Articles Posted in Discrimination

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New York is known as the nation’s melting pot, and as a whole, residents pride themselves on the city’s diversity. New York is also recognized as one of the leading cities in protecting job applicants against employment discrimination, based on a wide range of factors. One of the less known groups of people who are protected from New York employment discrimination are those with criminal histories.

The New York State Human Rights Law precludes an employer from basing an employment decision on previous arrests, reversed convictions, sealed convictions, juvenile adjudications, and even prior adult criminal convictions. It is important to note, however, that the level of protection varies depending on the group to which a prospective employee belongs.

Previous Arrests, Reversed Convictions, Sealed Convictions, and Juvenile Adjudications

A prospective employee with a record of any of the above is completely protected from having an employer base a hiring decision on these factors. Additionally, employers are not permitted to ask about previous arrests, reversed convictions, sealed convictions, or juvenile adjudications during the interview or even after a conditional job offer has been made. There are some exceptions; for example, a law enforcement agency can inquire about juvenile adjudications prior to making a hiring decision. However, the agency cannot inquire about sealed convictions.

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Earlier this month, a federal court of appeals issued an opinion in a case involving a plaintiff’s claim under the Equal Pay Act, in which the plaintiff claimed that she was paid significantly less than her male counterpart despite having more responsibility. The case is illustrative for those considering bringing a case alleging New York wage discrimination because it discusses the federal standards governing these claims.

The Facts of the Case

The plaintiff was a superintendent of the Illinois School for the Deaf (ISD) between the years of 2006 and 2010. When she left the position in 2010 to accept a new superintendent position, she was paid approximately $88,000, including a bilingual bonus. The plaintiff’s new position was a newly created superintendent position that placed her above both the ISD as well as the Illinois School for the Visually Impaired (ISVI).

Prior to the merging of the position, the ISVI superintendent, a male, was paid approximately $121,000. When negotiating her salary for the new position, the plaintiff asked for a salary that was greater than the previous salary paid to the superintendent of the ISVI. However, the district refused to pay the plaintiff that much, and the parties negotiated a salary of $106,500.

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Workplace discrimination is illegal in New York, and employees do not need to sit idly by if they witness New York employment discrimination. Indeed, the same laws that prohibit discrimination also prevent retaliatory actions taken against an employee who speaks up in the wake of discriminatory conduct.

While an employer cannot take an adverse employment action against an employee who has engaged in whistleblowing or other protected conduct, an employer is not prevented from firing an employee based on an independent reason. Of course, if there is both a potential permissible as well as an impermissible reason for an adverse employment action, it is up to the employee to establish that the employer’s proffered reason is pretextual.

A recent employment discrimination case in front of a federal court of appeals illustrates this concept.

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Earlier this year, a New York appellate court issued a written opinion in a New York gender discrimination case brought by a woman who claims to have been fired because she made her boss’ wife jealous. The case presented the appellate court with a unique opportunity to discuss whether the plaintiff’s allegations were sufficient to state a cause of action under the New York anti-discrimination statutes. Ultimately, the court concluded that the plaintiff’s case should proceed toward trial or settlement negotiations.

The Facts of the Case

The plaintiff was an employee at a New York City wellness center that provides massage therapy services as well as yoga classes. The owners of the center, a husband and wife, both had managerial roles in the company, with the husband being the plaintiff’s direct supervisor.

According to the court’s recitation of the facts, the plaintiff’s relationship with the husband was “purely professional,” and he seemed happy with her work. However, at some point, the husband told the plaintiff that his wife might become jealous of her because she was “too cute.”

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Earlier this month, a New York City landlord with over 4,500 rental units was named in a New York discrimination lawsuit alleging that the landlord illegally discriminated against prospective tenants. According to a local news report, the landlord was engaging in “extensive and systematic” discrimination based on the race and family size of applicants.

The report discusses the findings of an investigation conducted by a New York non-profit organization that focuses on fair housing initiatives. The organization used volunteers to pretend that they were interested in renting an apartment from the landlord. Both white and black applicants were used. The white applicants reported ample vacancy and median rents around $1,450. However, the black applicants were treated differently, often being told that there was no vacancy in the building, and when a room was made available to rent, it was at the higher median price of around $1,575.

The landlord was also accused of turning down applicants who were using public assistance and also requiring families with young children to undergo extensive lead-testing. The article notes that the landlord agency was named in a lawsuit making similar claims 25 years ago, which settled out of court through a consent decree.

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An executive order recently signed by President Barack Obama bars the federal government from accepting bids from contractors found liable for age discrimination. The order also bars companies with federal contracts from binding workers to arbitration agreements in age discrimination claims.

The idea, Obama later said, is not to penalize companies so much as emphasize the opportunity to follow good workplace practices and legal compliance.

While the order won’t affect every company, it’s worth noting 1 in 5 American workers are employed at a firm with a federal government contract. What’s more, a 2010 Government Accountability Office report indicated contractors responsible for two-thirds of the biggest labor law violations went on to score federal contracts.This order serves to press companies to more carefully craft internal policies and also heightens awareness of the growing problem of age discrimination in the workplace.
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A food service worker, blind in one eye, says he was ridiculed by managers for being a “Cyclops.” Another, who suffers from cerebral palsy and a rare condition that makes his nose abnormally large, was routinely mocked, his voice and mannerisms mimicked by higher-ups. These and several others claim evidence their high-profile New York City employer made sure they worked in less desirable, “back of the house” positions due to their disabilities, to ensure customers wouldn’t see them. Another says he was transferred to another assignment when he complained of his co-workers’ poor treatment.

These kinds of actions in the workplace are not only cruel – they’re illegal.

Disability discrimination is barred under the Americans with Disabilities Act (ADA), the 2008 ADA Amendment Act (which strengthened protections for disabled workers after years of U.S. Supreme Court decisions that narrowed them significantly), the Rehabilitation Act, and the New York State Human Rights Law, codified in N.Y. Exec. L. 290, which has definitions of disability that are even more inclusive.
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A great deal of progress was made in the women’s movement for equality in the workplace during the 1970s and 1980s.

However, it seems since the mid-1990s, that progress has sputtered, given that, among full-time employees, women earn 77 percent the salaries of their male counterparts. This is true even when we account for the fact that women tend to work in differing occupations, which pay less on the whole.

When women who are as equally qualified as their male counterparts are systematically paid less, overlooked for promotions or given less desirable job assignments, this is unquestionably a form of gender discrimination, barred under Title VII of the Civil Rights Act of 1964.

However, there are many other manifestations of gender discrimination that may be more subtle and tougher to recognize. For example, the EEOC defines sexual harassment as a form of gender discrimination. Also, adverse actions taken on the basis of pregnancy and related conditions (i.e., childbirth recovery, nursing, etc.) are considered a form of gender discrimination, barred under provisions of the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act and portions of the Family Medical Leave Act. In some cases, targeting workers on the basis of weight or appearance could also be a form of gender discrimination if such action focuses solely on the female employees.
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In 2013, it’s unfortunate – and sometimes maddening – that we must continue to face down issues of workplace discrimination.But while litigation for many protected classes often serve to make the rules clear-cut, it’s not as much the case for those in the lesbian, gay, bisexual and transgender community. That’s because the federal protections for those who who identify as LGBT are limited, and only a handful of states have strong protections for these workers.

This leaves many of the estimated 5.4 million LGBT workers at risk for an inability to provide for themselves and their families.

New York fares better than most states, but we still have far to go.

A 2012 ruling by the U.S. Equal Employment Opportunity Commission extends Title VII prohibitions on sex discrimination to include those who are transgender and gender non-conforming.

In New York, employment discrimination law covers only sexual orientation, according to the Movement Advancement Project. The same non-profit research firm reports that about 50 to 59 percent of the state population is protected from employment discrimination on the basis of gender identity through local ordinance. Only 16 states have 100 percent, statewide gender identity protection.

Some 20 states protect workers from discrimination on the basis of sexual orientation. MAP recently compiled a report indicating that on the whole, LGBT workers face more discrimination, receive fewer benefits and pay more taxes than their straight counterparts.

What this means is that in more than half of the states in the U.S., one can still be fired simply for being gay or transgendered. For example, one man featured recently in The New York Times was laid off after working nearly 10 years as an adjunct professor of communications at a small community college in Missouri – simply and expressly because his boss disliked his sexuality.

A federal bill called the Employment Non-Discrimination Act would bar on-the-job discrimination against anyone on the basis of gender identity or sexual orientation. Similar measures have failed to gain steam numerous times since the 1990s. However, both houses of Congress have their own version of the legislation now and the measure seems to have gained substantial support. Committee discussion is expected early next month.

The primary forms of LGBT discrimination, as outlined by MAP’s research, are:

  • Bias and discrimination in hiring;
  • On-the-job unfairness and inequality;
  • Wage penalties and gaps;
  • Lack of legal protections;
  • Unequal access to health insurance benefits;
  • Denial of Family and Medical Leave Act;
  • Denial of spousal retirement benefits;
  • Higher tax burdens.

But even with laws to address these aspects of unfairness, some believe that it has to start from within the agency. If discrimination is part of the culture of an organization, it’s going to be pervasive no matter what laws are enacted.
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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.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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