Racial Bias is in the Air

Time to examine the latest race discrimination suit making headlines.  Two dozen black pilots allege in a lawsuit that United Continental Holdings, the parent of United Airlines, passed them over for management promotions because of their race.  The pilots allege a long history of discriminatory behavior on behalf of United across multiple U.S. states.  The suit was ultimately filed in the U.S. District Court for the Northern District of California in San Francisco.  These pilots further claim the carrier punished them by withholding promotions and special assignments because of their participation steaming from a charge with the Equal Employment opportunity commission in 2010.  As always, United vehemently denies all of the allegations made by the pilots.

What are the chances of success for these pilots? What do they have to prove in order to be successful? Let’s take a look at the law (Title VII) and what is required in order to prevail in a race discrimination suit for disparate treatment.

Claims of discrimination under Title VII  are governed by a tripartite burden-shifting test established by McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the pilots first must make a prima facie case for race discrimination. The prima facie elements of a claim for disparate treatment are that: (1) the pilots are a member of a protected class under the statute; (2) the pilots applied and were qualified for a job or promotion for which United was seeking applicants; (3) despite their qualifications, they were rejected; and (4) the positions remained open and United continued to seek applicants, or the positions were given to someone outside the protected class.

Once the aforementioned is established, the burden then shifts to United to articulate a legitimate, non-discriminatory reason for not selecting the pilots for promotion.  If United satisfies this burden, the pilots must prove that the alleged legitimate reasons offered by United were not its true reasons, but were a pretext for discrimination.  To sum this all up, the ultimate burden lies with the pilots to prove that they were passed over for promotion because of their race.

As you can see, the pilots have a pretty heavy burden facing them.  Even if they are able to demonstrate all of the above elements, including providing statistical evidence that United tended to hire more whites over minorities for managerial positions, all United is required to show under the law is a “legitimate reason” for this trend.  Often in cases where denial of promotion is the primary cause of action, an employer may provide a variety of of reasons for promoting one candidate over another, such as, familiarity with a unit, years of experience in a particular field, or educational background.  Once United is able to establish that reason, the pilots are required to show that they were clearly better qualified than the employee selected for the promotion at issue.  However, the bar is set very high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person, in the exercise of unbiased judgment, could have chosen the candidate selected over the pilots for the job in question.

So let’s see how this all plays out.  Despite the burden being extremely high in race discrimination actions, it is still very possible that these pilots have a legitimate chance of prevailing if they can show they were clearly the better candidates for the managerial positions.

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 employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

Employment Discrimination and Adverse Employment Action Qualification

My supervisor told me my performance was terrible the last few weeks and is threatening to put me on probation, and I’m certain he feels that way because I’m Jewish, and he overtly displays his dislike for Jewish people. This feels like an adverse employment action, but is it?

Title VII, the New York Executive Law and the New York City Human Rights Law makes an employer liable for discriminating against its employees based on agegender, national origin, race, religion, or for retaliating against an employee for having challenged such discrimination. Courts recognize that most discrimination and retaliation is not carried out so openly as to provide direct proof of it.  Accordingly, a wronged party may use circumstantial evidence to assert a prima facie case of discrimination (or retaliation) by alleging: 1) [she] belonged to a protected class; 2)[she] was qualified for the position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. But what really is an adverse employment action?  Sounds like so many different events can fall under such a category, including the one above.

Courts have traditionally defined an adverse employment action as a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

So, when assessing whether an action taken by your employer is “adverse” under the law, you should make sure the action is substantial in nature.  Even though an action may feel substantial, does not necessarily mean that it qualifies the same under the law.  It is always best to consult with an employment discrimination attorney to better determine whether any action taken against you is materially adverse.

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 employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

Discrimination During Interview, No Way

New York employment discrimination runs rampant, even if the actions of the violators may not be overt or obvious.  And employers should certainly know it is illegal to discriminate against employees or prospective employees based on their age, gender, national origin, race, religion, sexual orientation, a pregnancy or a disability or perceived disability. Often, employees who are forced to endure employment discrimination suffer anxiety, humiliation, fear, anger or financial problems due to the unjust acts of their superiors, or even their coworkers.  Fortunately, there are laws which protect victims of employment discrimination from injustice.

You have certain rights as a potential employee afforded by Federal, New York State, and New York City law.  The protections of Title VII of the Civil Rights Act of 1964, New York Executive Law, and New York City Human Rights Law even apply to the interview process.  Know before you go. There are certain questions regarding your identity which are off limits during the interview. The interviewer is barred from asking you about your birthplace, nationality, religion, maiden name, marital status, which church you attend, whether you have (or plan to have) a family, whether you need time off for a religious holiday, whether you are pregnant, whether you are the head of a household, or whether you have physical disabilities. It certainly makes sense why these areas are forbidden territory during an interview. A prospective employee should be measured on the quality of their education, work history and character, not unessential characteristics which have no bearing on their potential for workplace success.

By educating yourself concerning the type of questions an employer may not ask, you can safeguard yourself against improper questioning, voice your concerns, and determine whether you would like to work for a company.  And if you truly believe that an employer has overtly discriminated against you in the interview process, there are several legal avenues you may choose to entertain, and the attorneys at the Law Offices of Maya Risman, P.C. can help you choose the best one to follow.

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.

Can my employer really deduct that from my wages?

The answer is probably not. New York employers should be very wary of the type of wages they withhold from employees, since certain deductions are in violation of § 193 of the New York Labor Law. § 193 of the New York Labor Law prohibits all deductions other than those expressly identified therein.  If an employer chooses to make prohibited deductions, the penalty is severe.  The violating employer is required to  pay compensatory damages equal to the illicit deduction, 25 percent liquidated damages if the violation was willful, in addition to attorney’s fees.  Additionally, § 198-a of the New York Labor Law  provides for criminal penalties for violation of article 6, which includes § 193. In order to ensure your rights are not being violated, it is imperative you carefully examine your pay-stubs to see if any deductions were made in violation of the law.

§ 193 of the New York Labor Law provides that:

1. No employer shall make any deduction from the wages of an employee, except deductions which:

a.  Are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or

b. Are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer’s premises. Such authorized deductions shall be limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.

It must be noted that § 193 only applies to “wages.” § 190(1)  of the New York Labor Law defines “wages” as:

The earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission or other basis. The term “wages” also includes benefits or wage supplements as defined in section one hundred ninety-eight-c of this article, except for the purposes of sections one hundred ninety-one and one hundred ninety-two of this article.

Wages do not apply to discretionary additional remuneration, which is not considered “wages” under the statute.  This would include compensation which is contingent and discretionary, such as bonuses paid out at the end of the year based on performance.

Additionally, in many cases, if one employee is being deprived of their fair share of wages, other equally situated employees are being deprived as well.  This is when a class-action suit against the violating employer is employed.  Employees should remain vigilant, and unify if necessary to combat illicit employment practices in connection with wage deductions.

If you believe you have been a victim of  illegal wage deductions, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.



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.

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.