New York Employment Attorneys Blog

Edgar M. Rivera, Esq.

Shaela Evenson, a former schoolteacher at Butte Central Catholic School, a Montana Catholic School, alleged that Butte Central terminated her employment upon learning that she was pregnant while not married. On May 11, 2015, Butte Central filed its answer to Ms. Evenson’s complaint, in which it asserted that as a ministerial employee, Ms. Evenson’s employment was exempt from Title VII. Title VII, among other protections, prohibits an employer from terminating an employee for becoming pregnant.

Ms. Evenson and her partner, Marilyn Tobin, are not married. Upon being hired, Ms. Evenson signed an employment agreement that stated that she agreed to abide by all Butte Central’s rules and regulations, including “all of the moral and religious teaching of the Roman Catholic Church” and that she would not “engage in any personal conduct or lifestyle which would be at variance with or contrary to the polices of the School and the Diocese or the moral and religious teachings of the Roman Catholic Church.”   Presumably, this includes becoming pregnant out of wedlock.

Although a ministerial exception has long been recognized by the Courts of Appeals, not until 2011 did the United States Supreme Court (“SCOTUS”) have the opportunity to decide the issue. In Hosanna-Tabor Church v. EEOC, the Court agreed with Courts of Appeals: “The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punish church for failing to do so, intrudes upon more that a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”   In Hosanna-Tabor, Cheryl Perich, a teacher at an Evangelical Lutheran church and school, was terminated after asserting rights under the Americans with Disabilities Act. The Court noted three primary considerations: (i) that Petrich received a “diploma of vocation” according her the title of “Minister of Religion, Commissioned”; (ii) that she claimed a special housing allowance on her taxes that was available only to employees earning their compensation “ ‘in the exercise of the ministry’ ”; (iii) and her duties included teaching her students religion, leading them in prayer, taking her students to a school-wide chapel service, and leading the chapel service herself twice a year. Although “reluctant to adopt a rigid formula for deciding when an employee qualified as minister,” the Court decided that the exception covered Perich. Perich performed “an important role in transmitting the Lutheran faith to the next generation.”

Butte Central cannot likely escape liability under Title VII unless Butte Central can show that Ms. Evenson was similar to Perich and, therefore, a minister.  For nine years, Ms. Evenson taught literature and physical education to sixth, seventh, and eighth grade students at Butte Central. She led class prayer, participated in faith activities, attended mass, and took continuing education on the application of Roman Catholic Church doctrine and teaching in the classroom setting; however, she was not Catholic, of which Butte Central was aware, was not assigned to teach religion courses, held no ordination in the Catholic Church, and received no certification in connection with teaching at Catholic schools. Therefore, Ms. Evenson likely did not consitute a “minister.” However, because the approach adopted by SCOTUS requires a fact-intensive inquiry and discovery has not yet completed, this prediction is premature.

If you believe your employer has discriminated against you please contact The Harman Firm, PC.

Yarelyn Mena and Owen H. Laird, Esq.

At a hearing on April 29, 2015, the House Subcommittee on the Constitution and Civil Justice discussed class action suits. The hearing covered the controversial legislation, “The Fairness in Class Action Litigation Act of 2015” (H.R. 1927). Republican committee members, Bob Goodlatte and Trent Franks proposed the legislation, which would prevent class actions from being certified without proof that each proposed class member suffered property or bodily injury of the same type and extent as the named class representative(s).

Opposition to H.R. 1927 flooded in shortly after the hearing. Paul Bland, Executive Director of Public Justice said that the legislation would make it “essentially impossible for Americans to join together in bringing class action lawsuits for nearly any illegal act a corporation might undertake.” Bland continued: “Think Brown v. Board of Education [the seminal case desegregating public schools] was a good idea? Congressman Goodlatte’s bill would make bringing that case impossible. By eliminating any class action that does not involve quantifiable ‘property’ loss or personal injury, the legislation would eliminate any case that didn’t involve money or blood.” Many fundamental class action lawsuits, such as Brown, that have affected the course of our legal history, would not have been possible under the proposed legislation. Class action lawsuits in federal court are often classified as ‘no-injury’ or ‘overbroad’ in situations where a plaintiff experienced an issue with a product or service, and others who also have purchased the product or service join the action. Cases with similar circumstances would never make it to litigation if adhering to H.R. 1927’s provisions.

Corporations would be the chief beneficiaries of the enactment of H.R. 1927. This legislation stands to limit the number and scope of potential lawsuits against them, on behalf of both employees and consumers, by making it difficult for plaintiffs to join together to file a lawsuit. Individuals, unable to unite, and faced with a lengthy litigation and extensive legal costs which often outstrip the damages asserted, will elect not to assert their rights. This dangerous consequence would allow for illegal actions to go unchecked by the legal system, as individuals are continuously violated of their rights until they pass the hurdles H.R. 1927 creates to develop a class action suit.

The purpose of class actions is to allow for individuals to act as a group to take action against widespread illegal conduct. This is especially true of employment cases where many employees are unaware that they are being wronged until another employee brings a lawsuit based on an illegal action that also pertains to them. Moreover, many employees who are afraid to pursue action individually, are willing to pursue their rights as a member of a group. A class action gives them the potential to receive compensation for any wrongs. Alexandra D. Lahav, professor at the University of Connecticut School of Law, articulates: “H.R. 1927 would not improve class action practice or cure the problems that exist in that practice. Instead, under this bill companies would have an unfettered ability to lie about their products and services, discriminate against employees, defraud customers and business partners, and commit a host of other violations in the law, subject only to sporadic government enforcement.”

If you believe your employer violated your employment rights, please contact The Harman Firm, PC.

Yarelyn Mena and Edgar M. Rivera, Esq.

Recently, The New York Times interviewed over 150 nail salon workers and owners, who revealed a culture of wage theft. According to the interviews, the overwhelming majority of workers were paid below minimum wage, if at all, and workers’ tips were docked as punishment for trivial mistakes. Only 25 percent of the workers interviewed reported earning the New York minimum hourly wage. Moreover, all but three workers reported their wages were illegally withheld. Employers were rarely held accountable for these violations.

Nail salons are particularly common in New York City; their number has tripled in the last 15 years. Nora Cacho, a worker at the nail salon chain Envy Nails in East Harlem, reported that after a 66-hour workweek, she earned approximately $200, including tips, which is effectively a $3 per hour wage. Many patrons are unaware of these appalling violations of the law.

Nail salon workers are predominately undocumented immigrants from Korea, China and Latin America. Typically, their employers tell them that they should be grateful for having nail salon jobs because of their immigration status. Workers often lack any knowledge of wage and hour laws and the means to understand those laws because of limited understanding of the English language.

In response, the New York State Department of Labor (“DOL”), in conjunction with several other agencies, conducted its first investigation of the labor practices of nail salons in the United States. The DOL investigated 29 salons and found 116 wage violations, including minimum wage and overtime violations.

Despite tremendous obstacles, emboldened workers successfully have brought lawsuits against their employers. For example, in December 2009, with the help of the Legal Aid Society, workers from three Babi Nails salons in Long Island filed a lawsuit in the United States District Court for the Eastern District of New York, alleging that they earned less than the minimum wage and received no overtime pay. After this lawsuit, nail salon workers from Babi Nails and other local salons weekly picketed the salons. On March 22, 2012, a jury awarded the workers $160,000 in unpaid wages and $80,000 in overtime pay.

On May 10, 2015, New York’s Governor Andrew Cuomo ordered a multiagency task force to tackle wage theft and health hazard issues across all nail salons in the state. The task force will conduct investigations in each salon, implement new rules to protect workers from common chemicals used in nail salons, and create a six-language educational campaign to inform workers of their rights in the workplace. Unlicensed, noncompliant employers will be ordered to shut down. Governor Cuomo stated, “New York State has a long history of confronting wage theft and unfair labor practices head on, and today, with the formation of this new Enforcement Task Force, we are aggressively following in that tradition. We will not stand idly by as workers are deprived of their hard-earned wages and robbed of their most basic rights.”

Nail salon workers deserve the same protections that all workers in the labor force can rely on in the United States. If you believe your employer has denied you the minimum wage, failed to pay overtime, or illegally withheld your wages, please contact The Harman Firm, PC.

Edgar M. Rivera, Esq. 

On April 29, 2015, the Supreme Court of the United States (“SCOTUS”) decided Mach Mining L.L.C. v. Equal Employment Opportunity Commission, which addressed the issue of whether and how courts may review the U.S. Equal Employment Opportunity Commission (“EEOC”)’s efforts to attempt to remedy unlawful workplace practices through conciliation prior to filing a lawsuit.

The EEOC is the federal agency tasked to enforce federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”), which requires the EEOC to attempt conciliation between the parties before filing a lawsuit.  After an aggrieved individual files a charge of an unlawful workplace practice with the EEOC, the EEOC must notify the employer and undertake an investigation. If the EEOC does not find reasonable cause to pursue the claim, it dismisses the charge and notifies the parties. The aggrieved party may then pursue his or her own lawsuit if he or she chooses to do so. If the EEOC finds reasonable cause to bring a Title VII claim, it must, “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion,” prior to filing a lawsuit against the employer.

In Mach Mining L.L.C., a woman filed a charge with the EEOC claiming that Mach Mining, LLC had refused to hire her as a coal miner because she was female. The EEOC investigated the allegations and found reasonable cause. In a letter announcing that determination, the EEOC invited both the company and complainant to participate in “informal methods” of dispute resolution, promising that an EEOC representative would soon contact them to begin the process. The record did not disclose what, if anything, happened in furtherance of that promise; however, approximately one year later, the EEOC sent Mach Mining a second letter, stating that such conciliation efforts had occurred and were unsuccessful. The EEOC then sued Mach Mining, alleging gender discrimination.

Mach Mining claimed that the EEOC had not attempted to conciliate in good faith, evidenced by the lack of follow-up to the first letter. The EEOC responded that its conciliation efforts were not subject to judicial review and that, regardless, the two letters it sent to Mach Mining provided adequate proof that it had fulfilled its statutory obligation. The district court agreed with Mach Mining, stating the courts could review the adequacy of the EEOC’s efforts. The Court of Appeals for the Seventh Circuit reversed. SCOTUS granted certiorari to address whether and to what extent the EEOC’s attempt to conciliate is subject to judicial review.

SCOTUS answered the first question in the affirmative, reasoning that at least a “smidgen” of judicial review was necessary because if the EEOC did not “endeavor” at all, it would fail to satisfy a necessary precondition to filing a lawsuit. SCOTUS further reasoned that because the “informal methods” in the statute all necessarily involve communication between parties, including the exchange of information and views, the EEOC’s conciliation attempt must at least include such communications. The Court concluded that the EEOC must inform the employer about the specific allegations, describing what the employer had done and which employees have suffered as a result, and must try to engage the employer in some form of discussion so as to give the employer an opportunity to remedy the allegedly discriminatory practice to meet the statutory condition to file suit. If the EEOC does not take those specified actions, it has not satisfied the statutory requirements and, therefore, cannot file suit. Thus, in a unanimous decision, SCOTUS held that the courts may review the EEOC’s actions to determine whether it has fulfilled its duty to attempt conciliation of claims based on the above-mentioned requirements, and remanded the case. The Court stated that this approach ensures that the EEOC complies with its statutory obligation while allowing it to exercise the discretion it has under the statutory framework to decide how to conduct conciliation efforts and when to end them.

If you believe your employer has discriminated against you and have already filed a charge with the EEOC, please contact The Harman Firm, PC.

Yarelyn Mena

Today, job applications are often completed on the Internet and, sometimes, on social media sites, such as LinkedIn.  LinkedIn allows users to apply to multiple jobs with a LinkedIn account, making an applicant’s information readily available to employers. The public access to potential employee information may facilitate an applicant’s job search; however, such access can also be detrimental. For example, Tracee Sweet lost an employment opportunity based on information procured by a prospective employer through LinkedIn.

Ms. Sweet applied to work for a company in the hospitality industry, through LinkedIn. After a seemingly successful interview, the General Manager notified Ms. Sweet that the company would offer her a position. Shortly there after, the company rescinded its job offer. Confused as to why she was rejected after the company’s initial excitement with her, she reached out to the General Manager, who informed her that the company checked, and was not pleased with, her references. The company used LinkedIn’s “Reference Search” function, which allows users who pay a subscription fee to find people and companies, for which applicants previously may have worked.

Unsatisfied with the company’s decision, Ms. Sweet, on behalf of herself and others similarly situated, filed a class action suit against LinkedIn in the Northern District Court of California, alleging that LinkedIn’s Reference Search function violated their rights under the Fair Credit Reporting Act (“FCRA”). The FCRA protects consumers from the transmittal of incorrect information in a “consumer report.” In this context, a consumer report is any form of communication by a “consumer reporting agency” used to detail a consumer’s credit standing, credit capacity, character, overall reputation, or mode of living which is used for the purpose of serving as a factor in establishing the subject of the consumer report’s eligibility for employment.

The court granted LinkedIn’s motion to dismiss the case because the court was not convinced that LinkedIn’s Reference Search function is a consumer report under FCRA. The court emphasized that each of LinkedIn’s users provide information about him or herself, including past employers and employment dates, to LinkedIn’s network and, thereby, agree to the online publication of that information. The court further stated that LinkedIn is not a consumer reporting agency under the FCRA by virtue of having transmitted, with the consent of the user, an applicant’s information to a third party.

As more employers begin to use social media to evaluate employment applicants, applicants must be cautious of their online presence. Although avoiding social media altogether is increasingly difficult since many companies refer to social media when making hiring decisions, if you have a professional social media account, make sure it is up-to-date and does not contain information that will negatively affect your job search. The applicant is responsible for maintaining a positive media presence, not the company that hosts the information.

If you believe your employer wrongfully discriminated against you through use of a consumer report, please contact The Harman Firm, PC.

 

Owen H. Laird, Esq.

Many people are unaware of the significance of May 1. May 1 is May Day, also known as International Workers Day. In many countries across the world, “Labor Day” is celebrated on May 1. These holidays came to be in the late 19th century, as labor movements grew in size and significance, and nations began to recognize the importance of both workers and workers’ rights.

Although trade unions and organized labor have waned in power and influence, workers are still struggling in the United States and abroad to improve working conditions, to earn a fair wage, and to expand their rights. Each month, newspapers across the world are full of stories about workers coming together, from fast food workers seeking to increase wages in the United States to domestic workers trying organize to protect themselves in India, from fighting for safer workplaces here in New York to ending sweatshop labor across the globe.

Many people view the employer-employee relationship as one of subservience, where the employee should be happy to accept whatever his “generous” employer is willing to offer. We at The Harman Firm do not agree; workers have fought for rights in the workplace and must be allowed to exercise those rights when they are infringed upon by indifferent employers. Employers routinely and knowingly fail to pay their employees the overtime they are entitled to by law, and even fail to pay their employees the basic minimum wage. In order to secure the wages they are due, workers must demand to be paid.

In addition to fighting to enforce overtime and minimum wage laws, workers must still fight for basic human rights in the workplace as well. Despite a popular attitude that the dark days of race and gender discrimination are behind us, people still suffer from discrimination every day. We represent those who have been discriminated against because of their race, color, religion, gender, national origin, marital status, military status, sexual orientation, age, disability, citizenship status, and partnership status.

With the stock markets at all-time highs and corporate profits ever-increasing, that businesses continue to pad their balance sheets by treating workers as a commodity to be used up, rather than individual human beings, is shameful. Employers are willing to break laws and violate their employees’ rights to cut costs and increase profits. The only way to force these businesses to treat their employees properly is to make breaking the law too expensive to be a viable option by asserting workers’ rights. The only way to make companies feel the cost of their illegal actions is to stand up and go to the Equal Employment Opportunity Commission, go to the Department of Labor, or bring a case to court.

The sad truth is that employees with the courage to face their employers and assert their rights are often retaliated against for doing so. Rather than being intimidated, workers must understand that retaliation is also illegal and fight back against it. Even though workers are less powerful and very rarely able to engage with an employer on equal footing, governmental agencies and the judicial system provide them with a way to make their voice heard.

This May Day, if your employer is breaking the law, do something about it. The Harman Firm is prepared to provide legal assistance and counsel to employees with a wide range of employment claims, including wage-and-hour, discrimination, hostile work environments, harassment, and retaliation. If you believe that your rights have been violated, please contact us.

Yarelyn Mena and Edgar M. Rivera, Esq.

In February 2015, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in the South District of Florida against Ruby Tuesday, a national restaurant chain, alleging age discrimination. The EEOC alleges that Ruby Tuesday discriminated against older applicants for both “front of the house” positions, which include host and server positions, and “back of the house” positions, which include chef and kitchen manager positions. The complaint claims that Ruby Tuesday’s management told older applicants that they were “too experienced,” that Ruby Tuesday was searching for “fresh” youthful employees, and that “[Ruby Tuesday] wasn’t looking for “old white guys.”

This lawsuit is not the first time Ruby Tuesday has been accused of age discrimination. In 2013, Ruby Tuesday agreed to pay $575,000 to settle another age discrimination lawsuit filed by the EEOC in Western District of Pennsylvania, which alleged that Ruby Tuesday directly or implicitly instructed the managers at six restaurants in Pennsylvania and Ohio to not hire servers, bartenders, hostesses or kitchen staff over the age of 40.

People are living longer, healthier, and more productive lives; however, the unsupported stereotype still exists that older workers are mentally and physically inferior to younger workers and lack flexibility and enthusiasm. Age discrimination is profoundly harmful, depriving the national economy of the productive labor of millions of workers, substantially increasing the costs of both unemployment insurance and Social Security benefits, and inflicting economic and psychological injury upon workers robbed of the opportunity to engage in productive and satisfying occupations. As Kerry Segrave, the author of numerous works of social history, famously stated: “Racial bias targets people for what they are. Age bias targets people for what they become.” The Age Discrimination in Employment Act (“ADEA”) protects individuals above the age of 40 who are discriminated against based on their age. Robert E. Weisberg, the EEOC attorney representing the plaintiffs in 2015 lawsuit, stated: “As workers remain in the workforce longer, it is more important than ever that we refocus on the principle of non-discrimination based on age in the workplace. The EEOC will vigorously protect the rights of job applicants to ensure that hiring decisions are based on abilities, not age.”

In addition to discriminatory hiring, older workers are likely to be unemployed for longer periods of time than their younger counterparts and typically earn less after losing a job. The Washington Post reports that over 35 percent of those unemployed from age 55 to 64 remain so for the long term. This percentage increases to 45 percent for unemployed workers age 65 and older. Age discrimination forces older people into retirement earlier than planned and with less money in their retirement years. Older workers are also likely to earn less after losing a job. Accordingly to Heidi Shierholz, the U.S. Department of Labor’s Chief Economist, older workers earn 13.5 percent less in a new job after losing one than younger workers. This is particularly troublesome because in many families, an older worker is the breadwinner, and when he or she cannot find work, the rest of the family is unable to afford basic necessities. The elimination of discriminatory barriers keeping older but capable workers out of the workforce is essential for a healthy economy and healthy nation.

Employers must recognize that staffing older workers is a benefit and not bad luck. If you believe your employer illegally discriminated against you because of your age, please contact The Harman Firm, PC.

 

Ciera Ambrose and Owen H. Laird, Esq.

Recently, there has been an uproar surrounding two recent so-called “religious freedom” acts passed in Indiana and Arkansas. These laws, approved by the Republican-dominated legislatures and signed by Republican Governors, allow businesses in those states to refuse service to gay people on the basis of religious beliefs. While it is illegal under federal law to refuse service to someone because of his or her race, there is no similar protection for sexual orientation.  As a result, individual states are able to pass these “religious freedom” laws.

Laws allowing businesses or individuals to refuse service based on religious beliefs raise a number of ramifications concerning employment law, including the potential for conflict, up to and including employment discrimination, based on differing religious beliefs between employers and employees.

For example, Crystal O’Connor, whose family owns Memories Pizza in Walkerton, Indiana, told local TV station WBND that the state’s new religious freedom law protects their right to deny service to gay couples.  O’Connor stated that their Christian beliefs would prevent them from catering a same-sex couple’s wedding: “If a gay couple came in and wanted us to provide them pizzas for a wedding, we would have to say no.”

Now imagine that Memories Pizzeria had an employee who did not agree with this practice, and chose to serve gay customers. Would the owners of Memories Pizzeria have the legal right to terminate this employee? Or, conversely, if a business desired to serve gay customers, but an individual employee refused to do so, citing “religious freedom,” would the employer have the right to terminate that employee?

These questions are similar to those raised in 2012, when individual Illinois pharmacists were permitted to refuse to sell the contraceptive, “Plan B,” based on anti-abortion religious grounds. In this matter, an Illinois appeals court ruled that pharmacists may refuse to dispense the “morning after pill,” despite a 2005 executive order that directed all pharmacists to fill prescriptions for the morning after, or “Plan B,” pill. The lawsuit asserted that the Illinois Health Care Right of Conscience Act (the “Act”) should protect individual pharmacists from punishment if they refused to offer a service that is opposed to their religious beliefs. The Act allows pharmacists to refuse to dispense certain items. Although some recognized the order’s intention to “promote timely access to Plan B and other medicine,” they also saw it as an infringement on the “religious freedom of pharmacists who believe that life begins at conception.”

At issue in 2012 was that individuals, contrary to the wishes of the employer, did not want to provide services to customers based on their religious beliefs. Similar disagreements between employer and employee may well arise because of these new “religious freedom” laws. Where employer and employee do not share the same religious beliefs, allowing either employer or employee to act based on those beliefs against the wishes of the other side could easily lead to an employment dispute, and raise implications of religious discrimination.

Key ethical concerns between employers and employees exist as a result of these “religious freedom” acts and employees must remain conscious of the potential negative implications. To remain updated on employment law related news, please visit The Harman Firm, PC’s Blog.

Ciera Ambrose and Edgar M. Rivera, Esq.

Lakeland Eye Clinic (“Lakeland”), a Florida based ophthalmology and optometry center, agreed to pay $150,000 to settle a lawsuit for transgender discrimination under Title VII of the Civil Rights Act (“Title VII”). The eye clinic allegedly discriminated against a transgender worker by terminating her employment for failing to conform to the employer’s gender-based expectations. The complaint alleged that although the employee had performed her duties satisfactorily throughout her employment, Lakeland terminated her employment after she began to present herself as a woman.

Gender-identity discrimination in the workplace occurs when an employer discriminates against an employee for not adhering to expected gender norms. According to Workplace Fairness, a non-profit organization working to preserve and promote employee rights, gender-identity discrimination includes: (i) terminating a transgender employee after the employer learns of the employee’s gender identity or planned transition; (ii) denying a transgender employee access to workplace restroom facilities available to other employees; (iii) requiring a transgender employee to use a restroom not consistent with the employee’s gender identity or presentation; (iv) harassing a transgender employee; (v) permitting and/or refusing to investigate claims of harassment by coworkers and supervisors; or (vi) any other adverse employment action taken because of an employee’s gender identity.

Federal law does not specifically prohibit discrimination based on gender identity, but courts interpret Title VII gender protections to include discrimination based on gender stereotypes. In Price Waterhouse v. Hopkins, where a female employee was rejected from a partnership for being, among things, “overly aggressive for a woman,” the Supreme Court of the United States stated that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group….” The Court memorably stated, “[It does not] require expertise in psychology to know that, if an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.” In Glenn v. Brumby, the Eleventh Circuit explained: “[A] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes…. There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of fender-based behavioral norms.” In Macy v. Holder, the Equal Employment Opportunity Commission found that the complainant’s charge of discrimination based on gender identity, change of sex and/or transgender status was cognizable under Title VII, stating “we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on …sex,’ and such discrimination therefore violates Title VII.” There is no debate over whether Title VII protections include transgender individuals, as long as the discrimination is motivated by gender stereotypes.

After the lawsuit, Lakeland adopted a new transgender policy that prohibits discrimination against employees transitioning from one gender to another, and for sex- or gender-based preferences, expectations, or stereotypes.  Lakeland also implemented a new training program for its managers and employees explaining the prohibition against transgender/gender stereotype discrimination and provided its management with guidance on handling transgender/gender-stereotype complaints.

Being discriminated against because your employer learns you intend to undergo sex reassignment surgery, being retaliated against for failure to conform to a company policy that makes no effort to accommodate transgender individuals, and being harassed by coworkers and supervisors on the basis of your gender identity are all examples of sexual identity discrimination and may be grounds for civil litigation.

If you have experienced gender identity discrimination by your employer, please contact The Harman Firm, PC.

Yarelyn Mena and Edgar M. Rivera, Esq.

On March 16, 2013, Kathryn Zabell brought an action against former employer Medpace, Inc. (“Medpace”) under the Americans with Disabilities Act (“ADA”) alleging Medpace terminated her employment for a perceived disability. In 2010, Medpace hired Ms. Zabell as a Medical Writer II, the second highest level at Medpace for her position. In 2011, Ms. Zabell was assaulted in her home. She notified her boss, Mr. Breen, who allowed her to take time off from work to attend therapy sessions and doctors’ appointments. Weeks after the assault, Ms. Zabell discovered that her assailant had the human immunodeficiency virus (“HIV”). She informed Mr. Breen of her exposure to HIV and requested to take some time off to be with her family, which he approved. Shortly after Ms. Zabell’s return to work, she noticed differences in Mr. Breen’s demeanor towards her; he ceased casual talk, changed his body language around her, and watched everything she touched when she was in his office. Within three months of Ms. Zabell informing Mr. Breen of her exposure to HIV, Medpace terminated her employment. Ms. Zabell claims Mr. Breen discriminated against her as if she had HIV. After she was terminated, Ms. Zabell learned she in fact was not HIV positive.

Mr. Breen and the Senior Medical Writer, Ms. Cafferkey, claim they terminated Ms. Zabell because her work was not progressing and they had to spend a great deal of time editing her work; however, emails between both parties reveal that Mr. Breen and Ms. Cafferkey assured Ms. Zabell of the high quality of her work, with criticisms comparable to other Medpace employees who were not terminated.

Medpace moved for summary judgment on the above-mentioned issue. Although Ms. Zabell did not have a disability, she can establish an ADA claim under the theory of having been “regarded as disabled,” i.e., a perceived disability. To succeed, she must demonstrate to the court that if it were not for Mr. Breen believing she had a disability, she would not have been terminated. In Gruener v. Ohio Cas. Ins. Co., the Sixth Circuit held that the “regarded as disabled” theory of disability discrimination “protects employees who are perfectly able to perform a job, but are rejected… because of the myths, fears and stereotypes associated with disabilities.” Further, for purposes of the ADA “[the] HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.” Ms. Zabell did not require any burdensome accommodations, nor was her work negatively affected, yet when Mr. Breen learned Ms. Zabell was exposed to HIV treated her markedly differently before terminating her employment.

On March 31, 2015, the U.S. District Court for the Southern District of Ohio decided in Ms. Zabell’s favor, denying Medpace summary judgment. Ms. Zabell showed that there was a genuine issue as to whether Medpace’s proffered rationale was pretextual. The court opinion rested heavily on the temporal proximity between Ms. Zabell’s exposure to HIV and her dismissal, Medpace’s changing rational, and unresolved questions of fact regarding Ms. Zabell’s allegedly poor performance.

This case is illustrative of the mistreatment employees often experience. Fully competent disabled workers are ostracized in their workplaces and robbed of their much-needed income over vicious stereotypes and unfounded fears. These myths are so pervasive that Medpace may have discriminated against Ms. Zabell whom it only believed had HIV. Laws such as the ADA aim to protect the disabled and those perceived as disabled against the maltreatment in the workplace.

If you believe your employer illegally discriminated against you because of your disability, please contact The Harman Firm, PC.