Articles Posted in Age Discrimination

Each successful employment discrimination lawsuit outcome has certain things in common with all other successful case results. One of the most fundamental things all of these have in common is a well-written complaint that does a good job clearly conveying the facts and that plainly and correctly lays out the applicable law. Each of us has certain things that we’re good at based on professional expertise. If you’re not an attorney, chances are writing a well-pled civil complaint isn’t one of them. Given how critical this piece is to your overall success, it is well worth your while to have an experienced New York workplace discrimination lawyer on your side from the very start.

A “well-written complaint” does certain things highly effectively. One of those things is language that clearly sets out the required elements of your claim and how the facts you alleged meet each of those.

An age discrimination complaint filed by a New York City doctor is a good example of this, as evidenced by the doctor’s success in defeating his former employer’s request for a dismissal of the lawsuit.

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If you’ve suffered discrimination at work, it is important to recognize that bringing a lawsuit that will end in success involves much more than just understanding the factual aspects of what happened. There are also tactical and procedural litigation strategies that can help maximize your odds of success. That’s why a knowledgeable New York employment discrimination lawyer is so important to your case. Your lawyer can take the facts you provide and then generate a winning plan.

A recent national origin and age discrimination case involving an NYPD detective shows ways in which this can be true. A.P., who was born in Russia in 1967, was a detective and a member of the Executive Protection Unit (EPU) charged with protecting the mayor.

During A.P.’s nearly three years with the EPU, 26 of the roughly 30 detectives with the EPU received promotions, but A.P. was not one of those detectives promoted. According to the detective, a “significant number” of the 26 promoted detectives were individuals with fewer years of service and were less qualified than him. Most allegedly were younger than him. Additionally, all were non-Russian.

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In nearly any civil lawsuit, one of the most important hurdles you, as a plaintiff, have to clear is the defense’s motion for summary judgment. If the defense wins, your case gets tossed before even making it to trial. If the defense loses, you may proceed, and you may also discover that the terms of settlement offers proposed by the defense are much fairer than they were before your victory on the summary judgment motion. Wherever you are in the process of pursuing your discrimination case – trial, dispositive pre-trial motions, or just getting started – it pays to have powerful and reliable legal representation from an experienced New York discrimination lawyer.

Here in New York City, workers harmed by discrimination have the advantage of multiple options. They may be able to bring claims under the New York State Human Rights Law, the New York City Human Rights Law, or both.

A recent age discrimination case involving a Brooklyn doctor gives a good view of how the process works, how you can use these laws to your benefit, and what it takes to defeat a defense motion for summary judgment.

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If you are familiar with federal discrimination law, then you likely know that age discrimination, like sex discrimination, race discrimination, disability discrimination, religious discrimination, and sexual orientation discrimination (among others) is prohibited. If an employer has fired you, demoted you, refused to hire you, or taken other adverse employment actions against you because you are older then, with the aid of a knowledgeable New York age discrimination lawyer, you can sue and win in court.

What you may not know, however, is that it is harder to win a federal age discrimination case than it is to win other types of federal employment discrimination cases. A bill that just passed the House of Representatives would change that and make the barrier against establishing a case of federal age discrimination the same as that for all other forms of federal workplace discrimination.

Age discrimination has been a violation of federal law since 1967 when Congress passed the Age Discrimination in Employment Act (ADEA). At that time, the degree of protection older workers received under the federal law was equal to the protection other groups (such as racial minorities and religious groups) received.

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As of mid-April 2020, the coronavirus pandemic has caused the loss of approximately 22 million jobs in the United States, based on the number of unemployment claims around the country since early March. With layoffs becoming increasingly common, New York City employment attorneys are seeing that more and more workers are being asked to sign severance agreements as they are shown the door. State and federal law regulate certain aspects of typical severance agreements, so New York City workers should consider seeking a legal opinion before signing anything.

What Is a Severance Agreement?

The term “severance agreement” can refer to any document that purports to show an agreement between an employer and an employee at the end of the employment relationship. A severance agreement is usually part of a “severance package,” which might include additional compensation besides wages or salary already owed to an employee. This could be a cash payment, stock options, or contributions to a retirement account.

Waivers of Rights in Severance Agreements

The employer, of course, expects something in return. In exchange for the additional compensation in a severance package, a severance agreement might contain a clause waiving the employee’s right to bring claims for wrongful termination, discrimination, harassment, or retaliation. The only way for a waiver of these rights to be enforceable is if the employer gives something in return. This is where severance agreements can be dangerous for workers.

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As of early 2020, the unemployment rate in the U.S. is continuing a downward trend that began several years ago. These numbers, however, usually only show the percentage of the population that is able to work and actively seeking work. It does not include people who are under-employed, can only find part-time or temporary work, or have given up on finding a job. The longer a person goes without a job, the more difficult it can be for them to find one. The New York City unemployment discrimination law is one of the few in the nation to protect against automatic dismissal of job applicants who have been out of work. This type of discrimination can not only perpetuate unemployment, it can also overlap with other types of unlawful discrimination.

Unemployment Discrimination Under New York City Law

The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of an individual’s unemployment. N.Y.C. Admin. Code § 8-107(21). It defines unemployment as being out of work despite being able to start working and actively looking for a job. Id. at § 8-102.

Employers in New York City may not advertise that a job is only open to individuals who are not currently unemployed, or that they will not consider unemployed applicants. They may not base employment decisions, including hiring, rate of pay, and other matters, on an applicant’s unemployment. They may, however, inquire about why an applicant has been out of work. They may consider unemployment as a factor in their decision-making if they have “a substantially job-related reason for doing so.” Id. at § 8-107(21)(b)(1).

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The holiday season means many different things to people: family, friends, food, a general sense of merriment, and so on. It also means that many employers will host holiday parties for their employees, managers, executives, and perhaps clients and customers. The “office holiday party” has a reputation, largely thanks to movies and television, as an unabashedly wild event free from customary rules and restrictions. It is our duty as New York City employment attorneys to remind everyone that the rules still apply, however wild the party might be. Harassment on the basis of any protected category is unlawful. We believe that holiday parties should be fun for everybody, meaning that the fun should never come at anyone’s expense.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, race, color, religion, and national origin. Other federal statutes prohibit age and disability discrimination. The Equal Employment Opportunity Commission (EEOC) has determined that this includes harassment of any employee based on these factors, whether it comes from someone in a supervisory position or not. An employer may be liable in either situation if they are aware of the harassment and fail to make reasonable efforts to address it. The New York City Human Rights Law (NYCHRL) protects a much broader range of categories than Title VII, including sexual orientation and gender identity.

The EEOC has stated that isolated incidents, unless they are particularly severe, do not constitute violations of Title VII or other statutes. This generally applies to violations of the NYCHRL as well. Multiple acts of harassment become a violation of antidiscrimination law when they create a hostile work environment, or otherwise interfere with an employee’s ability to do their jobs.
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A lawsuit filed in a New York state court in Manhattan includes allegations of sexual harassment, but in a rather unusual way. The plaintiff in Hayblum v. Life Alert Emergency Response, Inc., et al., No. 154464/2015, complaint (N.Y. Sup. Ct., N.Y. Co., May 6, 2015), does not claim to have personally been the victim of sexual harassment. Instead, he claims that the defendants unlawfully retaliated against him for reporting alleged sexual harassment in the workplace. The lawsuit asserts causes of action under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).

The defendant produces and operates a medical alert system that enables elderly and disabled users to signal for emergency help at all hours. The company is perhaps best known for its television commercials using the line “I’ve fallen, and I can’t get up!” The plaintiff, according to his complaint, began working for the defendant as a sales representative in its Manhattan office in October 2002. He became a sales manager in April 2006, and he held that position until November 2014.

The plaintiff alleges that he observed “rampant sexual harassment” in the defendant’s Manhattan office. Hayblum, complaint at 8. He claims that the company’s general manager, who was also a director and a vice president, routinely sexually harassed female employees by offering “promotions, perquisites, calls-ins [sic], and leads.” Id. Employees who refused his advances were, the plaintiff claims, denied work opportunities, terminated, or “treated so poorly that they were driven to quit.” Id. The plaintiff’s wife, who also worked for the defendant, was allegedly a “prime target” for harassment. Id.

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A former manager of a high-end Manhattan hotel filed suit against her former employer in Manhattan Supreme Court in November 2012, accusing the hotel of denying her maternity leave and other acts of discrimination. She alleges that the hotel began reducing her job duties after the birth of her child and eventually unlawfully fired her. The case is particularly notable because, after working until a late stage of her pregnancy, she gave birth in one of the hotel’s guest rooms. The lawsuit seeks $10 million in damages.

Tara Kimkee Tan worked as a manager at the Standard Hotel in Manhattan’s Meatpacking District. The 42 year-old Tan alleges that her supervisors told her that she did not “fit the culture” there, which she interpreted to mean that she was not “young, white, thin, childless or male.” She had reportedly gained fifteen to twenty pounds after a difficult prior pregnancy, leading to the complaints from her superiors. Tan claims that, during the four years she worked there, she frequently put in eighty to one hundred hours per week, and she continued to work long hours while she was pregnant.

On April 30, 2011, Tan reportedly went into labor near the end of her shift at the hotel, at around midnight. She alleges that hotel management did not want to disrupt the “Friday night club scene and party” at the hotel, and therefore did not offer her any assistance. She ended up alone in a fifteenth-floor guest room, where she waited for about two hours until her husband arrived from their New Jersey home. He reportedly delivered the baby himself at about 2:30 a.m., with guidance from their doctor via cell phone. Hotel staff then made her leave via a side door, she claims, so as not to disturb the guests.
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Older workers face increased age-based employment bias in this bad economy, several studies report. Older Americans are losing their jobs as companies seek to cut costs, and then they are having difficulty finding new employment. Harsh economic conditions for many American workers and businesses have made age discrimination, often seen as an acceptable business consideration, more and more common. It is crucial for older employees, older job seekers, and employment discrimination attorneys to understand the scope of the problem and the rights and remedies set out under the law.

A study released by AARP, the advocacy organization representing the interests of older Americans, shows alarming trends in unemployment among people over the age of 55. As of July 2011, the average length of unemployment for older workers was 52.7 weeks, up from 20.2 weeks in December 2007. In that same three and a half year period, the unemployment rate for older workers increased from 3.2% to 6.9%. While this is less than the overall unemployment rate of 9.1% in July, it may be growing at a faster rate. Of those unemployed older workers, 53.9% of them met the criteria for “long-term unemployed,” meaning they had been out of work but looking for 27 weeks or longer.

The total number of employed persons over the age of 55 has increased since December 2007, from around 26 million to around 29 million. AARP attributes this less to more older workers finding jobs and more to an overall increase in the number of people over the age of 55. In December 2007 there were about 69.6 million people in that age group in the U.S. As of August 2011, that number had increased by 10.5% to 76.9 million as the Baby Boomers get older. An increase of 3 million employed older workers therefore accompanied an increase of 7 million older people.

A recent case brought by the Equal Employment Opportunity Commission (EEOC) against technology giant 3M demonstrates the issue. The lawsuit alleged that the company laid off hundreds of employees over the age of 45 in violation of federal employment laws. The company allegedly fired older workers, denied training and job advancement to older employees in favor of younger ones, and adopted policies deliberately aimed at developing younger workers to the detriment of older ones. The EEOC’s investigation found an e-mail from the company’s then-CEO directing managers to “tap into the youth as participants in the leadership development.”
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