New York Employment Attorneys Blog

Abercrombie & Fitch prides itself on being a trendy brand focused on image. Its management attaches great importance to marketing policy regulating Sales associates' and employees' looks and outfits.

A 20 year-old college student and practicing Muslim, Hani Khan is a former employee of Abercrombie & Fitch. She wore a hijab while at work in an Hollister shop, a subsidiary of A&F. According to Ms. Khan, a manager first informed her that if she was going to wear a hijab, she needed to wear one that matched store colors. If she did not, she would be in violation of the store's "look policy."

Ms. Khan complied with the store's policy and carefully picked a hijab that matched store colors. But, a few months later, a visiting district manager allegedly told Ms. Khan to speak with a Human Resources manager who then requested her to remove the head scarf while she was at work. Because of her religious convictions, Ms. Khan declined the request and was then dismissed from the company.

The EEOC filed an employment lawsuit on behalf of Ms. Khan in California alleging a religious discrimination.

A couple from Temple, AZ who alleged they received discriminatory treatment from their apartment manager, were paid $197,500 in a settlement, the largest fair housing lawsuit settlement in the history of the civil division of Arizona Attorney General's Office.

Hany Ibrahim and his wife Soha Abdelrahman moved into their apartment in Villatree in July 2006, at which time they were asked by their apartment manager about their ethnic background and religious affiliation. They were asked to fill out a second application after the first one was allegedly "lost".

Once they moved in, the tenants complained about a maintenance worker entering their apartment without authorization or notification. The apartment manager then said: "This is our way. If you don't like it, you can go back to where you came from," according to the complaint. The apartment manager threatened them with retaliation, saying she would make their lives "miserable" if they ever decided to file a complaint about these incidents.

Things became even more challenging when the apartment manager told them their unit would be once again subject to an inspection. Soon after, the management insisted on the tenants signing a money order that belonged to the unit's previous occupants.

Right after, the apartment manager tried to evict the tenants, claiming they had committed fraud. The couple was also accused of harassing other tenants and received notices threatening them with unwarranted eviction. They finally moved out in October 2006 and filed suit with the state.

The HALDE (Haute Autorité de Lutte contre les Discriminations - Equal Opportunities and Anti-Discrimination Commission), the French equivalent of the EEOC, released its annual report (in French only) in April 2011. This document highlights the differences between discrimination claims in the US and discrimination claims in France, and even in Europe in general.

By reading this report, one would notice that in France too, discrimination claims are rising, even more so than in the US. For the last three years, the number of claims brought before the HALDE has risen by 20% each year and there were 12,467 claims filed in 2010. In the US, statistics published by the EEOC show a rise of 7.12% in the number of claims between 2009 and 2010. The number of charges diminished in 2009, by 2.2% after a rise of 15.2% in 2008. There were 99,992 charges brought before the EEOC in 2010.

In 2010, the maximum amount of damages allocated by a judge in a case where the HALDE was present was 280,000€ ($394,000) for gender and pregnancy discrimination. In France, national origin and disability are the most alleged discrimination and represent respectively 27% and 20% of complaints. Because the EEOC does not consolidate statistics in the same way, it is hard to compare the data. However, race was among the primary types of alleged discrimination in 2010, with 35.9% of the claims, compared to 36.3% being retaliation claims. Disability also represents 25.2% of the claims in the US.

The HALDE aims at improving employment law and defending workers' rights. The commission issues reports and resolutions that are most of the time followed by either courts or the government. For example, the HALDE argued that it was discriminatory to require candidates who wish to pass the police entrance exam to be of a minimum stature. Thereafter, the French Government decided to remove the requirement.

Just like the EEOC, the French HALDE can also decide to file a complaint with the District Attorney when there is a discrimination claim. It can also support the employee before the Court by filing an amicus brief. Statistics show that in 81% of cases, courts will follow the commission's recommendation.

In its report, the HALDE quotes some of the examples that led the commission to file a complaint with the DA. For example, in one case, an employer refused to hire a young black painter, arguing "this young guy is black, it won't work well with clients." In another case, a recruiter wrote an e-mail to a pregnant candidate who previously been offered a job, saying: "However your application cannot be sustained in the light of the fact that you're expecting a baby, and we are delighted for you." In the latter case, the HALDE decided to file a criminal lawsuit for discriminatory refusal to hire, which is a criminal offense in France, punishable by three years imprisonment and 45,000€ fine (article 225-2 3° of the French Penal code).

As the law stands today, federal law does not forbid discrimination based on sexual orientation in the same way it forbids discrimination based on gender, pregnancy or race. That is why democratic leaders have proposed the Employment Non-Discrimination Act ("ENDA") which failed to move during the 111th Congress.

The idea was then suggested that President Obama could issue an executive order barring federal contractors from engaging in anti-LGBT (Lesbian, Gay, Bi, Transexual) job discrimination. While President Obama said he supported ENDA, White House Press Secretary Jay Carney refused to say whether or not President Obama would issue an executive order on the matter.

This Friday, House Minority Leader and former Speaker Nancy Pelosi (D-CA) endorsed the idea of President Obama issuing this executive order. Others who have voiced support for this potential directive are Jared Polis (D-CO) as well as Tom Harkin (D-IA) and Jeff Merkley (D-OR). "It's time the government stopped doing business with businesses that discriminate against LGBT Americans" said Richard Socarides, president of Equality Matters, a group advocating for gay rights.

Also, for the Washington Blade, an information website dedicated to the gay community, this executive order could complement ENDA even if the legislation is passed. It would provide LGBT people seeking remedies with two different causes of action. The directive would provide recourse through the Department of Labor while ENDA would provide recourse through the EEOC.

A study from the National Employment Law Project (NELP) found 150 job advertisements on the top four most used job search sites that specified that an applicant must be currently employed as a prerequisite to apply for the advertised jobs. Among those 150 ads, 125 identified specific companies by name. "This perverse catch-22 is deepening our unemployment crises by arbitrarily foreclosing job opportunities to many who are otherwise qualified for them", states the NELP study.

Even several universities, which one might think to be more understanding, were found to use this kind of language, including some of the most famous ones in the country.

"I was absolutely stunned when I was told this by a recruiter" said Michelle Chesney-Offutt, an 53 year-old IT help-desk supervisor who suddenly found herself laid off after 19 years of work. Despite an initially positive response, Michelle was told by the recruiting company that she would not be considered for an interview due to the 'over 6 months unemployed' policy that his client adhered to.

Reps. Hank Johnson (D-Ga) and Rosa DeLauro (D-Conn) just introduced Tuesday a piece of legislation, the Fair Employment Opportunity Act of 2011, H.R. 2501, that would make discriminating against the jobless illegal. It would keep both employers and recruiters from refusing to consider unemployed workers for available positions and would prevent them from including language in any job postings indicating that the unemployed should not apply.

The bill seeks to protect the more than 6 million Americans who have been out of work for more than six months. "Discrimination against the unemployed--especially the long-term unemployed--in jobs ads and hiring practices flies in the face of what we stand for as a nation: 'Equal opportunity for all' said Rep. Johnson in a statement.

The Ninth Circuit Court of Appeals and the Supreme Court appear to be at odds in their ideologies and concepts of judicial protocol. The Ninth Circuit, which has the largest jurisdiction of any federal appeals Court, covers nine Western states, including California, and is believed to be very liberal.

According to the San Francisco Chronicle, the Supreme Court reversed or vacated 19 of the 26 decisions it looked at from the Ninth Circuit this judicial term. In all, the Ninth Circuit provided 30% of the cases the Supreme Court chose to hear.

The Supreme Court sent a lot of "piques" to the Ninth Circuit and particularly to Judge Stephen Reinhardt, who is seen by analysts as one of the main targets of the justices. For example, in restoring Steven Jackson's conviction for raping a 72-year-old-woman, the high court called the Ninth Circuit's decision "as inexplicable as it is unexplained."

Reinhardt said he did not feel personally reprimanded because the justices often employ strong language. "It would be easy not to get reversed if you just tried to guess what five of nine were going to say about the case," he said. "If you follow the way it is, before they change it, you're going to get reversed."

According to Barry McDonald, a constitutional law professor at Pepperdine University, the Ninth Circuit is being watched and monitored closely by the Supreme Court because it is largely democratic, with 59% of the judges having been appointed by democratic presidents. "The Supreme Court has five justices with a conservative bent, so it's not surprising that the value-laden rulings from the Ninth Circuit often clash with the conservative majority of the Supreme Court" said McDonald.

But because of its size, the Ninth Circuit also provides the Supreme Court with a lot of cases and a wide range of issues. The region the Ninth Circuit has jurisdiction over is very diverse in terms of immigration issues, inmates' habeas corpus petitions, environmental disputes, and employment law issues.

This contentious relationship might give a new argument to those who wish to split the Ninth Circuit into two different circuits. This idea was brought before Congress for the first time in 1993. In March 2007, Justices Anthony Kennedy and Clarence Tomas testified before the House Appropriations Subcommittee and the consensus among the justices of the Supreme Court was that the Ninth Circuit was too large and should be split.

The EEOC is filing a class action on the behalf of three female employees of Fred Meyer's local branch in Oak Grove (OR) alleging the company did not protect them against harassment inflicted by a regular costumer.

According to the Federal Agency, the costumer touched one of the employee's breasts, groped her knee and and rubbed up against her body. Although many employees complained, they were instructed to continue serving the costumer

Fred Meyer has already dealt with issues regarding sexual harassment in the workplace in the past. In 2008, at the EEOC's urging, the company agreed to settle a case involving a manager harassing his subordinates, and paid $485,000.

Back then, Fred Meyer agreed to provide its employees with specific anti-discrimination training. As this training does not seem to be entirely successful, the suit the EEOC just filed seeks damages not only for the three alleged victims but also aims at changing Fred Meyer's policies and training in order to prevent such issues in the future.

It is not only in New York that there is a raise in the number of discrimination cases filed, but also within the Federal government.

Last Wednesday, the EEOC released a report on the Federal workforce and found that Federal job discrimination complaints increased by nearly 4 percent in fiscal 2010 over the previous year. The most common allegation was retaliation against employees who complain about discrimination. Age and race were the next most frequently alleged bases and each registered a 5 percent increase.

"We are concerned that retaliation is the most common basis of discrimination alleged, the Federal government should be a model workplace" said Dexter Brooks, director of the EEOC's Federal Sector Programs. Unlike in the private sector, where the EEOC investigates and processes charges of discrimination, federal agencies themselves are responsible for handling complaints of discrimination filed against them.

The Report found that the average processing time for conducting investigations dropped from 185 days in fiscal year 2009 to 181 days in 2010. It is worth noting that the parties entered into settlements in 21 percent of the total complaint closures this year.

The Coalition for Change, a civil rights group considered this report proof of the "failure of presidential leadership" on the issue.

During Mayor Michael R. Bloomberg's first two terms in office, the number of lawsuits by employees accusing the city of discrimination was 12 percent higher than the number during Rudolph W. Giuliani's two terms as mayor.

The legal claims came from employees in a wide range of departments and the alleged discriminations are based on various criteria: age, sex, sexual orientation and sexual harassment, ...

These information were provided by the city under the Freedom of Information Act.

"This administration is just not serious about civil rights enforcement" said Craig Gurian, a former counsel to the New York City Commission of Human Rights who is now executive director of the Anti-Discrimination Center of Metro New York. Opponents to the Bloomberg administration criticize its policy and think that the heavy caseload and the settlement payouts raise questions about the city's efforts to tackle discrimination. From 2002 to 2009, the city settled over 400 employees discrimination cases, for more than $69 million.

Representatives of the Bloomberg administration argue that the municipal work force has risen since Mr. Giuliani's administration and that the increase in discrimination claims reflects an ailing economy, as well as a growing willingness among employees to speak out and seek legal redress, as encouraged by the administration. Yet, some plaintiffs still think that it is hard to speak out, as they fear retaliation.

Workplace discrimination is also an issue in Mr. Bloomberg's business life. The firm he founded and led, Bloomberg L.P., has been battling a long-running lawsuit contending that Mr. Bloomberg and top managers created a hostile workplace for pregnant employees. Mr. Bloomberg testified for about eight hours in 2009 and the case is expected to go to trial next year.

Glass stairs can be interpreted as a modern vision of architecture - an elaborate showing of how far we've come as a society in terms of innovation and design. To others, it can be a symbol of thoughtlessness or even a hostile work environment.

After spending $105 million dollars of taxpayer money on a brand new courthouse in Ohio, builders and many others have faced heavy criticism for not thinking about what appears to be an obvious flaw: the fact that women, who often wear dresses or skirts, will be using the stairs. Although some are taking a jesting attitude toward the new construction, like one judge who was quoted in the Columbus Dispatch as saying ""if you wear dresses, you're on notice that you might want to take the elevator, as I will be doing," many have been offended by the apparent thoughtlessness that went into the planning and construction of the stairs.

The big question that remains, however, is will they have to redo the stairs? Follow the story here.

The issue of gender-identity discrimination has been discussed many times throughout this blog. Today, this particular form of discrimination is still a problem as it is not always recognized.

Connecticut Gov. Dannel P. Malloy just signed a bill known as "An Act Concerning Discrimination", extending workplace protection to transgendered workers. It is now the 15th state to protect against this form of discrimination.

It will now be illegal to unfairly prevent employment or fire workers solely based on their gender-identity, as opposed to job performance.

While Connecticut law has protected workers against discrimination based on sexual orientation since 1991, the legislation concerning gender-identity has just been signed today.

Although some New England states including Maine, Rhode Island, and Vermont have laws baring gender discrimination, New York state only currently protects against discrimination based on sexual orientation.

In a today's decision, the Ohio Supreme Court expanded protection for workers injured on the job. An employee who is injured on the job but does not have a workers' compensation claim is nonetheless protected from retaliation.

In this case, the Plaintiff injured his back in April 2008 and got fired less than an hour after he reported the injury to the company's president. Although the worker filed suit alleging retaliation, he did not at the time file a workers' compensation claim at the time of his dismissal.

The Court ruled that the intent of the statute is to protect all injured workers, regardless of workers compensation claim status. Leaving a gap in protection before the filing of a claim would create a too disparate gap between employer and employee rights following an injury. Despite that, the Court did not find that the timing of the firing was sufficient to establish retaliation in the case.

Strip club operator Scores Holding Co. Inc. agreed to settle a collective class action filed on behalf of dancers, servers and bartenders. Under the terms of the proposed settlement, which still requires court approval, the company would create a $450,000 fund to settle the claims of 83 plaintiffs who opted in to the FLSA collective action.

Plaintiffs alleged that the company was stealing tips through a system called "diamond dollars," which allows costumers to tip workers in 'play' money. According to the Plaintiffs, it was not possible to cash these diamond dollars at all times and the company deduced and retained a portion of the tips. Plaintiffs also alleged that the company failed to pay its workers the statutory minimum wage for all hours they clocked, failed them to pay at a proper overtime rate for all hours they worked in excess of 40 hours, and failed to keep accurate and adequate records of wages, hours worked, and deductions taken from wages.