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Employment Discrimination

Sunday, May 21, 2017

Employment Discrimination and the “After-Acquired Evidence” Defense


What is the after-acquired evidence defense?

Employees in New York and across the country are protected from discrimination or unfavorable treatment based on certain attributes, such as their race, religion, disability, gender, and sexual orientation.  Employees who believe they have been discriminated against may be able to file an employment discrimination case.  Anyone considering filing such an action should be aware of the after-acquired evidence defense, which their employer may assert.
Read more . . .


Monday, March 20, 2017

Major Jewelry Conglomerate Faces Sexual Harassment Lawsuit


What should I do if I am being sexually harassed at work?

Hundreds of former employees have filed claims of sexual harassment and gender discrimination against Sterling Jewelers, the owner of Jared the Galleria of Jewelry and Kay Jewelers.  Female employees claim the work environment in these mega jewelry stores encouraged sexual misconduct, such as groping and sexual favors in exchange for promotions.  The class action lawsuit was first filed in 2008, but the case remains unresolved.
Read more . . .


Tuesday, February 14, 2017

For Your Own Sake Don’t Do THIS to Your Employees


Dumb, dumb, dumb case from Idaho, reversed by the Ninth Circuit Court of Appeals.  You can find the case here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/03/14-35396.
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Monday, February 13, 2017

JFK Contractor Charged with Violation of NYC’s Human Rights Law


What is NYC’s Human Rights Law and how does it protect me?

A wheelchair assistance service company at John F. Kennedy International Airport (JFK) is facing serious charges for allegedly discriminating against Muslim employees.  The NYC Commission on Human Rights filed religious discrimination claims against Pax Assist, Inc.


Read more . . .


Tuesday, October 18, 2016

Employers Can Ban Dreadlocks in the Workplace


Does Title VII protect hairstyles culturally associated with race?

In September, a federal appeals court ruled that an employer has a right to enforce a dress and grooming policy that prohibits employees from wearing their hair in dreadlocks. The case was initially brought in 2013 by the Equal Employment Opportunity Commission against an insurance claims processing company in Mobile, Alabama that rescinded a job offer to a black woman who refused to cut her dreadlocks.

The Company Dress Code

The woman applied as a customer service representative with the company in 2010. After being hired, she was told by the human resources manager that the dreadlocks needed to be cut since the company's dress and grooming policy requires employees to project a "professional and businesslike image." The HR manager reportedly told the woman that dreadlocks "tend to get messy.


Read more . . .


Wednesday, September 21, 2016

Pushing the Boundaries of Title VII


Does federal law prohibit employment discrimination based on sexual orientation and gender identity?

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees and job applicants based on specific characteristics including race, color, national origin, religion and gender. Currently, as it has been interpreted by case law, Title VII does not protect workers from discrimination based on sexual orientation and gender identity. Moreover, legislation to end these forms of discrimination in the workplace stalled in Congress in 2013.

EEOC Initiative

Now, the federal government agency responsible for investigating employment discrimination claims has weighed in on the issue. The Equal Employment Opportunity Commission (EEOC) issued a bulletin in July stating that Title VII's prohibitions of sex discrimination includes employment discrimination based on gender identity and sexual orientation.


Read more . . .


Thursday, June 16, 2016

Pregnancy Discrimination


What constitutes pregnancy discrimination?

As of May 6, 2016 the definition of pregnancy discrimination was clarified by the New York City Commission on Human Rights under the New York City Human Rights Law (NYCHRL) which gives clear examples of the particular accommodations employers have to make for women relative to pregnancy-and-childbirth-related medical conditions.

Previous Laws Prohibiting Gender Discrimination

Before the new law, the Pregnant Workers Fairness Act (New York City Administrative Code § 8-107(22)(a) already required employers to provide accommodations to pregnant workers to allow them to continue performing their regular duties at work. New York's State Legislature bill, "Protect Women from Pregnancy Discrimination," provided for the expansion of these protections statewide.

Defining Discrimination

The recent guidance offered by the New York City law makes it unlawful to treat an employee or job applicant "less well than others" because of her actual or perceived pregnancy. The following actions are specifically prohibited:

 

  • Refusing to hire someone qualified because she appears to be, or states that she is, pregnant
  • Firing an employee because of her pregnancy
  • Harassing a pregnant employee by commenting on her weight, appearance, age, job commitment or ability to concentrate
  • Excluding pregnant workers from particular job categories
  • Requiring pregnant employees to take unpaid leave at a certain time during their pregnancies
  • Requiring pregnant workers to obtain medical clearance to perform certain tasks if such medical clearance is not required of other employees

     

    Prohibitions of pregnancy discrimination apply in situations in which a woman is expected to become pregnant in the near future as well as in situations in which she is already with child.


Read more . . .


Friday, April 15, 2016

NYC Human Rights Law Strengthened by Amendments to Employment and Public Accommodations


What recent and significant changes have been made to NYC's human rights laws?

Mayor Bill de Blasio has recently signed into law amendments intended to remediate and strengthen the New York City Human Rights Law (NYCHRL), particularly in regard to franchisers, franchisees and lessors. In keeping with the Mayor's stated purpose of improving legislation to protect employees and tenants from having their civil rights violated, he has signed into law amendments designed to:

  • Remove language regarding sexual orientation
  • Give the New York City Human Rights Commission the authority to award attorney fees
  • Add franchiser, franchisee and lessor to the list of those forbidden to discriminate on the basis of gender, race, disability, or any other protected class
  • Make it illegal to deny housing to anyone because he or she is a victim of domestic violence, sex offenses or stalking
  • Make it illegal to use discriminatory advertisements and public statements

It is important for all employers, businesses, and lessors to review their procedures to ensure that they are in compliance with the newly amended NYCHRL. The new legislation requires that "exceptions and exemptions from the NYCHRL be narrowly construed in an effort “to maximize deterrence of discriminatory conduct.”

Another aspect of the amendments to NYCHRL's protections addresses the manner in which discrimination on the basis of sexual orientation should be construed. The new wording states that language of the law should not be construed to:

  • Restrict an employer’s right to require that employees meet certain actual job qualifications
  • Permit employers to inquire about the sexual orientation of their current or potential employees or to adopt affirmative action quotas based on sexual orientation
  • Limit or override any pre-existing exemptions under NYCHRL
  • Legalize any act that violates New York Penal Law
  • Endorse any particular behavior or way of life

In addition, the amendments make it unlawful to "offer benefits, services or privileges" to anyone who is (or is presumed to be) a member of a protected class in such a way that such a person is deprived of the full and equal enjoyment” of those benefits on “equal terms and conditions” as all others who are not members of a protected class.


Read more . . .


Friday, March 11, 2016

EEOC Proposes New Guidance on Employment Retaliation

How does the EEOC define employment retaliation?

Federal and state laws prohibit employers from retaliating against employees who complain about violations of the law, harassment or discrimination by taking adverse actions such as harassing, demoting, or firing these individuals. Now, the Equal Employment Opportunity Commission (EEOC) has proposed new enforcement guidance that expands the definition of retaliation. The commission recently released a document, "Enforcement Guidance on Retaliation and Related Issues" which includes new standards defining retaliation under civil rights and anti-discrimination laws.

What is retaliation?

Currently, it is illegal for an employer to fire, harass or demote employees who complain about violations of the law, harassment or discrimination.  Other adverse actions include discipline, negative evaluations, issuing warnings, salary reductions, and changing shifts or job assignments. Some employees may also be passed over for a promotion. Retaliation may also involve hostile attitudes or behavior by employers, including managers, supervisors or co-workers toward an employee who has complained.

The EEOC relies upon three elements to prove a retaliation case:

  • The employee participated in a protected activity — typically a complaint of discrimination or harassment
  • The employer or manager took an adverse action against the employee
  • There is a causal connection between the protected activity and the adverse action

The EEOC's proposed guidance expands the meaning of each element. First, the protected activity can occur explicitly or implicitly by the employee making a complaint directly or providing information during an investigation. Further, adverse actions can include anything that could be "reasonably likely' to interfere with protected activity, including activities that are not work-related or take place outside of the workplace or actions against third parties such as family members. Finally, the guide lines broaden the scope of causal connection by creating "a convincing mosaic of circumstantial evidence."

How can an employer minimize the risk of retaliation violations?

Employers need to be familiar with applicable state and federal discrimination laws, particularly those related to wrongful termination due to retaliation. In order to be proactive and create a workplace environment that minimizes the risk of retaliation violations employers should:

  • Establish and implement an anti-retaliation policy that defines retaliation and provides specific examples of legally actionable retaliation for managers and supervisors
  • Provide regular training to executives, managers, supervisors and employees on the anti-retaliation policy
  • Create a procedure for employees to report concerns and instances of retaliation
  • Provide a disciplinary measures for retaliation, up to and including termination

While the EEOC's guidance is only a proposal, it comes as retaliation claims are becoming more common. If you are facing a retaliation lawsuit or have questions about how to establish an anti-retaliation policy, you should engage the services of a qualified attorney.


Tuesday, February 23, 2016

Employment Discrimination Protection for Caregivers

What new rights have been established to protect caregivers from employment discrimination?

For many years, caregivers of children, aging parents or disabled loved ones have experienced discrimination both at the workplace and in terms of obtaining employment. Under a new measure signed by New York City Mayor Bill de Blasio on January 5, 2016, caregivers will finally have protections in place to prevent employment discrimination. This law will become effective on May 4, 2016.

Sensitive to the important need caregivers fill in their own homes and in the community at large, Mayor de Blasio referred to them during a ceremony at the Council Chambers in City Hall, as "unsung heroes" who "literally keep families together in times of distress." He further stated, much to the satisfaction of those who have been meeting the challenges of employment discrimination while simultaneously fighting economic, emotional, and health challenges on the home front: "It's critical that we give them the employment protection they deserve."

New Yorkers have been protected for some time from discrimination based on race, religion, age or sexual orientation. Now, as a result of the passage of this new law proposed by Council woman Debi Rose, New Yorkers are also given "caregiver status" class protection under an amendment to the New York City Human Rights Law.

This new protection means that would-be or current employers can't discriminate against caregivers either during the hiring process or in terms of conditions of employment. Conditions of employment include work hours, pay raises and promotions.

Caregivers are defined as those who provide direct and ongoing care for children under the age of 18 or family members relying on them for daily assistance. The law protects employees who care for "covered relatives," including biological, foster, step- and adopted children, or children for whom they are legal guardians, siblings (including half- and step-siblings), parents, grandchildren or grandparents, or children of the caregiver's spouse or domestic partner. Since the definition of a "covered relative" is left open to the Commission's interpretation, it may be expanded to include other family members at the Commission's discretion.

By giving caregivers equal protection under the law, caregivers no longer have to fear losing their jobs because of the necessity of fulfilling essential family obligations. Caregivers now have the same rights to sue their employers for discrimination as do all other protected classes of employees.

If you are experiencing discrimination for any reason in the hiring process or in the workplace, you should contact a competent and compassionate employment law attorney to assist you. 


Monday, January 4, 2016

Lost in the Holiday Shuffle - New York City Mayor Bill de Blasio signs law creating Office of Labor Standards

Just after Thanksgiving, and perhaps lost in the holiday shuffle, Mayor Bill de Blasio signed legislation creating an Office of Labor Standards.  The new office will be responsible for investigating and enforcing violations of city labor laws.

It is not clear whether the new office will be under the jurisdiction of another agency or a stand-alone entity.  No director has been appointed yet.

One of the less publicized purposes of the new law is to educate employers on labor laws to avoid labor law violations by unwary employers.   Mirroring the New York State Department of Labor, the Office will also be empowered to conduct investigations, serve subpoenas, and impose civil penalties on businesses that violate NYC’s labor standards.  Employees do not have a right to sue employers for violations under the new law. 

A main reason the Office was created was to assume responsibility for of the Earned Sick Time Act, briefly administered by the Department of Consumer Affairs, which appeared to be a bit of an awkward fit.  The Earned Sick Time Act mandates sick leave for all but the smallest New York City businesses.  

You can read the legislation itself here:

 http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2264228&GUID=49F08C11-0166-4618-B6F2-F96967DA6574&Options=ID|Text|&Search=743


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