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.

New Form of Employment Discrimination in New York City

New York City residents are well aware of the current state of the national and local economy, and the difficulty of locating work when being unemployed for an extended period of time.  With so many forms of employment discrimination, including, but not limited to, race discrimination, gender discrimination, religious discrimination and sexual orientation discrimination, a novel and disturbing form of employment discrimination is rearing its ugly head, discrimination based on employment status.  This new form of discrimination is running rampant.  Residents of New York City are not in control of their employment status and they certainly should not be denied new employment because of their current employment status.

Fortunately, New York City politicians are making a concerted effort in putting forward new legislation which would make it against the law to discriminate based on employment status.

When asked about this matter, New York City Council Speaker Christine Quinn reported to Channel 2 CBS News that this behavior was “shocking.”

Councilwoman Quinn further stated that the New York City Council is poised to pass a bill to make it illegal for an employer to use someone’s employment status against them in a job application.

“We’re gonna say, Employers, you cannot discriminate against the unemployed,” she said. “How are we ever going to get unemployment numbers down if we allow companies to continue to say only people with jobs can get jobs?”

Hats off to the New York City Council for taking a proactive approach in combating this new form of employment discrimination. We applaud them for fighting the “good fight” and we pledge to do the same in protecting employees from all forms of employment discrimination.

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.

Disparate Impact and the New York City Fire Department

Recently, New York City was ordered to pay as much as $128 million in back wages to minority candidates who took the New York City Fire Department’s (“FDNY”) screening test but were never hired, according to a ruling by a federal judge who had deemed the test discriminatory in violation of the disparate impact section of Title VII of the Civil Rights Act of 1964.

Over two thousand minority applicants are likely to share in the verdict, which is intended to “recreate the conditions and relationships that would have been had there been no unlawful discrimination,” according to the Court’s order.

After four years of tenuous and querulous litigation in which the city and the FDNY was charged by the Justice Department and, later, the Vulcan Society, a fraternal organization of black firefighters, of using screening exams that had a disparate impact on black and Hispanic candidates for entry-level firefighter positions. The FDNY has remained a categorically biased organization for decades, with limited hiring of minority applicants, fewer than 3%.

Judge Nicholas G. Garaufis of Federal District Court in Brooklyn, utilized the analyses of Bernard R. Siskin., a Justice Department expert in calculating what the payout would be for these disparately impacted minority applicants.

Dr. Siskin estimated the number of applicants who would have become firefighters if black and Hispanic applicants had passed the entrance exam at the same rates as whites and calculated the wages they would have earned.

The final determined number for the payout is subject to reductions for the actual earnings of each plaintiff during the period.

Every minority applicant who took the FDNY’s screening test in 1999 or 2002 and was not selected should receive notice that they could be eligible to receive payments as a part of the class. Those applicants will then have to prove in hearings how much they actually earned during the period they could have been firefighters. Each applicant will then earn a proportion of the difference between the total earnings of the class and the $128 million.

Under Title VII the FDNY minority applicants were required to show disparate impact in the screening by:

(i) demonstrating that a respondent [FDNY] uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.

(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

Here, the FDNY minority applicants were able to represent that the test in itself disparately impacted minority impacts compared to the rest of the field.  As such, their claim was meritorious.  Hopefully this hard hit for the FDNY and New York City will lead to more progressive testing and minority applicant hiring.  New York City is an extremely diverse place, which is something we take pride in as New Yorkers. The FDNY should celebrate this diversity as well.

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.

Pregnancy Discrimination vs. Reasonable Accommodation

Dina Bakst, in her Jan. 31 Op-Ed article, “Pregnant, and Pushed Out of a Job,” disappointingly did not distinguish between two very specific and different legal terms, “accommodation request” and “pregnancy discrimination.”  Additionally, she failed to recognize New York City’s Human Rights Law (“NYCHRL”), one of the strongest laws in the nation protecting New York City’s citizens.

Pregnancy discrimination (which is illegal under Federal, State and City Law) is discrimination on the basis of pregnancy, childbirth or related medical conditions.  Accommodation requests are mandated and required to be provided by an employer for the purposes of accommodating a documented disability, when that request is reasonable in nature.   Reasonableness is measured by whether the accommodation causes undue hardship to the employer.  Since pregnancy (an amazing and beautiful blessing) is not considered a disability under any law in the nation, employers are not required to provide such accommodations.  This is not to say that an employer can go and deny maternity leave, fire based on pregnancy, decrease pay, etc.  But there is no requirement under the current laws which require an employer to accommodate a pregnant woman’s condition.  So what is there left to do?

Here, I do agree with Ms. Bakst that the legislature must step up to reform the current laws in order to better accommodate pregnant women in the workplace.  However, it is not entirely accurate or fair to bash the legislature for creating laws which do provide protections for pregnant women, ensuring their job security when they decide to bring a new child into the world.  Let’s applaud the legislature for laying the groundwork, but insist that they could always do more.

We are always here to help.  If you believe that you or your family member was a victim of pregnancy discrimination 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.

How Often Does Sexual Harassment Occur in the Workplace

Approximately 15,000 sexual harassment cases are brought to the Equal Employment Opportunity Commission (EEOC) each year. Remember, many more actions are brought privately by sexual harassment attorneys. According to the EEOC, the number of sexual harassment complaints filed by men has more than tripled in recent years. Currently, approximately 11% of claims involve men filing against female supervisors.

A telephone poll conducted by Louis Harris and Associates on 782 workers revealed:
• 31% of the female workers claimed to have been harassed at work
• 7% of the male workers claimed to have been harassed at work
• 62% of targets took no action
• 100% of women claimed the harasser was a man
• 59% of men claimed the harasser was a woman
• 41% of men claimed the harasser was another man

Of the women who had been harassed:
• 43% were harassed by a supervisor
• 27% were harassed by an employee senior to them
• 19% were harassed by a coworker at their level
• 8% were harassed by a junior employee

Studies suggest anywhere between 40-70% of women and 10-20% of men have experienced sexual harassment in the workplace.

In a survey of 9,000 clerical and professional women, 92% of respondents experienced overt physical harassment, sexual remarks and leering, with the majority regarding this behavior as a serious problem at work.  Nearly 50% said they or someone they knew had quit or been fired because of sexual harassment, and 75% believed that if they complained to a supervisor, nothing would be done.  These statistics are incredibly alarming. Being that this unconscionable behavior is still so rampant in the workplace, laws should seek to protect targeted individuals rather than protect employers from their non-delegable duty to protect their employees from a hostile environment.

Unfortunately, Federal law seeks to shield employers from liability based on grossly negligent actions perpetrated by supervisors toward lower level employees. Specifically, this affirmative defense to sexual harassment liability under Title VII is available to employers when an employee claims harassment by a supervisor and the employer takes no tangible employment action against the employee and exercises reasonable care to prevent and correct the harassing behavior, and the employee fails to take advantage of any preventative or corrective opportunities provided by the employer. Luckily, New York City’s Human Rights Law is more evolved, disavowing the Federal affirmative defense. The New York City Human Rights Law imposes strict liability on an employer for a supervisory employee’s sexual harassment.

If you believe that you or your family member was a victim of sexual harassment 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.

New York City Human Rights Law vs. Americans with Disabilities Act

New York City’s citizens typically have an extremely liberal and tolerant attitude toward people of various backgrounds, religions, and sexual orientations, however, as surprising as it may seem, there exists an enormous amount of bias toward people with disabilities in the workplace.  This bias can manifest in several different ways: 1) harassment because of a known or perceived disability; 2) failure of an employer to provide reasonable accommodations for a disability; 3) retaliation against an employee for requesting an accommodation for a disability; and finally 4) termination because of a disability.  We will explore what constitutes a disability under the New York City Human Rights Law (“NYCHRL”) and provide some examples of disabilities covered under the law to give you a better understanding of your protected rights as as an employee.

The definition of disability under the NYCHRL is less restrictive than under the American with Disabilities Act (“ADA”).   New York State Courts look only to the NYCHRL for purposes of defining a disability.  Reeves v. Johnson Controls World Services Inc. (2d Cir. 1998).  Under the NYCHRL, the term disability means any “physical, medical, mental or psychological impairment or record of such impairment.” Gibbon v. City of New York (S.D.N.Y November 25, 2008).

The NYCHRL has no requirement that an impairment “substantially limit” a person in some major life activity, and thus the requirement is much broader than the ADA.  Weissman v. Dawn Joy Fashions (2d Cir. 2000).   The NYCHRL lenient standard for disability empowers employees to take action based on discrimination of an impairment rather than requiring them to demonstrate a substantial limitation of a major life activity.   Let’s look at some examples.

In Shannon v. Verizon New York, Inc (N.D.N.Y. 2007), the Court found that incontinence (overactive bladder), while not considered a disability under the ADA, is considered a disability under the NYCHRL.

In Smith v. Pilgrim Power Electrical Contracting LLC (S.D.N.Y. September 6, 2011), the Court found that “prostatitis – which is inflammation of the prostate gland,”  constitutes a disability under the NYCHRL.

Additionally, the definition of disability under the NYCHRL is broad enough to embrace persons who, contend that they are not disabled but whom the potential employer perceives wrongfully to be disabled (employer believed that employee was using opiates as a result of urine test, while employee states that finding was a result of his ingestion of health bread containing poppy seeds).  John Doe v. Roe Inc. (1st Dept. 1990).

In the case of Grullon v. South Bronx Overall Economic Development Corporation (Court of Appeals, 2000), the Court found that the plaintiff was disabled or perceived disabled as a result of suffering from alcoholism, and the evidence in that case was sufficient to satisfy the disability element of the plaintiff’s claim.

As demonstrated above, many different types of impairments satisfy the disability element of the NYCHRL.  Unfortunately, despite a disabled employee’s ability to perform their essential job functions with reasonable accommodations, employers still continue to violate the NYCHRL and unfairly discriminate based on disability.

If you believe you are a victim of employment discrimination, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.  Don’t let injustice go unchecked.


Can Undocumented Workers Pursue Claims for Future and Lost Wages

Undocumented workers and their families  often refrain from coming forward with claims of personal injury and/or wrongful death for fear of deportation and/or incurring criminal penalties.  The section below summarizes recent case law from New York’s highest court holding that undocumented immigrant workers have the right to pursue claims for future and lost wages against negligent employers.

The adjudication of the rights and privileges accorded to undocumented workers remains a very contentious issue in New York and the rest of the country. Against this backdrop, the New York Court of Appeals has ruled on the issue of whether undocumented immigrant workers may pursue claims for lost wages due to personal injury in light of the United States Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002) holding that the Immigration Reform and Control Act of 1986 (“IRCA”) (8 U.S.C. §1324a et seq.) precluded the National Labor Relations Board from awarding back pay to an undocumented worker as relief for the termination of his employment in violation of the National Labor Relations Act.

On February 21, 2006, in companion cases, (Balbuena v. IDR Realty L.L.C. and Majlinger v. Cassino Contracting Corp), the Court of Appeals held that illegal immigrants could pursue claims for lost wages. The Court distinguished the factual situations involved in Majlinger and Balbuena from Hoffman. In Hoffman, the undocumented  worker committed a criminal act by supplying fraudulent papers to his employer. There were no such allegations in Majlinger and Balbuena. Additionally, mitigation of damages by further illegally obtained employment was not an issue in Majlinger and Balbuena because unlike the plaintiff in Hoffman, Majlinger and Balbuena alleged serious permanent injuries that impede their ability to be employed.

Although the Court recognized that an undocumented workers’ presence in the United States is impermissible under federal immigration law, it held that this violation was insufficient to deny relief to which undocumented workers were otherwise entitled. Recoveries have been denied to parties due to illegal activity; however, unlike the construction work at issue here, these situations involve cases in which the work performed itself was illegal. Neither the IRCA nor any other law makes it unlawful to be an undocumented worker, except when the immigrant obtained employment through fraudulent documentation.

Finally, the Court noted that a jury could consider a plaintiff’s immigration status as one factor in its determination of damages. The undocumented worker could produce evidence that he was in the process of obtaining the necessary documents to work in this country legally.

As similar cases work their way through state court systems and inevitably the United States Supreme Court, a clearer picture will begin to emerge nationally on the state of the law in this area. This issue is at the forefront of the American political and social landscape, and we are optimistic that  other states’ highest courts follow suit and continue to issue decisions which reaffirm certain inalienable rights of relief for injured workers and their families.