U.S. Justice Department Rules Discrimination Against LGBT Employees Is Legal under Civil Rights Act

The Civil Rights Act of 1964 was intended to extend protections for minorities in the workplace and public accommodations. One of the biggest issues surrounding this historic piece of legislation, however, is the interpretation of the term sex under the Civil Rights Act. Sex can be narrowly interpreted as gender only or in a broader sense include sexual orientation and sexual identity. On July 26, 2017, the Justice Department opted for the first interpretation and announced that it does not regard discrimination against LGBT employees as a violation of the provisions of the Civil Rights Act.

An Ongoing Discrimination Case

A lawsuit filed in 2010 by Donald Zarda asserts that his employer fired him for being gay. The U.S. government is not a part of the litigation; however, the Justice Department filed the amicus brief to bolster the current administration’s position on the matter “in its capacity as the Nation’s largest employer.”

Taking a Broader View

If the Appeals Court did rule in favor of Zarda’s position, it would continue the move toward a wider view of sex discrimination. A recent Federal Appeals Court decision stated that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” noting that a lesbian would not face discrimination if she were a man dating women.

Pushing for a Narrow Interpretation

The Trump administration, however, has made its position on sex discrimination clear with President Trump’s recent announcement that he intends to ban transgender individuals from service with the U.S. military. If a broader construction of the sex discrimination provisions of the Civil Rights Act became applicable, this prohibition would constitute illegal discrimination on the part of the government itself. In this context, the federal government’s interest in the Zarda discrimination case becomes apparent.

A Step Backward

The announcement by the Justice Department puts it into direct conflict with the precedents set during the Obama presidency and with the current policies of the Equal Employment Opportunity Commission. In recent years, court rulings and public opinion have been trending toward a broader interpretation of sex discrimination to include discriminatory acts based on gender identity and sexual orientation.
Vermont, Connecticut, and New York Join Major Corporations to Support Equal Employment Opportunities for LGBT Workers

In a sweeping gesture of support for LGBT rights in the U.S., the leading legal authorities of New York, Vermont, and Connecticut have joined with companies like Microsoft and Viacom asking the Federal Appeals Court in New York to explicitly include LGBT status as a protected class under Title VII of the Civil Rights Act. The attorneys general of these three states have offered their own opinions in support of a broader definition of sex discrimination as defined in the legislation and are hoping for a positive outcome from the Appeals Court later this year.

Widespread Support Among Major Employers

The expansion of Title VII protections to include LGBT employees has received support from numerous companies in the New York area, and across the U.S. Google, Levi Strauss, Microsoft, and CBS are among the most famous names on the list of businesses that have signed on to this cause. Many of these companies pointed to the essential roles of diversity and inclusiveness in creating a productive and profitable work environment.

Support from the EEOC

The Equal Employment Opportunity Commission (EEOC) has filed a brief in support of sexual orientation as a protected class. “…an employer cannot discriminate against an employee based on that employee’s sexual orientation without taking the employee’s sex into account – precisely what Title VII forbids.” The EEOC has long held that discrimination motivated by sexual orientation animus is prohibited and has acted to protect the rights of LGBT individuals against unfair treatment by employers.

Potential for Supreme Court Involvement

The case in question is Zarda v. Altitude Express, concerns the firing of Donald Zarda because of his sexual orientation. Oral arguments before the U.S. Court of Appeals for the Second Circuit commence on September 26, 2017. The case could eventually reach the U.S. Supreme Court for a final determination of the protections afforded to LGBT people in the workplace.

For those who have experienced discrimination in the workplace, finding the right approach can have a significant impact on the outcomes both in and out of the courtroom setting. The employment law experts at Risman & Risman can provide you with the right solutions to resolve your case and to ensure that you receive the best representation possible. Give us a call at 212-233-6400 to schedule a free consultation with our team of experienced and knowledgeable attorneys. At Risman & Risman, we work for you.


Manhattan Court of Appeals to Consider Expanding Title VII Protections to LGBT Workers

The attorneys general of three states have joined the fight against workplace discrimination on the basis of sexual orientation. Vermont, Connecticut, and New York have added their support to that of 50 major companies across the U.S. in asking a federal appeals court to extend the protections of Title VII of the Civil Rights Act of 1964 to workers discriminated against because of their LGBT status. Currently, employees can be passed over for promotion or even fired for their sexual orientation with no recourse under the provisions of Title VII. A ruling in favor of expanding the enumerated protections of the law to include persons who identify as gay, lesbian, bisexual or transgender would be a significant step forward in protecting the rights of all workers.

Major Corporations on Board with Expanding Protections

Among the 50 companies that have signed on to support the expansion of Title VII are such luminaries as CBS, Viacom, Google, Microsoft and Levi Strauss. Sexual orientation is a protected class in 20 of the 50 states as well as in the District of Columbia, Puerto Rico and Guam. The state of New York enacted the Sexual Orientation Non-Discrimination Act in 2002, which prohibits discrimination against LGBT workers. The filing currently before the U.S. Court of Appeals for the Second Circuit could potentially result in a precedent that would ensure equal rights in the workplace for LGBT employees across the nation.

Does Sex Include Sexual Orientation?

While the protections afforded by Title VII explicitly list gender as a class this legislation covers, the crux of the question before the court seems to focus around whether sexual orientation is a subset of sex for purposes of discrimination. The law currently prohibits discrimination in employment based on sex, religious views, race, color and country of origin. If sexual orientation is included in that list, it could provide added protections for those who might otherwise experience discrimination because of their LGBT status.

Types of Discrimination

Title VII prohibits discrimination in job assignments, pay rates, hiring, firing, layoffs, fringe benefits, educational benefits and all other benefits typically accorded to employees in a particular company. It also encompasses sexual harassment cases involving verbal or physical misconduct. The Equal Employment Opportunity Commission has acted on behalf of LGBT workers who claimed discrimination based on their sexual orientation or identity. In the legal system, however, the results have not been as universally favorable.

The U.S. Court of Appeals for the Second Circuit is set to hear arguments starting in September 2017. For New York workers who feel they have been discriminated against because of their sexual orientation, sexual identity or any other protected status under Title VII, contacting a law firm that specializes in these issues can provide added help and support in defending their rights. Risman & Risman are the proven leaders in New York employment litigation and can help protect your rights both in and out of the courtroom setting. Call us at 212-233-6400 to schedule your free consultation. We look forward to the chance to serve you.


New Interpretation of Title VII Could Expand Protections for Workers

The U.S. Court of Appeals for the Seventh Circuit recently announced a ruling that may represent a shift in the way Title VII cases are addressed in the future. In Hively v. Ivy Tech Community College, the appeals court found that discrimination based on sexual orientation was actionable under Title VII and was, in fact, “a subset of actions taken on the basis of sex.” This finding represents a significant break with previous interpretations of Title VII protections and may lead to review by the Supreme Court of the United States.
Alleged Employment Discrimination

The plaintiff in the original case, Kimberly Hively, first filed charges with the Equal Employment Opportunity Commission in December 2013. In her filed documents, she indicated that she had applied for at least six full-time positions with Ivy Tech Community College between 2009 and 2014. During that time, she worked part-time as an adjunct professor for the institution and was openly lesbian. It was Ms. Hively’s contention that the community college had discriminated against her based on her sexual orientation. She was terminated from her employment with Ivy Tech in July 2014.

Prior Court Cases Decided Differently

The appeals court noted that previous decisions, including Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc. in 2000 and Ulane v. Eastern Airlines, Inc. in 1984, had made a distinction between discrimination based on gender and discrimination based on sexual orientation. The Seventh Circuit, however, found that gender stereotypes could be grounds for Title VII charges and noted that the act of being lesbian, gay or bisexual could be seen as failing to comply with gender stereotypes. The court also indicated that the recent Supreme Court decision allowing gay couples to marry had an impact on their ruling as well.

Case Remanded Back to District Court

The Seventh Circuit Appeals Court reversed the original district court dismissal of the charges and remanded the case for further proceedings. The appeals court further went on to state that, in its view, discrimination based on sexual orientation is in fact a form of sex discrimination. A representative of Ivy Tech has made a statement indicating that it does not intend to pursue an appeal to the U.S. Supreme Court. The educational institution, however, does contest the claim made by Ms. Hively that she was discriminated against during her tenure with Ivy Tech and intends to challenge the matter on a factual basis.

For those who may have been the victim of discrimination in the workplace, seeking the help of a knowledgeable and experienced attorney can be a solid first step toward protecting legal rights and ensuring fair compensation for these issues. The New York City employment law experts at Risman & Risman can provide professional legal guidance and representation to ensure the best possible outcomes for your case. Call 212-233-6400 today to schedule a free consultation with the dedicated lawyers at Risman & Risman. We’re here to serve you.


Negative Changes May Be Coming for Class Action Lawsuits in the U.S

A bill currently making its way through the U.S. Congress could change the legal landscape for plaintiffs in personal injury and malpractice cases. Known as the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency (FACT) Act, it was passed by a margin of 220 to 201 in the House of Representatives and is likely to reach the Senate soon. Along with the provisions intended to limit the ability of individuals to recover damages, the action also requires trusts that administer payments to asbestos victims to publish the names and addresses of these recipients on a quarterly basis.

Limiting the Ability of Consumers to Collect Damages

The primary focus of the Fairness in Class Action Litigation Act is to restrict the ability of individuals to qualify to take part in a class action lawsuit. In essence, the provisions of the Act require that each participant proves that he or she has the same degree of injuries as all others accepted to the class. This is nearly impossible to establish in some cases.

• For example, car accidents caused by a manufacturing defect can cause a broad range of injuries that can be tough to compare.
• Pharmaceutical products can cause different and varied medical issues for patients using the same drug at the same dosage.

The Act also includes provisions that will reduce the ability of attorneys to collect on settlements achieved through the class action process. Proponents of the bill argue that the current system allows too many individuals with only minor claims or claims that skew the damages much higher for all parties to the class action. Opponents, on the other hand, note that the new requirements will make it much harder for class actions to attract the number of plaintiffs needed to take on corporate wrongdoers.

Veterans Groups Object to FACT Act

At least 18 veterans’ groups have come out against the FACT Act, noting that it will release personally identifiable information about veterans who have been harmed by asbestos and who receive payments for these injuries. By publishing their names, addresses and a portion of their Social Security numbers every quarter, the FACT Act will potentially increase the vulnerability of those negatively affected by asbestos exposure. Since many of those who receive payments as a result of these exposures are veterans, this could present a serious issue for individuals who served the U.S. with honor in the past.

The bill must still go through the process of Senate approval before being signed into law. For those who have are injured in accidents caused by the negligence of corporate entities, seeking help from a qualified legal team can provide the support needed to participate in a class action suit against these corporations. At Risman & Risman, we focus on providing residents of New York with the most comprehensive employment law and anti-discrimination representation services. Call us today at 212-233-6400 to set up a free consultation. We look forward to the chance to serve your legal needs.


Allegations of Sexual Harassment Stain Reputation of Sterling Jewelry

Sexual harassment is an issue that can severely affect the public image and the profitability of any company. One of the largest and most profitable jewelry firms in the U.S., Sterling Jewelry, recently learned this lesson in a dramatic and public way. The parent company of Kay Jewelers® and Jared® the Galleria of Jewelry is currently facing a private class-action case that alleges a general atmosphere of sexual discrimination and harassment endemic throughout the organization.

Thousands of Employees Affected

The arbitration initially filed in 2008 by a relatively small group of women. It now encompasses the claims of 69,000 women and men who have signed on to the arbitration case since that time. The statements provided by these individuals include some disturbing allegations:

• Members of management allegedly solicited sexual favors as a condition of receiving raises or promotions.
• Stores under the Sterling Jewelry umbrella were scouted by managers at the company to identify women employees considered attractive.
• Inappropriate comments were made about women’s bodies in the workplace.
• Women were routinely paid less than their male colleagues, and men were promoted in preference to more qualified and experienced women in the workplace.
• Blatant sexual overtures and physical contact with female managers occurred regularly at the Sterling Jewelry annual managers meeting. No spouses were invited to attend this event.
• One employee reported that when she attempted to report unwanted sexual advances to the company, she was falsely accused of theft and terminated from her position.

Sterling Jewelry has denied these charges, insisting that the company has measures in place to address any complaints of sexual discrimination or harassment and that these steps have been used effectively to deal with any allegations of misconduct.

An Atmosphere of Secrecy

The employment agreement signed by staff members at Sterling Jewelry precludes the settling of work-related disputes in public courts. These cases must commence at arbitration, which virtually guarantees that both the accusations and the outcomes will remain safely away from the public eye. The release of documents relating to the case was negotiated over more than a year between reporters at the Washington Post, attorneys representing the complainants in the case and the legal team at Sterling Jewelry. It is still not clear why the arbitration has taken so long to resolve.

Damage to Corporate Reputation

Regardless of the eventual outcome of the arbitration case, the release of the sworn statements of some former and current employees has likely done permanent damage to the Sterling Jewelry brand as well as to its subsidiary companies. Since many of the customers in the jewelry industry are women, the public airing of these accusations is likely to have a lasting negative effect on sales for the companies under the Sterling Jewelry umbrella.

If you have been the victim of unwanted sexual advances or sexual harassment in the workplace, the legal team at Risman & Risman can provide you with the help you need to pursue your case in court. We will work with you to determine the most effective strategies to protect your legal rights and hold companies accountable for their actions. Call us at 212-233-6400 to set up a free consultation. We’re here to help.


How to Navigate Minimum Wage Law in the State of New York

Changes enacted in the state of New York have already raised minimum wages for workers in our area and are expected to have a significant impact on local and statewide economic conditions in 2017 and beyond. On December 31, 2016, increases signed into law by Governor Andrew Cuomo increased minimum wages throughout the state to $9.70 per hour.

Some Localities See Even Greater Changes

The plan instituted by Governor Cuomo includes some specific changes for municipalities and regions within New York State.  Long Island and Westchester County have both raised the minimum wage to $10 per hour.  In New York City, the minimum wage was increased to $11 per hour.  Employees of small businesses in the Big Apple, however, will see a slightly smaller increase; the minimum wage for these employees is $10.50 per hour.

Higher than the National Minimum

Since July 2009, the federal minimum wage has been set at $7.25 per hour. The states, however, can set higher minimum wages than this federally mandated wage floor.  The high cost of living in certain urban areas may spur legislation to increase these wage rates in some area.

Some Employees Not Eligible for Minimum Wage

Waiters, hostesses and certain other service personnel who make a significant portion of their income from tips are generally exempted from the federal and state minimum wage requirements and can be paid a significantly lower amount per hour.  If these employees do not receive adequate tips to compensate for the lower wage, however, the employer may be required to make up the difference to ensure a minimum wage for staff members.

Federal Contractors Entitled to a Higher Minimum Wage

Recent legislation enacted by the Department of Labor requires that employees of companies that hold federal contracts must be paid a higher minimum wage, which currently is set at $10.20 per hour. These new minimum wage regulations went into effect at the start of 2017.

At Risman & Risman, we provide the most comprehensive employment law services in New York. If you have been underpaid by your employer, we can provide you with the assertive and effective representation you need to achieve fair compensation. Call us today at 212-233-6400 to set up your free initial consultation. We look forward to the chance to serve your legal needs.

 


Why is Bagatelle In Hot Water That’s Not Intended for Cooking?

Amid allegations that people of color and those who did not meet certain standards of beauty were placed at undesirable tables at the Bagatelle club and restaurant in New York, the company is now facing a discrimination lawsuit from two of its own employees. The allegations outlined in the lawsuit include the following:

• French employees were given preferential treatment when hours and tables were assigned.
• Non-French employees were subjected to verbal and sexual harassment.
• African-American customers were often required to wait much longer than other customers to get a table and were given less desirable locations within the restaurant.

The suit was filed by a current server and a former server at Bagatelle.

An Alleged Pattern of Racial Discrimination

According to the two plaintiffs, Bagatelle had established codes that were used on reservations and bills to identify customers they found undesirable:

• The code DNA stood for “Do Not Accommodate” and was used to mark bills and reservations made by minorities.
• BO was also used to identify customers deemed ugly by management or other staff members.

The suit also alleges that unwanted customers were then placed at Table 157. The table, located at the back, was out of sight of most of the rest of the restaurant and was referred to as the Ghetto Station by employees of Bagatelle. In some cases, patrons of the restaurant who sat at this table might be forced to sit two to a chair to accommodate the size of their dining party.

Bagatelle’s Response

Bagatelle is denying these charges and has issued a statement that reads, in part: “We do not seat patrons based on their race or tolerate discrimination on any basis. While we don’t comment on pending litigation, we intend to defend ourselves and look forward to clearing our name in this matter.”

To learn more about discrimination in the workplace, call the attorneys of Risman & Risman at 212-233-6400. You can view the entire story at http://ny.eater.com/2016/12/30/14124142/bagatelle-race-lawsuit-nyc.


Target Settles Claim for Discriminatory Testing Procedure

Target has agreed to pay $2.8 million to settle charges that its testing procedures for potential candidates was discriminatory based on race and sex. The Equal Employment Opportunity Commission (“EEOC”) commenced this litigation after a reasonable cause finding was obtained post-investigation.

The reasonable cause determination held that during its hiring process Target’s exam disproportionately vetted out applicants for exempt-level professional positions based on race and sex, which violated the Title VII of the Civil Rights Act of 1964.

The EEOC also found that an assessment performed by psychologists during Target’s hiring process was a pre-employment medical examination, violating the Americans with Disabilities Act, which prohibits employers from subjecting applicants to medical tests before an offer of employment.

This settlement figure will go toward the individuals adversely impacted by the hiring process.

As we’ve discussed before, discrimination is not isolated to adverse workplace conditions. It can also include the hiring process and certainly testing for hire that disproportionately impacts a protected class of individual.

Risman & Risman, P.C. wants to ensure that while applying for employment, you or your family member is not disproportionately impacted in your hiring based on your membership in a protect class. If this is the case, please do not hesitate to contact the employment attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


New York City Will Lag Behind Federal Contract Workers’ Sick Leave Allowance

The Obama administration is on a mission to expand protections and rights to as many workers as possible until the president’s tenure is complete at the end of 2016.  In fitting style, President Obama signed an executive order on Monday (Labor Day) requiring federal contractors to provide up to seven days of paid sick leave a year.  This is two full days in addition to what private workers are provided under New York City’s paid sick leave act.

Unfortunately, the executive order will have no real effect until after Mr. Obama’s presidency is complete, since it requires a public comment period to pass before the order becomes law.  The hope here is that a standard is set that will prompt lawmakers, private employers, and state and local governments to expand their leave policies.  In the end, it is good business policy for workers not to be fearful of losing their jobs simply because they come down with something as common as the flu.

The business community and some lawmakers are sure to object to the president’s move; the common misconception being that he is always overstepping his boundaries, however, those with adversarial opinions forget that this move will only apply to employees who work for federal contractors, a mere 300,000 workers.

The president’s order will guarantee both full- and part-time federal contract workers an hour of paid sick leave for every 30 hours worked, for a total of up to seven days a year. The workers could use the leave to care for themselves, a member of their family, a domestic partner or another loved one, or they could take the leave to recover from domestic violence, sexual assault or stalking, similar to the class of persons protected under New York City’s paid sick leave act.

The paid leave order is the latest move by the Obama administration to institute changes on a tiny portion of the labor market, being that the president cannot persuade the government to act in concert with him to benefit the nation’s workforce.  Among other things, the president has signed orders, banning retaliation against workers who discuss their compensation, requiring contractors to pay higher minimum wages, protecting gay and transgender workers from discrimination and providing employees additional information about their pay.

New York City is typically ahead of the curve when it comes to providing protections to workers, but not in this case. It looks like we may have to play catch up here to ensure our law does not end up burdening the worker simply they are sick.

Risman & Risman, P.C. wants to make sure that your employer is not depriving you of your right to take off from work in the event you are ill.  If you believe you or your family member was and/or has been retaliated against in the workplace for calling out of work due to illness, please do not hesitate to contact the employment attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.


FMLA Still Does Not Provide for Paid Family Leave

Last week, Netflix announced that it would expand its paid family leave policy to give new parents unlimited time off during the first year after the arrival of a new baby. This was a pretty monumental headline considering that corporations are under no obligation in New York (and in the rest of the country for that matter) to provide for paid leave to either parent/employee when a new bundle of joy enters their life.

Typically, the only option for a newborn parent is to take family leave under the Family and Medical Leave Act (FMLA); where companies with 50 or more employees must provide an eligible employee with up to 12 weeks of unpaid leave each year for the birth and care of a newborn child.

As you can imagine, there are a ton of problems with the aforementioned law. FMLA doesn’t cover a large segment of the workforce since not everyone works for companies that employ more than 50 people. This leave is also unpaid; so for those employees that don’t have the luxury of company paid family leave, they must endure a loss of income where the need for it is heightened because of the new addition to the family.

Lately, some companies are stepping up and implementing a paid leave policy for newborn parents, but the percentage of companies that have done so in the US is alarmingly low, only 13%. As such, the only certain way to change how family leave is provided is by having a law mandate paid leave; something to consider next time you elect your representative.

Risman & Risman, P.C. is here to ensure that your employer properly follows FMLA. If you believe you or your family member was and/or has been retaliated against in the workplace for asking or taking family or medical leave, please do not hesitate to contact the employment attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.