Articles Posted in Employment Retaliation

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Refusing to engage in or directly calling out an employer on behavior that is discriminatory can be a risky move. A worker who does, likely expects to be retaliated against, with job reassignments, demotions, pay cuts, heightened supervision, an increase in write-ups, unjustified poor performance reviews or just general negativity from supervisors.
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Because lawmakers recognized the risk assumed by those who oppose workplace discrimination, they took steps to protect them. In fact, the Americans with Disabilities Act extends specifically to these individuals, as does the New York State Human Rights Law. Also, Title VII of the Civil Rights Act contains an “opposition clause” that prohibits companies from lashing out against a worker who stands up against discrimination.

One recent example was seen in litigation filed by several food service workers at an upscale eatery in New York City, where several employees say they were subject to blatant harassment and discrimination on the basis of their disabilities and race. When one manager filed a formal complaint about the ill treatment of his co-workers, he was reportedly abruptly transferred to a different assignment on a less desirable shift. If the allegations proves true, it would be a classic example of retaliation for opposition to a discriminatory workplace.
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It can be difficult for a worker to stand up against discrimination by an employer, especially when there is a strong likelihood the company will respond with retaliation.
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When an employer engages discrimination, retaliation is often used to damage an accuser’s credibility, as well as serve as a warning to anyone else who might come forward.

The Equal Employment Opportunity Commission defines retaliation as occurring when an employer or labor organization takes some kind of adverse action against a covered individual because he or she engaged in protected activity. Proving a claim of employment retaliation in New York City means all three of these elements must be present.
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Employment discrimination takes on many forms, be it sex or sexual orientation, race, ethnic origin or religious affiliation.
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Our employment attorneys recognize that sometimes these actions can be attributed to an employer’s ignorance of the law. Other times, it is a flagrant disregard for it.

Interestingly, the kind of discrimination being alleged by a former New York City car dealership finance employee would likely not have even been considered a form of discrimination a few decades ago. But because of our expanded understanding and exponential medical advancements in that time frame, there is no reason why an employer should view the following as an acceptable cause of termination: HIV-positive status.

According to media reports, the 43-year-old former employee filed suit with the New York Supreme Court against a dealership in Queens, seeking $4 million in damages.

Specifically, the former worker is alleging discrimination on the basis of sexual orientation and retaliation by the employer and individual liability for discrimination on the basis of his sexual orientation by three former co-workers.

The plaintiff said that he was hired by the dealership last November, at which time he had about two decades of experience in the automotive industry. At his new position, he earned roughly $10,000 monthly.

Five years ago, the plaintiff said he learned that he was HIV-positive. In the interim, he’d had two other employers, both of which knew of his condition and took no issue with it.

At this office, however, he says it was different.

He said he did not make a secret of the fact that he was homosexual, but neither did he make it a topic up for routine discussion.

Despite having this knowledge, several co-workers – including the general manager of the dealership – allegedly made extremely offensive homophobic remarks, spitting out slurs and discriminatory remarks.

The defendant said he tried to ignore it, but it deeply bothered him.

Then sometime around mid-March, the plaintiff was conversing with the general sales manager when the latter indicated that his brother was HIV-positive, and that due to this, he was no longer welcome at family functions or around his children. The defendant said at that point, he revealed his own HIV-positive status, attempted to dispel the myth that HIV-positive people are dangerous.

His revelation was met with silence and a blank look.

Two days later, the plaintiff was called in for a meeting with his superiors – including the general sales manager. At that time, it was alleged that there was a “problem” with the plaintiff’s work – though none had been hinted to at any point prior. He was then promptly fired.

With no health insurance and only a month’s worth of anti-viral medication left, this discrimination poses a threat to his health as well as his finances.

The U.S. Equal Employment Opportunity Commission reports that there were 200 allegations of discrimination on the basis of HIV last year. That accounted for .08 percent of all disability claims filed in 2012 under the Americans with Disability Act. Compare that to 1997, when there were 323 cases, or nearly 2 percent of all cases that were tracked by the EEOC.

Among some of the other medical conditions for which the EEOC received disability complaints about last year:

  • Anxiety disorders (6.1 percent);
  • Asthma (1.5 percent);
  • Cancer (3.7 percent);
  • Depression (6.7 percent);
  • Diabetes (4.8 percent);
  • Hearing impairment (3 percent);
  • Back injuries (8.9 percent);

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When video publicly surfaced showing Rutgers University Coach Mike Rice engaging in abusive behavior toward his players, administrators took swift action to have him fired.
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But as our New York employment lawyers know, the public release of those recordings wasn’t the first that administrators had been made aware of them.

In fact, the school knew about problems with the coach since at least last year. Former nine-year National Basketball Association player Eric Murdock, who worked as the university’s director of basketball player development from 2010 to 2012, said he had informed the school’s athletic director, Tim Pernetti, about the alleged abuse on numerous occasions.

The allegations included assertions that Rice was shoving players, grabbing them, hurling basketballs at them and launching homophobic slurs at them.

Yet, Murdock says, nothing was done.

Then, Murdock handed over a video recording proving the alleged abuse to Pernetti.

Still, no action was taken against Rice.

Instead, Murdock was fired.

In the Murdock v. Rutgers et. al. civil lawsuit filed recently, Murdock noted that bullying had been a major problem on the Rutgers campus during his tenure there, most notably with the high profile incident of an incoming freshman who took his life and the life. Ultimately, a roommate was criminally prosecuted for bullying the victim on the basis of his homosexuality.

In the wake of this tragedy, the state had adopted anti-bullying laws and the school, too, had instituted a new policy that was to protect students against harassment, bullying, defamation and intimidation.

Yet somehow, the basketball coach seemed immune to the requirement to abide by these rules. Not only did Rice’s actions violate school policy, Murdock says, they broke the law. Murdock said that in all the years of his career, he had never before experienced or witnessed the kind of abuse that Rice heaped on his players.

The school, rather than punish Rice, punished Murdock – which is a form of employment retaliation.

Murdock says he was abruptly fired in the summer of 2012, after he had put university officials on notice about Rice’s actions. Murdock says the firing was initiated under the false pretense that his contract wasn’t being renewed for the following school year.

Murdock says a meeting was arranged in late November for university officials to further discuss Murdock’s allegations regarding Rice. At that time, the university was provided with the video evidence of the abusive conduct. However, Murdock said the school officials revealed at that meeting that they had known about Rice’s conduct all along, as every practice was video-recorded.

Yet, confronted with the evidence form Murdock, the school chose to suspend Rice and fine him $50,000. No investigation was carried out.

It wasn’t until that recording was made public that the university actually took action.

Now, Murdock is seeking whistleblower status. He claims that his reports of Rice’s wrongdoing were protected speech, and that the administration’s response to fire him amounts to illegal retaliation.

Whistleblower status is a very specific type of protection from retaliation that one can seek for publicly revealing misconduct, dishonesty or illegal activities in government or within a private company or organization.

If you are concerned that you may be retaliated against for speaking out for the right thing, contact our law offices today.
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Major banks have been accused of a number of misdeeds in recent years relating to the economic collapse. But now the most recent allegation involves potential employment discrimination in New York. businessmansilouette.jpg

Our Great Neck employment law attorneys understand that two former employees have filed separate lawsuits accusing mega-banks Bank of America and Cantor Fitzgerald of company-wide racism.

Unfortunately, cases such as this can be difficult to prove. It’s like being pulled over by a police officer. He or she may have initiated the stop based on your race, but if you were speeding, had a headlight that was out or tinted windows, it can be difficult to prove that the officer was wrong to stop you.

It’s the same kind of uphill battle for employees who allege discrimination – an experienced law firm can help. Evidence might include an executive’s statement made in the presence of others or some electronic communication such as an e-mail or something else to indicate that action taken against you (or favorable action not taken toward you) was on the basis of your race or some other protected status, such as your religion, gender or sexual orientation. A pattern of behavior on the part of the company can also go toward proof of employment bias.

Ideally, your complaint would be combined with a solid work history. In other words, the employer had no reason to take the action against you that it did except for a personally-held or company-wide bias.

That may well have been the case here, though it remains to be seen how the courts will decide.

In the first of these two cases, James v. Cantor Fitzgerald LP, filed in the US. District Court in the Southern District of New York, the plaintiff is a black man who worked at Cantor Fitzgerald for four years, ending in the summer of 2008. During that time, he says he endured racial harassment from co-workers that was condoned by his managers. This harassment included certain colleagues making ape-like noises while around him and in one case, a co-worker saying he would be enjoying a weekend absent any African Americans, only he used a slur instead.

The plaintiff says that he notified the bank management about it, but rather than address it, he says, he was denied promotions. In one case, he says, a bank manager instructed him to transfer locations so he could “be around his own people.” The employee says when he pressed the supervisor for the meaning of that statement, he said the supervisor responded by telling him he needed to be around other African Americans.

He says he was fired for complaining about the harassment. He is asking for his job back, as well as back pay, bonuses and punitive damages.

In the second case, a black male was a manager at a Bank of America branch from early in 2007 until the summer of 2008. During that time, he stated that the branch policy was that white customers should not be served by African American employees.

What that meant for the manager was that he was routinely assigned to branches that were in lower-income communities. That in turn led to affecting certain commission and compensation. The manager said when he complained about this, he was fired.

He is seeking $10 million in damages.
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On the surface, it may appear that the “no fatties” New York City employment lawsuit filed against a local sports bar was about weight. tailormeasure.jpg

But New York City discrimination lawyers recognize that it’s actually about sexual discrimination and sexual harassment and retaliation in the workplace.

According to various media reports, two women who worked as waitresses and bartenders for a New York City restaurant and bar claim that the company had a policy of “no fatties.” The female employees were reported singled out and forced to step on a scale to be weighed. One of the women who refused was reportedly forcibly picked up by a male staffer and placed on the scale against her will.

Another staffer says that the night manager reportedly groped her breasts and buttocks and made vulgar and inappropriate sexual comments to her and about her weight.

This had gone on from between 2004 to 2006. Then in the summer of 2006, members of the management team reportedly charted the female staffers’ weight and posted it on the internet.

When the women complained, they said, they were fired.

Of course, as New York City employment lawyers recognize, you can’t legally be fired for reporting or complaining about discriminatory behavior – which it certainly appears this was. If their account is true, this is an issue of clear-cut employment retaliation.

The issue is not so much about the issue of weight or size. The women were not reportedly fired for being overweight. While that is certainly illegal, it can be more subjective and difficult to prove. (If you find yourself in a similar situation, an experienced attorney can help you explore all your options.)

However in this case, the women were singled out because they were women. They were subjected to poor treatment and sexual harassment because they were women. And they were fired because they complained about it.

Of course, the company has a very different take on this. According to attorneys for the restaurant and managers, the women were fired for unrelated reasons. They say the women frequently showed up late to work and ate on the job.

Those things may be true, but the timing appears awfully suspicious.

Sexual discrimination is one of those things that is severely under-reported, and sometimes the reasoning for that is employees don’t often recognize it outright.

The U.S. Equal Employment Opportunity Commission outlines that sex discrimination essentially involves a person being treated unfavorably because of his or her sex. The law expressly forbids discrimination in terms of pay, job assignments, hiring, firing, promotions, fringe benefits, layoffs, training or any other condition of employment.

And with regard to sexual harassment, it can include unwelcome sexual advances or asking for sexual favors or physical or verbal harassment. What’s more, the harassment doesn’t even have to be particularly sexual. It can simply mean one person making offensive or derogatory remarks about a person’s sex. An example might be making offense comments about women in general.

The law doesn’t cover teasing or isolated incidents or offhand remarks. But there can be a fine line here. It becomes illegal when it gets to a point that the work environment has become hostile or offensive.

The case involving the waitresses appears to meet that criteria. The case will be decided by a jury.
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It’s obvious that banks across America have had problems in recent years with the out-of-control foreclosure process.

But a recent article by iwatchnews.org shows that banks were so overwhelmed by what was going on that they were fraudulently altering documents in foreclosure cases and fired employees who saw it and reported it.
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Retaliation in New York and elsewhere is against the law, plain and simple. A company cannot fire an employee because they are a whistleblower or reported something illegal or wrong was going on in the business. This includes safety violations.

Sadly, this happens, however. Employers know they are doing wrong and when someone confronts them or points out what is happening because they are trying to do the right thing, the company comes down with the hammer.

Countrywide was one of the largest lenders in the country when Bank of America bought it in 2008. Since then, many reports have detailed the problems that Countrywide had with loan servicing, robo-signing and filing fraudulent documents in foreclosure cases.

But this story goes beyond signing fake signatures to documents. According to the news story, in 2007, corporate investigators for Countrywide sifted through paper that was in shred bins in the Boston area.

By finding the documents before they were shredded, investigators were able to find evidence that Countrywide workers were using scissors, tape and Wite-Out to create documents — fake banks statements, inflated property appraisals and appraisals switched on different properties.

This documentation was being used to kick people out of their homes. They were literally cutting and pasting documents together to make this happen.

Eileen Foster, the company’s fraud investigations chief, began looking into the problems and immediately got pushback from the company’s brass. One executive sent an e-mail to dozens of workers in the Boston area, warning them that there was an internal investigation and telling them not to put anything that could hurt them in writing. And she got a call from another chewing her out.

A senior manager who oversaw the branches wasn’t made available for an interview by investigators. Instead, the company’s “Employee Relations Department” did the interview and let managers vet the transcript before handing it over to investigators.

While employees were fired and branches shut down, many of the executives who likely authorized or demanded such actions went unscathed. Others who spoke up about the fraud were laid off. And when Bank of America bought out Countrywide, they fired her for “unprofessional conduct.”

But after the U.S. government intervened recently, she was given her job back and paid $930,000, after it was found that she was fired for retaliation for being a whistleblower. Others who worked with her say there was no way she was unprofessional, but only that the company had had enough of her digging.

Issues like these must be brought to light. A person cannot face this type of retaliation or discrimination in New York and allow companies to get away with it. It’s wrong and it’s unlawful.
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Andy Rooney retired recently at the age of 92 and after more than six decades working for CBS on “60 Minutes.”

It’s really amazing in this day to consider that someone would work until they are 92, but also that they would be able to work for a company for more than 60 years. There simply isn’t that kind of company or employee loyalty anymore in corporate America.
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Not only for younger employees coming into the workforce now, but for older jobless as well. MSNBC reports that claims of unemployed older workers have spiked in recent years, as older Americans feel they aren’t getting a fair shot at available jobs. For those in their 50s or 60s who are out of work, the job hunt can be particularly difficult.

Age discrimination in New York is among the unlawful ways companies and employers show bias against workers. Also banned is discrimination based on race, gender, sexual orientation, national origin, disability and religion, among others.

Age discrimination is on the rise. In 2006, there were 16,000 claims of age discrimination sent to the U.S. Equal Employment Opportunity Commission. In 2010, that number spiked to more than 23,000, a 44 percent hike.

Older employees, in some instances, are seen as good for the company because they bring years of experience, knowledge of the craft and a stability that younger workers often lack. But older workers have been increasingly seen by employers as less than desirable, the article states.

Since the Great Recession, where older workers have been laid off as companies cut corners and try to save money, they have been unable to find work. In a high-profile case, technology firm 3M had to pay out $3 million in a lawsuit after the company laid off workers who were over 45.

In an e-mail, one of the officials stated that the company needed to develop 30-year-olds who have management potential, which followed the layoffs of the older workers.

Age discrimination is common in several areas:
-Lack of promotions -Not given opportunities to receive training -Not hired because officials believe they can’t adapt to changes
Experts believe companies feel it’s OK to lay off older workers because they have a feeling they are more established and therefore have more money stored away than younger workers. With the instability in the economy, that’s far from a given.

Also, research shows that younger workers end up taking more days off from work than older workers and because of pregnancy issues, young women end up costing more to insure. While older workers get injured less often than younger workers, they take longer to recover.

AARP’s August report on employment found that the average time that older workers — 55 and older — spend on unemployment is 52.4 weeks, compared to 37.4 weeks for younger job seekers. The report also found that 54.9 percent of older unemployed were “long-term unemployed” — meaning they have been out of work for 27 weeks or more.

Older workers are getting discouraged because they feel like they don’t have a chance to get work. They feel like they are being shown the door at a higher rate than their younger co-workers and that may be due to age discrimination in New York.
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A federal court has upheld the dismissal of a New York employment lawsuit by an employee who claimed he was forced to retire from Staten Island Rapid Transit as retaliation for complaining about a sexually charged cartoon.

A Great Neck, New York employment attorneyshould always be consulted when an employee is terminated under questionable circumstances. Wrongful termination can occur for any number of reasons, including retaliation for reporting race or age discrimination, sexual harassment or other violations of workplace rights protected under state and federal law.
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The United States Court of Appeals, Second Circuit examined the employee’s claim of retaliation in the workplace after he complained about a sexually-charged cartoon. The burden of proof typically rests with the employee when filing a New York employment retaliation or federal employment retaliation claim.

The plaintiff must show that he engaged in a protected activity, that his employer was aware of the activity, that the employer took adverse action against him, and that a connection exists between the adverse action and the protected activity. In this case, Staten Island Rapid Transit acknowledged the employee’s complaint and admitted that it was a protected activity. But the system denies an adverse employment action.

The court found no proof that adverse working conditions resulted from the employee’s complaint about the offensive cartoons. The plaintiff said he complained in the late 1990s after 20 years of seeing the cartoons posted in the workplace. Posting of the cartoons ceased and it wasn’t until May 2003 that the employee retired.

“There is thus no evidence that Borski’s complaint was met with retaliatory harassment,” the court wrote. “Furthermore, no reasonable jury could conclude that a reasonable person would feel compelled to quit his job over conduct that had ceased years earlier.”

We can make several observations here. First, the employer did itself a favor by responding proactively to the complaint. Ignoring employee complaints that involve sex, age, race or religious discrimination is always a mistake. Second, it is certainly possible that a complaint over long-standing cartoons in the workplace (whether for religious or other reasons) could have led to workplace harassment.

In such cases, it is always best for an employee to consult a New York employment lawyer. Documentation of such harassment would have gone a long way toward assisting the employee in proving his case in this instance.

Lacking such documentation, the court found not reasonable jury would conclude the plaintiff was constructively discharged from his position. Consequently, the court ruling sided with the district court decision to grant summary judgment to SIRT, dismissing the employee’s claims.
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