managerial position over the recipient, the employer may still be liable if it learns of the harassment and fails to take remedial action.

In 2013, the plaintiff in the lawsuit mentioned above began working for the defendant, which designs, manufactures, and sells electric cars. She eventually received a promotion to a position in the general assembly department as an engineer at the company’s factory in Fremont, California. She was reportedly one of the only women in the department, and she alleges that she received less pay than the male engineers she replaced. She further alleges that less qualified male engineers were promoted over her, that management ignored her reports about problems with quality testing of new vehicles, and that she faced retaliation for those reports.

July 24, 2017

New York Courts Take on Unemployment Discrimination Claims

by Phillips & Associates

A substantial number of people in the U.S. have been out of work for months or even years, despite ongoing efforts to find work. Those people may find themselves in a paradoxical situation, in which lengthy unemployment makes it even harder to find a job. Some jurisdictions have enacted laws to protect people from discrimination on the basis of unemployment. New York City’s unemployment discrimination law took effect in 2013. At least two federal judges in Manhattan have considered claims under the New York City law in the past year. One judge focused primarily on jurisdictional questions, while the other undertook some analysis of the claim.

The New York City Human Rights Law (NYCHRL) defines “unemployment” as the state of “not having a job, being available for work, and seeking employment.” N.Y.C. Admin. Code § 8-102(27). Employers may not discriminate based on an applicant’s unemployment. Id. at § 8-107(21)(a)(1). An employer may not, for example, refuse to consider applicants who are currently unemployed, nor may they make disparate salary offers to unemployed job candidates. Employers are also prohibited from advertising that positions are only open to people who are currently employed. Id. at § 8-107(21)(a)(2).

A 2015 lawsuit in a Manhattan federal court claimed unemployment discrimination under the NYCHRL, which the court considered in an order on the defendant’s motion to dismiss. Szewczyk v. City of New York, et al., No. 1:15-cv-02468, order (S.D.N.Y., Sep. 9, 2016). The plaintiff had been unemployed for about four years when she applied for an Assistant Civil Engineer position with the defendant. She had worked in engineering jobs before, but the defendant’s job listing allegedly stated that “only candidates who are permanent in the title of Assistant Civil Engineer should apply.” Id. at 2.

July 14, 2017

Airlines Present Unique Challenges for Sexual Harassment Claimants

by Phillips & Associates

Norwegian flight attendant Businesses have a duty to protect their customers from dangerous conditions, and they may be liable for damages under a theory of negligence or premises liability. Employers have a duty to protect their employees from certain dangers. These duties sometimes overlap. They could complement one another, as when a business must protect both its customers and its employees from a shared risk. At other times, an employer may have a duty to protect its employees from sexual harassment and other acts by certain customers. This type of situation may arise in any business where employees interact with the general public, but airlines present a particular risk, considering the confined space of an airplane and the duration of many flights. Recent reports on the issue of both sexual harassment and sexual assault on airplanes demonstrate the complicated legal issues that can be involved.

For airline employees, such as flight attendants, an airplane is a workplace, subject to the same laws and regulations as an office, restaurant, store, or other place of business. The fact that an airplane is mobile, meaning that the exact location where an alleged unlawful act occurred might be difficult to determine, does not prevent aggrieved employees from asserting their legal rights. Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and other discriminatory acts in the workplace, applies throughout the nation. It may also apply on airplanes owned and operated by American companies, even if they are traveling internationally. Under Title VII, an employer may be liable for sexual harassment of an employee by a supervisor or manager. It can also be liable for sexual harassment by a coworker or customer, if it knows or should know about the harassment and fails to take remedial action.

Media reports illustrate incidents of sexual harassment and assault on airplanes on a fairly regular basis. These stories are often presented as further examples of uncomfortable and difficult conditions on airplanes, but they have their own distinct importance, in a legal sense, for airline employees. In one example from late 2016, an airline ejected a passenger from a flight, before takeoff, for allegedly catcalling a flight attendant during the safety demonstration. For every story like this one, it is unfortunately likely that many more go unreported.
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July 7, 2017

Federal Caselaw Regarding Employment Discrimination Based on Sexual Orientation May Offer a Guide for Claims of Gender Identity and Gender Expression Discrimination

by Phillips & Associates

gender equality The rights of transgender people have been the subject of multiple victories and setbacks in the past few years. With regard to protections against employment discrimination, New York City law expressly includes gender identity and gender expression as protected categories, as do laws in many other cities and states. At the federal level, however, Title VII of the Civil Rights Act of 1964 does not specifically mention gender identity or gender expression. Many advocates for transgender rights argue that certain judicial interpretations of Title VII’s prohibition on sex discrimination apply its protections to both sexual orientation and gender identity and expression. This argument has had some success at the federal appellate level with regard to sexual orientation. The Equal Employment Opportunity Commission (EEOC) has adopted this view for both types of discrimination. At least one case currently pending in a Circuit Court of Appeals is making a similar argument about the applicability of Title VII to gender identity and gender expression.

Justice William Brennan interpreted Title VII as a clear statement by Congress “that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The plaintiff in that case claimed that she was denied partnership because she failed to conform to common stereotypes about how women should behave. The evidence included a statement by a partner advising her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The court held that this sort of “sex stereotyping” was an unlawful form of sex discrimination under Title VII.

Many advocates and judicial opinions have noted the resemblance of sexual orientation discrimination to the type of “sex stereotyping” addressed in Price Waterhouse. Gay and lesbian employees, the argument goes, do not fit the stereotype of whom individuals should love. Some courts have expressed sympathy for this argument, while also stating that their hands are tied without further action by Congress. See, e.g. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001). Although it has yet to receive much judicial scrutiny, the applicability of the “sex stereotyping” argument to gender identity and expression is not hard to see.

June 28, 2017

Reasonable Accommodations for Pregnant Employees Are Still Not Included in Most Anti-Discrimination Statutes

by Phillips & Associates

Discrimination in employment on the basis of pregnancy, childbirth, and medical conditions related to either is unlawful under federal law and most state anti-discrimination laws. Unfortunately, many of these laws do not protect pregnant employees and employees who have recently given birth from other issues that may arise in the workplace. Fewer than half of the states in the U.S. require employers to make reasonable accommodations for pregnancy and related conditions, such as extra bathroom breaks, adequate seating, or a private area to allow employees to pump breast milk. New York is one of those states, but the failure of a proposed bill in another state, which would have enacted similar protections, shows that there is still much work to do nationwide.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits pregnancy discrimination across the country. This means that an employer cannot fire or refuse to hire an individual solely on the basis of the above factors, nor may they require a pregnant employee to take unpaid leave or reduce their work hours without a valid reason directly related to a particular employee’s job duties. At the state level, the New York State Human Rights Law (NYSHRL) also prohibits pregnancy discrimination, as does the New York City Human Rights Law (NYCHRL).

Federal law contains no express provisions requiring reasonable accommodations for pregnant workers or those who have recently given birth. Some, but far from all, conditions related to pregnancy and childbirth may fall under the Americans with Disabilities Act. Many state laws regarding disability discrimination may also cover some pregnancy-related conditions. At least 18 states and the District of Columbia have enacted laws specifically requiring reasonable accommodations in the context of pregnancy and childbirth.

June 20, 2017

Sexual Harassment Complaints Filed Against Fast Food Chain Could Raise “Joint Employer” Issues

by Phillips & Associates

franchise Employment anti-discrimination statutes, such as the New York City Human Rights Law or Title VII of the Civil Rights Act of 1964, allow workers to assert claims against their employers for certain unlawful actions. Determining an employee-employer relationship, however, is not always easy. In situations in which more than one business might play a role in a worker’s employment, courts have developed the concept of a “joint employer.” A recent series of sexual harassment complaints against a major restaurant chain could require a joint employer analysis.

Discrimination in employment on the basis of sex is prohibited under city, state, and federal laws. The definition of “sex discrimination” has expanded over the years, through both court decisions and legislation, to include practices like sexual harassment and pregnancy discrimination. In a typical sexual harassment claim, a plaintiff must demonstrate that an employer is either directly liable due to actions against the plaintiff by a manager or supervisor, or liable for failing to address harassment by a co-worker of the plaintiff, about which it knew or should have known. Before that analysis even begins, however, a plaintiff must establish that an employment relationship exists.

A worker may receive a paycheck from one company but work at a different company’s site because of a contract between the two companies. When one company handles payroll, but another company directs the employee’s daily work, which one is the “employer?” Another common example of this problem involves franchised businesses. An individual might appear to be employed by a company that operates a national chain of stores or restaurants, but their employer is actually a local company operating under a franchise agreement with a larger company. The local business, or franchisee, would be the employer on paper, but the larger company, or franchisor, might still exercise considerable control over the conditions of employment.

June 15, 2017

Sexual Harassment Class Action Against Jewelry Retailer Includes 69,000 Complainants

by Phillips & Associates

jeweler Sexual harassment continues to be a significant problem in workplaces all over the country. Laws at nearly every level protect employees against sexual harassment and related practices, and the need for these protections is evident every day. A class action first filed over a decade ago demonstrates just how widespread and pervasive the problem is and how complicated its legal remedies can be. The case began in 2006, when over a dozen current and former employees of a major jewelry retailer complained of sex discrimination, including sexual harassment. This led to an ongoing proceeding before the American Arbitration Association (AAA) and a federal lawsuit. Jock, et al. v. Sterling Jewelers, Inc., No. 11-160-00655-08, 1st am. complaint (AAA, Jun. 26, 2008); No. 2:08-cv-02875, am. complaint (S.D.N.Y., Dec. 30, 2009). The arbitrator granted class certification in 2015, and as of early 2017, the class had about 69,000 members. The case was back in the news recently, when lawyers for the plaintiffs obtained permission to release sworn statements by their clients to the media.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of several factors, including sex. The U.S. Supreme Court has held that sexual harassment constitutes sex discrimination in violation of Title VII. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Sexual harassment may be the subject of a class action complaint if the plaintiffs and their claims meet the criteria, including numerosity of complainants and commonality of claims and defenses. See Jenson v. Eveleth Taconite Co., 824 F.Supp. 847 (D. Minn. 1993).

Federal, state, and local employment statutes authorize civil lawsuits against employers for discriminatory practices, including sexual harassment. Many employers require their employees to sign contracts with arbitration clauses, however, which potentially keep them from seeking relief in a court of law. Arbitration is a method of alternative dispute resolution that resembles a civil lawsuit. A neutral arbitrator, who often has experience as a judge, reviews the allegations and evidence from both sides and may conduct hearings. Whether the parties are bound by an arbitrator’s decisions, and the extent to which a court may intervene in or overrule the arbitration, depends in large part on the terms of the employment contract.