New York Employment Attorney Blog

A heartbreaking story in the Palm Beach Post told of Kara Jorud, a 47-year-old manager at a Michael's Crafts Store, who was harassed at work and ultimately fired, because when she was recovering from a double mastectomy and sick from chemotherapy, she was unable to work a schedule.

A jury found that she had been discriminated against and awarded her $8.1 million.

A week after undergoing a double mastectomy, Jorud's manager started calling her daily to ask when she was going to return to work. When she did return, he harassed her about her need for time off. She complained to management which did not respond. Out of fear of losing her job, Jorud even had family members come into the store to help her move merchandise, and was subsequently fired for having unauthorized people in the store.

Discrimination against persons with cancer is illegal; most people don't know this. In fact, the NYC Bar Association has a Cancer Advocacy Project of which I am a member, and one of its functions is to assist cancer victims with health insurance claim denials and the other is to aid cancer victims who have suffered discrimination.

The EEOC also has a webpage that discusses the legal protections that persons with cancer have against employment discrimination.

No, the headline is not a joke, it's real. The Eleventh Circuit said that referring to a black man as "boy" is not discrimination.

Twice a jury ruled in favor of plaintiff John Hithon on his race discrimination claims against Tyson Foods. Specifically, he claimed he was denied a job promotion based on race. The District Court, however, said that the use of the term "boy" by a white manager in referring to the plaintiff was not sufficient evidence to support the jury verdict. The Eleventh Circuit agreed. [You can read the full decision here].

The ruling was 2-1 in favor of Tyson Foods. One of the two judges in the majority was William Pryor who was appointed by George W. Bush after strong democratic opposition. In fact, the New York Times wrote about how Judge Pryor wanted to eliminate an important provision in the Voting Rights Act and advocated making gay sex illegal. African-American groups had also protested his appointment based on controversial rulings he had made on the subject of race.

So who becomes a judge and the process of confirmation is quite important in our democracy. In the future in the Eleventh Circuit, black plaintiffs who bring race discrimination cases because they have been called "boy" and been denied a promotion or suffered some other adverse employment action will likely not get very far.

According to plaintiff's counsel:

"The concern is that any time you present that type of evidence, it is the jury who is listening to how those words are being said. They're listening to the tone that was used in saying those words. They're listening to the inflection. They are able to judge who the speaker was and what effect those words had on the person that it was being said to, and the appellate court is missing all of that. They are reading a cold, written record."

The decision is highly disappointing on two fronts. The first is that the court could so easily discard the use of the word "boy" in referring to a black person as a mere stray remark without considering that it could have any indicia of racial animus. The second is that two juries ruled in plaintiff's favor with the first awarding $1.5 million in punitive damages and the second awarding $1 million in punitive damages, yet the court nevertheless overruled both juries' results to find in favor of the defendant.

An ongoing problem in today's legal system is that legislatures and judges frequently take decision-making out of the hands of juries: the former does this by not allowing cases to be tried in front of juries in the first place (tort reform laws), and courts dismiss an overly large number of cases on summary judgment. If this shows a contempt for the jury trial as a part of our democracy, then the Eleventh Circuit was even more explicit in its contempt by actually reversing the findings of two different juries who heard the same evidence.

The Second Circuit Court of Appeals has allowed a hostile work environment case against Verizon to proceed to trial, after it was dismissed by the lower court.

The decision, Pucino v. Verizon Communications, Inc., is significant because it was issued from a federal appeals court for New York, reviewed the principles underlying a hostile work environment claim in New York, and ultimately upheld a female employee's right to sue.

First, when looking at hostile environment cases, it is important to take a long view and understand that two essential elements must be shown: that there was discriminatory treatment based on sex, and the treatment was "severe or pervasive" enough to create a hostile environment. This may sound overly legalistic to the unschooled, and not really hit home, but when explained it becomes much more clear.

First, the abusive conduct that occurs in the workplace must be sex-based. It is not enough for the defendant to just act mean or viciously towards the plaintiff; the conduct has to be driven because of the plaintiff's sex, not because the people involved simply do not like one another. Second, the conduct has to, viewed as a whole, be so bad that it alters the work environment to the point where it becomes hostile or abusive. To use an extreme example, ripping off a woman's clothing will qualify, but just a single isolated statement such as "you look pretty today" will not.

Continue reading "NY Hostile Work Environment Case Against Verizon Reinstated by Second Circuit " »

The EEOC has filed an employment discrimination lawsuit in New Jersey federal district court against Princeton HealthCare alleging that it has failed to provide reasonable accommodations to its disabled employees who needed medical leave, then subsequently fired those employees.

Among other things, the company failed to give time beyond that allowed by the Family Medical Leave Act (FMLA) to disabled employees, thus denying them a reasonable accommodation under the Americans With Disabilities Act (ADA). More than a dozen employees with disabilities who requested leaves of absence as a reasonable accommodation were denied them and fired, the EEOC alleged.

The problem with the company, said the EEOC, is that it applied blanket leave policies without making exceptions, or reasonable accommodations, for employees with disabilities.

Indeed, Princeton HealthCare should have had its own attorney who it could have consulted with prior to making these employment decisions. I am sure it did, given the size of the company, but odds are it did not consult with the attorney. That was its first mistake. Further, an employer should not apply blanket employment policies to individuals with disabilities. The fact that an individual has a disability does not mean he or she is entitled to limitless accommodations, but he or she is entitled a reasonable accommodation.

Brian Reid, a former Google executive, claims he was fired at age 54 because of his age. Remarks were made to him during his employment that he was: "slow," "fuzzy," "did not display a sense of urgency," "lacked energy," and that his ideas were "obsolete."

Google defended against his lawsuit by saying that these were just "stray remarks." Many courts have dismissed discrimination lawsuits at summary judgment on the grounds that complained-of conduct consisted of "stray remarks" that do not have compelling evidentiary value.

The California Supreme Court, however, expanded this legal concept, holding, "Strict application of the stray remarks doctrine, as urged by Google, would result in a court's categorical exclusion of evidence even if the evidence was relevant." In addition, "An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination."

This decision has been hailed as a major victory for employees. It also reflects the reality that discriminatory remarks should be construed in their totality and not casually dismissed as being stray remarks.

It has been reported that sexual harassment cases filed by men are on the upswing. According to EEOC, the percentage of sexual harassment claims filed by men doubled from 8% to 16% of all claims, from 1990 to 2009.

The article linked above goes on to discuss, more broadly, how sex discrimination cases filed by men are becoming more common. One such case was filed in New York by an employee at the Jimmy Fallon late-night show, who alleges he was replaced by a woman because Fallon prefers to be directed by females.

The article also examines the different ways in which men can be the victims of sex discrimination in the workplace, including not only instances of unwanted sexual comments and touching--which it says have grown more commonplace in light of the advancement of women in the workplace--but also how employers may not, for instance, provide men with the same caregiver leave they would give to women to tend to sick relatives or perform childcare.

From a strictly legal perspective, it is no surprise that men can file lawsuits for sex discrimination. If they couldn't, the sex discrimination laws would be, well, discriminatory. And hey, we can all remember the film Disclosure where Demi Moore gave Michael Douglas the full-court press.

What is interesting, albeit unfortunate, about the growth in sex discrimination cases filed by men is that there still exists overt discrimination based on sex that clings to traditional gender stereotypes. While most bosses know enough not to declare that they do not want to hire a person based on their race, there are still some who feel it is okay to hire and fire based on sex. And hence sex discrimination claims continue to be filed...

A sexual harassment lawsuit filed by two male employees at Home Depot that has been wending its way through the federal appeals court has settled for an undisclosed amount. What is notable about the case is that oral argument was heard by a full panel of the Eleventh Circuit, which is not common, since most cases are heard by only a three-judge panel.

The case was filed by the employees after a human resources manager made sexually-explicit comments to the two male employees and even engaged in unwanted touching from massaging their necks and shoulders, playing with their hair, and even rubbing up against one of them. After complaining about the sexually-charged conduct, the two employees were filed. Among the causes of action they alleged against Home Depot were retaliation claims.

In another sexual harassment case heard in January, the Eleventh Circuit had said that not all profane or sexual language could support a sexual harassment suit, but certain gender-specific words such as "bitch" or "whore" could even if not directed at the plaintiff. Apparently, the court was struggling with how to apply that decision to the case at bar, since the HR manager made some comments that, depending on the context in which they were viewed, could be construed as harmless, or, in legal jargon, innocent behavior not offensive to a reasonable person. Examples are commenting on the "baby face" of one of the employees and saying one was "cute" and had beautiful hair. A dissenting judge said that even these comments constituted the type of conduct that reasonable persons had come to expect they will be protected from in the workplace.

I think the dissenting judge is right. While certain seemingly harmless comments can be taken out of context,, if the person who says that also engages in overtly sexual conduct or commentary, all of the person's actions must be viewed in a continuum. In other words, they are part of a big picture.

An article in Courthouse News Service reports that two Lowe's employees in Indianapolis have filed an religious discrimination lawsuit against the company, claiming they were fired after refusing the Christian proselytization of their manager, a member of Calvary Baptist Church, which has been described as the most rapidly growing evangelical church in the nation.

Say it ain't so ... that was my first response after hearing that a California jury hit Lucasfilm with a $113,800 verdict in a pregnancy discrimination suit brought by a woman whose job offer was withdrawn after she announced she was having a baby.

As a huge Star Wars fan and plaintiff's lawyer, this came as a tremendous letdown. All along it had seemed obvious to me that Lucasfilm supported equal rights. Wasn't that the point of the bar scene at Mos Eisley when the bartender announced that droids were not allowed to be served--to show that it was a rough and lawless place?

If I was the Lucasfilm attorney, I would've tried to introduce Star Wars III - Revenge of the Sith as evidence and played it to the jury, so that it could see how in it Padme is pregnant yet keeps her position in the Senate. Hey, if Padme could be with child and serve as a senator during the stressful, dangerous time of the Clone Wars, not to mention while having problems at home while her husband was turning to the dark side, wouldn't it seem that Lucasfilm would be okay with having a pregnant woman serve as a manager at Lucas' San Anselmo estate?

But, alas, according to the jury, Lucasfilm violated the employment discrimination laws. Hopefully, the plaintiff has received fair compensation and can get on with her life, and Lucasfilm will revamp its practices and procedures so that this unfortunate incident will seem like a distant memory. In fact, in years to come perhaps it will seem to have occurred, "A long time ago, in a galaxy far, far away."

A federal district judge in Kansas has dismissed an age discrimination lawsuit filed against Boeing filed after the sale of its commercial aircraft operations in 2005. The judge found that there was not a pattern of age discrimination during the divestitute of the company.

More to the point, the judge noted that there was not a culture or corporate policy of age discrimination.

Ninety employees had filed suit under the Age Discrimination in Employment Act and they were granted class action status. The allegation was that Spirit Aerosystems did not hire older employers so as to save pension costs. 700 ex-workers eventually joined the suit.

The judge reached his decision despite evidence that discrimination occurred. One such piece of evidence was a statement from the Spirit CEO that: ''Boeing's work force was getting older and that the managers needed to find ways to do something about it.''

Federal courts frequently dismiss employment discrimination lawsuits. Plaintiffs' attorneys contend this occurs too often and that cases should be submitted to a jury to determine if discrimination occurred.

Mandatory arbitration clauses, whether in employment contracts or those for credit cards, auto sales, and countless other consumer transactions, are inherently unfair and chip away at the foundation of our justice system. Essentially, they involve people signing away their rights to go to court if they have been wrong. Most people either don't realize, or don't have a meaningful choice, about waiving their rights when they sign these contracts.

At the Kagen confirmation hearings, Sen. Al Franken pushed the prospective justice on this topic -- one that he has been a pro-consumer advocate during his senate tenure. He was responsible for trying to prevent these clauses in response to the rape of a Halliburton employee whose case the company tried to keep out of court.

Making mandatory arbitration clauses illegal is highly unlikely given the makeup of the current Supreme Court, even if Kagen joins it, since there are five conservative members. Even with a shift in the court's makeup, I still wouldn't hold my breath that it'll happen. Most judges are simply too respectful towards business interests to take such a dramatic step. And that's unfortunate.

It's been all over the news -- the employment discrimination action filed by Deborah Lorenzana, the Citigroup employee in New York with a Playboy-esque figure who alleges she suffered adverse employment actions, and eventually was fired, for looking too hot and sexy on the job.

Hey, I've blogged about it in the past.

Now the Association Press reports that Lorenzana had multiple plastic surgeries, including breast augmentation and liposuction, and was on a reality TV show highlighting the same.

Does this make her case any different? And why do I post about this? After all, this is not a significant employment discrimination case in that it is heading to mandatory arbitration and so will never result in a written decision, or higher court review, that will create unique precedent in employment discrimination law. Also, the fact that it will be arbitrated means there is a much reduced chance of her receiving a large verdict.

Yet, no doubt, this is a unique case and so it draws my attention for this reason. Many other sex discrimination cases allege that women did not look sexy enough and were terminated--think of actions filed by stewardesss and the recent Hooters girl cases who were said to be overweight. It merits attention for that reason alone, and hence why it has been sensationalized by the media. Also, there is a celebrity spin to it in that it seems somewhat evident that Lorenzana is an attention-seeker given her past reality TV show experience and the sultry photos she shot to show what she looked like on an average day at the bank.

In addition, the fact that Lorenzana had plastic surgery adds a whole new element to the case. Think of it this way: putting aside the plastic surgery for the moment, the case raises questions about the perception of a woman's sexuality and how it is displayed in the workplace. This touches on gender equality -- i.e. would a man ever be treated this way -- as well as the objectification of women for their sexuality -- Lorenzana alleges that other less, ahem, curvy women were allowed to dress the same way she did.

Now add in the plastic surgery part of it. Since Lorenzana amplified her sexuality, if you will, by going under the knife (after all, she herself said she wanted to look like a Playboy model) does that place responsibility on her? Was she making herself look sexualized in the workplace to a point that made her superiors wince and ask her to put the kabosh on it? There are standards of decency in a workplace that are in the legitimate interest of an employer.

Is this a case of her not just being a woman who is treated adversely, but rather one who is inappropriately advertising her sexuality? Or, instead, is it still just plain old sex discrimination? Lorenzana is a curvy, attractive woman who is treated differently based on her sex? In other words, just because she looks a certain way, then has plastic surgery, does not justify her being subject to sexual comments or adverse treatment.

In sum, as the article says, is she advancing women's rights or setting them back?

These are all interesting questions. We tend as a society to look at issues of sex and racial equality through a narrow lens. But how do we deal with the nuances when they arise? And is the law itself well-equipped to do that?

Maybe it's the heat, or maybe since it's Father's Day I'm in the mood to look back and reminisce, but whatever the case, now seems as good of a time as any to go back to the basics of New York noncompete agreement law, the 1999 Court of Appeals decision of BDO Seidman v. Hirshberg, 93 N.Y.2d 382.

Here are some of the salient points from the decision, which is routinely referred to as an authority by New York courts when deciding disputes concerning noncompete agreements--also known as covenants not to compete and restrictive covenants.

Hey, a refresher is always a good thing.

The court set forth the basic black-letter law that noncompete agreements must be viewed with a reasonableness standard that applies a three-prong test. More to the point, "[a] restraint is reasonable only if it (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public."

As is evident, this is a vague standard that gives considerable discretion to the court. But the court didn't stop there, continuing on to set forth in more detail what reasonableness is in this context. A covenant will only be enforced if "it is reasonable in time and area, necessary to protect the employer's legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee."

Still kind of a vague standard, but at least it has a little more in the way of definition to it. It does, after all, address the issues of geography and time. But wait, there's more...

The first prong above that mentions the employer's legitimate interest. What does that mean, exactly? The court defines it as being limited to protection against misappropriation of trade secrets or confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary. Also, more leeway will be given during reviews of covenants between professionals, whose services are more likely considered to be unique.

The court went on to say that if the employee does not use unfair means to compete against the former employer, the employer does not have a legitimate interest in curtailing the activity of the employee. However, "[p]rotection of customer relationships the employee acquired in the course of employment may indeed be a legitimate interest." Thus, a noncompete agreement may restrict an employee from taking clients he formed relationships with through his former employer, but not may not keep him from competing against the employer for other clients.To be clear, though, a noncompete agreement may not extend to clients whom the employee was responsible all on his own for bringing to the firm, independent of company contacts and resources. Thus, what is a legitimate interest has been defined.

The decision also affirmed that, unless there was real overreaching or coercion by the employer, courts may sever and partially enforce noncompete agreements that are overly broad.

So there you have it .... my case brief for the BDO Seidman case. It's not the most clearly written decision you'll ever read, but that's beside the point, since no matter what the prose style and structure of the opinion, it is one that continually is referred to in disputes concering noncompete agreements and so must be understood by attorneys practicing in this area.

Noncompete agreements, if not drafted with absolute precision, and if scrutinized by a savvy employee-side attorney like yours truly, can end up being worth not much more than the paper they're written on.

A recent example I came across is a request for an injunction filed in a Texas court by an employer against a former employee who it claimed violated a non-solicitation clause in an agreement between them by going after its customers. The agreement restricted the employee from directly or indirectly soliciting any existing customers for a period of two years after his employment ended.

The employee argued, rightly and cleverly so, that the clause was too broad because it prevented him from contacting any customers the employer had, even if he never previously had any dealings with them. According to Texas law, a covenant not to compete is overly broad if it prevents the employee from contacting customers with whom the employee never had contact.

But an appeals court held that the prohibition is not necessarily unreasonable because it was undetermined whether or not the employee had a relationship with all of the existing customers, and so it sent the case back to the lower court to determine the circumstances surrounding the signing of the agreement, the customers covered by it, and which customers the employee had dealings with. In other words, if the employee had prior contact with all of the customers, the clause would be valid; if he didn't have contact with all of them, it wouldn't be enforceable.

Okay, so this particular example isn't a "case in point," per se, because it's presently not established if the noncompete agreement in the case will be declared invalid. But the message is clear: if not drafted with precision, noncompete agreements may end up being pretty much worthless. I don't say this to warn employers, mind you, but instead just to tell it like it is in the world of noncompete litigation.

A New York labor law to protect domestic workers, who are often made to work long hours for inadequate pay, has been the focus of recent news reports and hopefully will eventually become law. Today, the New York Times carried a story that takes this background of domestic workers confronted with unreasonable work demands, but presents it with a different twist -- adding the element of HIV discrimination.

The story starts off a little odd: Agnes Cybulska sees an advertisement for an "experienced executive Polish housekeeper" -- showing a preference based on national origin which is illegal. Who published this advertisement, I wonder? And why must the person hired by Polish? In any case, she needed a job, went to an interview, and there discovered the pay was less than advertised and the job involved 9-hour shifts with no overtime, no health benefits, paid vacation or sick days.

Okay, so the employer -- a heiress to the Annenberg family fortune -- is not exactly, shall we say, magnanimous. But Cybulska needed a job, so she went back for a second interview, during which the heiress demanded that Cybulska submit to and pass an HIV test in order to be given the job.

A lawsuit was subsequently filed by Cybulska in the Supreme Court, New York County against the heiress and Domestic Job Picks, the employment agency that was used to recruit Cybulska, alleging that the test violated the New York City Human Rights Law.

We usually don't think of discrimination in the context of domestic workers, probably because most are members of a protected categories in that they are minorities. We think of them instead as being exploited. But the fact that these workers are often subjected to unreasonable demands that cross the boundaries of what should be allowed in an employment context opens them up to discrimination. No doubt, for instance, pregnant domestic workers or those with children also face discrimination from employers who want workers without attachments.

Simply put, in the area of domestic work, some employers think they can ask or do anything. Importantly, under the law, they cannot.