Discriminatory Taunts and Fat Albert

The NY Post recently reported (http://nyp.st/IN8Ojh) an ex-AIG employee commenced an employment discrimination lawsuit in Federal Court, claiming he was the subject of a hostile-work environment under Title VII and the Americans with Disabilities Act (ADA), stemming from taunts about his race and weight. Earl Brown, 43, an African-American Ivy league-educated lawyer, claimed that on occasion his superior taunted him saying, “Hey! Hey! Hey! It’s Fat Albert!” and in similarly disparaging fashion, “Make sure you grab a bite to eat before this one does! He’s been known to clean out a Danish platter.” No, I am not making this up, as silly and far-fetched as it may seem.  Nevertheless, all claims of hostile-work environment should be taken very seriously and analyzed carefully.

There seem to be two major issues herein. First, the claim for hostile work environment is pretty weak on its face. Mr. Brown has an enormous hurdle to climb in proving such a claim, since Courts normally require an employee show an overly inhospitable and borderline threatening workplace environment. In determining whether Mr. Brown has sufficiently alleged a hostile-work environment claim, the Court will assess a number of factors including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. These factors will be evaluated from both a reasonable person’s standpoint as well as from the plaintiff’s subjective perception. Generally, occasional events of harassment or isolated remarks will not merit relief under Title VII. In order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive. However, a single event can create a hostile environment if the employer’s conduct is sufficiently severe, as in the case of sexual assault. Ultimately, whether a workplace will be viewed as hostile or abusive depends on the totality of the circumstances. Despite Mr. Brown’s claim that these comments severely affected his workplace environment, a reasonable person could argue these comments were simply made in jest. Even if taken to be certifiably serious, the target characteristic of these comments was Mr. Brown’s obesity, and not his race, which unlike his obesity, qualifies him under a protected class. Now, onto the second major problem for Mr. Brown, whether his obesity qualifies as a disability under the ADA.

Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” The first prong of this definition, physical or mental impairment, is further defined as: “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body system: … musculoskeletal, … respiratory … cardiovascular…”

Mr. Brown should have no problem demonstrating that his obesity affects his musculoskeletal, respiratory, and cardiovascular systems.   However, the second prong requires that he prove a substantial limitation, in other words, show he is unable to perform a major life activity that the average person can perform or show he is significantly restricted as to the condition, manner or duration under which he can perform a particular major life activity compared to the average person. In determining whether an individual is substantially limited, the nature and severity of the impairment, the duration or expected duration of the impairment, and the actual or expected permanent or long term impact of or resulting from the impairment is considered. Mr. Brown simply claims that he has difficulty walking long distances.  This is not going to cut it under the ADA requirements.  Additionally, the interpretative guidelines for the ADA indicate that obesity should not be considered a disabling impairment, except in rare circumstances. However, it is important to note that New York Courts tend to be more lenient in their assessment of a disability and have held that gross obesity can qualify as a disability under the New York Executive Law and New York City Human Rights Law.

Although many employees are subjected to a hostile work environment for a variety of different reasons such as discrimination based on age, race, genderdisability, pregnancyreligion, national origin, and sexual orientation (only in New York City), unfortunately, this looks like a losing battle for Mr. Brown.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Striving for Equal Pay for Women

The Equal Pay Act (EPA) requires that men and women employed at the same workplace be paid equally for equal work. A majority in Congress passed this Act in 1963. The subject employment need not be identical, but it must be noticeably equal. Job responsibilities and content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, profit sharing, bonuses overtime pay, stock options, and bonus plans, life insurance, holiday pay and vacation, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and all types of fringe benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.

An individual alleging a violation of the EPA may go directly to court and is not required to file an Equal Employment Opportunity Commission (EEOC) charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.

Title VII also makes it illegal to discriminate based on sex in pay and benefits. Therefore, someone who has an EPA claim may also have a claim under Title VII.

Although this Act has been on the books for several decades, one can argue there has not been enough change to shore up the disparity between how men and women are compensated in the workplace. Statistics tend to support this contention. Women working full time, on a yearly basis in the United States earn a median annual salary of $36,931, compared to men’s $47,715. That translates to American women earning $10,784 less than men each year. Fortunately, Sen. Kirsten Gillibrand of New York is trying to curb this trend and create more transparency and equality in the workplace. Specifically, Sen. Gillibrand, is trying to promote the Paycheck Fairness Act. She has stated “it’s illegal to discriminate against women in pay and if we have better enforcement mechanisms, we can hold more companies accountable.”

If this bill passes it would allow employees to openly discuss and share wage information without fear of retaliation, one of the primary challenges faced by Lilly Ledbetter, who inspired the Lilly Ledbetter Fair Pay Act signed in 2009.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


Age Discrimination in Employment Act at risk, but there is hope

The New York Times recently featured an article focused on the attempts of three senators, one republican and two democrat, to combat age discrimination with the passage of a bill, which would overrule a Supreme Court ruling from 2009.  Clearly this issue is vital since New York City has a very high percentage of residents over the age of 40.  Now, two Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) have joined forces with Senator Patrick Leahy (D-VT), to introduce legislation that restores imperative civil rights protections for workers over the age of 40 that were limited following the Supreme Court’s disproportionately unfair decision in Gross v. FBL Financial.

In Gross, the Supreme Court did away with established precedent that had applied for standards of proof the Supreme Court first set out in construing the Civil Rights Act of 1964 to the Age Discrimination in Employment Act (“ADEA”).  Unjustifiably, the Court found that because Congress did not amend the ADEA to include this changed standard when it codified the standard for sex, national origin, religion, and race claims as part of the Civil Rights Act of 1991, the standard did not apply to age discrimination claims.  Because of this minor discrepancy, the Supreme Court opinion has also had harmful impacts in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

The Protecting Older Workers Against Discrimination Act will reverse the Court’s decision and restore the law so that older workers in this country enjoy the full protections of the law.  All workers, including older Americans, have value to the fabric of our society and our economy and they deserve the protections Congress initially intended.

This act will ultimately perform the following functions:

• The Act reverses the Gross decision and reestablishes the law to what it was originally intended to be.  The Act reaffirms that if discrimination was a “motivating factor” behind an employment decision, the burden is appropriately on the employer to show it obeyed with the law.

• The Act reestablishes that this “motivating factor” structure applies to all anti-discrimination and anti-retaliation laws involving sex, national origin, race, religion, disability and age – treating all workers, and all forms of discrimination, equally.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.