New York Employment Attorneys Blog

A Federal Judge in Brooklyn has ordered sweeping changes to be made at the New York City Fire Department, ordering that the City hire more black and Latino firefighters, and giving numerous employees back pay. The ruling, issued by Judge Garafuis of the Eastern District of New York, found that the hiring examination used from the early 90's until recently have had a disparate impact on black and Latino applicants vying for jobs in the FDNY.

In finding for the group of firefighters, Judge Garafuis has instructed the FDNY to overhaul the way in which it screens and hires applicants, and has ordered the city to pay out fines to current minority FDNY employees. The ruling also calls for retroactive promotions for a number of employees who had been subjected to the discriminatory tests.

The ruling also implied that the City must reevaluate its standards for testing firefighters for hiring and promotion, and to ensure that all future tests do not adversely impact minority groups seeking employment.

Retailer Jos. A. Bank, a nationwide chain of upscale clothing retailers, has been hit with a lawsuit alleging a pattern of racial discrimination against non-white employees.

Filed in California by one employee, the suit claims that the employee was terminated after filing a racial discrimination suite with the EEOC against the retailer. Further, the suit states that Jos. A. Bank

"systematically takes adverse employment actions against qualified, high-performing African-American employees in management positions by giving them less-desirable job assignments, lower pay, fewer promotional opportunities, more frequent and harsher discipline and retaliating for complaining about said illegal conduct,"
In particular, the suit claims that African American employees were systematically prevented from receiving management positions within the company.

The suit seeks reinstatement for a number of minority employees that have been unfairly treated by the retailer, and back pay in the event that the employees cannot be reinstated to their former positions.

We here at The Harman Firm deplore the fact that a retailer could engage in discrimination as alleged. While normally it is individual incidents, it is even more disheartening for employees to claim a rampant and systematic pattern of discrimination against minority employees.

Check out this interesting New York Times article on racial and national origin discrimination in South Korea.- South Koreans Struggle With Race

It is rather eye opening to see that discrimination is incredibly prevalent throughout the world, but that is not stopping certain governments by tackling the problem and passing laws outlawing discrimination.

The United States has had a long history of waves of immigrants coming to live and work, and each group has generally faced resistance as they adapt to life here. It is interesting to see now how countries that have long been homogenous or isolated open up to further shifts in populations from around the world, and how they cope with such inclusion.

Signed back in 2008, the Genetic Information Non-Discrimination Act did not make much news at the time of its introduction into law. However, as genetic sequencing and identifying becomes faster, easier and cheaper for individuals to do, it is important to take a look this bill and understand its future ramifications.

The main purpose of this bill is to prevent the discrimination of individuals based on any genetic information, and on account of any potential consequences of an individuals genetic make up. For instance, if it were to be revealed through a genetic profile that an individual would be susceptible to a particular illness, the Genetic Non-Discrimination Act will protect workers from being discriminated or adversely affected based on this information.

Further, this bill bars employers from requesting genetic information profiles of workers or new employees, or making genetic testing a requirement for any job offer or duties.

The act also bars health insurance companies from creating genetic profiles of insured individuals. Further, it makes it illegal to deny an individual coverage based on any information a genetic profile may reveal- including pre-existing conditions, future likely conditions, or any other information gleaned from a genetic profile.

Thanks to the foresight of Congress in taking a stand against discrimination and exploitation based on the retrieval of genetic information, Americans will not be subjected to bias based on their genetic profile. The rise of genetic testing raises many questions as to what information is stored at the genetic level, and calls for protection until we better understand exactly how this information can and will be used.

A Brooklyn chef working at Tina's Restaurant was fired after telling his boss he needed to go to the hospital. The 36 year old father of two was let go after taking the time off to see to his illness, leaving him unemployed with very few other options.

The employee has attracted the attention of Councilwoman Gael Brewer, who has introduced legislation recently that would require employers to give full time employees paid sick time. This maneuver would help workers across the city cope with the effects of illnesses without losing their jobs. Having to pay for health care on top of losing ones job is a situation no able worker should be in.

We here at the Harman Firm believe workers should not have to risk their jobs to attain health care. We support the actions of Councilwoman Brewer in her quest to help workers cope with illness and protect their jobs in their absence.

Late last year, the Supreme Court ruled on the matter of Gross v. FBL, greatly raising the bar for proving that an individual had been the victim of age discrimination. The court deemed that the plaintiff must prove that the adverse employment effect was directly related to ones age, and not other factors, greatly narrowing the ways in which individuals can bring age discrimination suits.

This case has been widely discussed in the legal and employment worlds as they adapt to these changes in law. This, along with the Ledbetter v. Goodyear decision, which had limited plaintiffs claims for discrimination in pay based on sex, marked a Supreme Court that appeared hostile to the rights of working individuals.

Following the Ledbetter decision, Congress acted to help re-enforce the rights of individuals who had been systematically paid less that workers of different gender. And it appears that in light of this recent decision, members of Congress are working on a law that would help strengthen the rights of workers who believe they have been discriminated against based on their age.

This week, Sen. Patrick Lahey and others plan on introducing a new bill that would help work against the decision laid out in Gross v. FBL Financial. This would help to reestablish the rights of older workers who feel that they have been discriminated against in the work place.
We here at The Harman Firm are glad to see our Congress take such action in light of a Supreme Court that has been extremely hostile towards the rights of workers and have undermined the rights that people have fought long and hard to gain. With the current Obama administration, we hope to see more of this type of legislation and an affirmation of the rights of workers everywhere.

In a startling report issued in early September, the United States Department of Labor released the results of their inquiries into the use of child labor in manufacturing and other areas. The results are staggering- the report had found that child is used throughout the word to produced a number of products and goods.

According to the report, child labor is rampant in the harvesting of many agricultural products such as coffee, cotton, sugarcane and rubber, while "69 percent of child labor worldwide is in agriculture". This is a staggering proportion of children being forced to work to produce goods for our consumption.

Children are often put in much more precarious positions throughout the world, including being use to mine for gold in Burkina Faso and Peru. The report can be found here- . I encourage all of our readers to pay mind to this list and take into consideration the human costs of goods and products we so routinely ignore. While child labor may be legal abroad, we should do as much as we can do rally against such cruel practices and ensure rights for workers everywhere.

On September 2, 2009, the New York Times published an outstanding editorial concerning the Federal Government's treatment of Civil Rights- Reviving Civil Rights. Detailing the lapses in Civil Rights enforcement under President Bush and the setbacks the administration had created for equal rights and opportunity, it goes on to describe the current need for an overhaul in the US regarding Civil Rights.

While we have come a long way as a country since the 1960's Civil Rights movement, there is a persistent and nagging need to overhaul some of these laws to address new problems in our society. One such problem is vote suppression and irregularities, and the need to update the rights of prisoners as more and more individuals are incarcerated for an ever expanding list of criminal charges.

Check out the article and the recommendations, and let us know what you think about them. Are these changes necessary to protect individuals in our society? Or are we adding bloat to bills that already offer protections?

File this one under questionable employment decisions. The Hartford Courant, a local Connecticut newspaper fired its consumer affairs reporter after the individual exposed a pending investigation into Sleepy's Mattress Company. Sleepy's, one of the biggest advertisers of the Hartford Courant, is pending an investigation by the Connecticut Attorney General's office for, among other charges, selling used mattresses and bedding as new, as well as selling mattresses that were infested with bedbugs to consumers.

The journalist, George Gombossy, worked at the newspaper for over 40 years before being laid off after the allegations were documented. The paper refused to print the article, and terminated him as a result. The veteran writer is now out of a job and writing his own blog as a result of this ridiculous retaliatory behavior. This situation exposes the reality of both print journalism, and the job market as a whole. Newspapers are cutting corners everywhere, and in this case it is not surprising the Hartford Courant is siding with advertisers rather than take responsibility for the papers credibility. It's a shame when journalists are being persecuted for telling the truth and informing consumers about such matters.

Rastafarian employees of the Grand Central Partnership are now free to wear their hair as they please, after the Equal Employment Opportunity Commission filed a lawsuit on their behalf. The Rastafarian workers, many of whom had been suspended or fired for breaking the companies dress code, brought a suit against their employer alleging that their practices against long hair was discriminating against their religion. The court agreed under Title VII of the Civil Rights Act which affords employees reasonable religious accommodations if they are not disruptive, and found for the workers. This is another small victory for workers rights in challenging some of the unfair and discriminatory practices of employers.

The recent Supreme Court session has been a disastrous term for the rights of workers in America. The current Court has weakened the rights of older employees in the case of Gross v. FBL Financial services, where the Court determined that age discrimination had to be the motivating factor in pursuing an age discrimination claim, deeply undercutting the interpretation of the Age Discrimination Employment Act. Later in the term, the Court ruled on the highly controversial Ricci v. DeSteffano case, where they found against the city of New Haven, who through out a promotion test for firefighters when it would have resulted in few if any minority firefighters receiving promotion- mostly in accordance with Title VII.

These setbacks have greatly affected the ways in which employees can seek recourse and damages from the actions of their employers. This is why it is a perfect time for Congress to get to work on an overhaul of the Civil Rights Act. Similar to the Lilly Ledbetter Fair Pay Act introduced after her appeal to the Supreme Court was denied, this new act could bolster the rights of employees and undo the damage brought by the current members of the bench.

Specifically, this act could work to restore the rights of employees who believe they have been discriminated against because of their age, as well as clarify the problems of Title VII that make it difficult for local and state governments to apply equal protection under the law. As well, it could go beyond that and provide greater rights for part time and tipped workers, who are often taken advantage, and not paid fairly.
Lobby your Congressmen and women to enact real change for employees, and help fight against the challenges to workers rights.

In a puzzling split decision, the Minnesota State Supreme Court ruled 4 to 3 that religious schools were exempt from claims of discrimination brought by employees. The ruling states that the state rights barring discrimination in the work place do not protect employees whose jobs were linked to the mission of the religious institution, which includes teachers at religious schools. The justices stated that since their jobs are linked to the mission of the institution, they are free to fire their employees at will to further their mission.

This ruling is startling, given the trend of recent anti-employee laws being passed. This law essentially undermines the rights of employees working for religious institutions, even though they are often lay-people and not part of the clergy. While religious freedom is one of the most important freedoms guaranteed in our Constitution, it seems hardly appropriate to use religion as shield for discrimination based on gender, race, age or any other protected group. The Court of Minnesota should be chastised for condoning discrimination, and working to erode to rights of workers in the state.

On June 17, President Obama announced that he would extend benefits of Federal employees to same sex couples, taking a small step towards workplace equality. Specifically, Federal employees will now be able to add their same sex partners to their long term insurance policies, and can use sick days to take care of their partners and non-biological children. We applaud this decision.

While it is a small gesture, it marks a step in the right direction for inclusion of gay couples in deciding benefits, as well as advancing the equality and protection of the rights of gay workers. Currently, there is no Federal statue that prohibits individuals being discriminated against because they are gay, leaving these people vulnerable to mistreatment and persecution.

Under the Obama administration, we could hope to look forward to more of these acts that will span the gap between gays and non-gays in the workplace. While minor, it could be a sign of a major sea change in employment law, eventually leading to the much contested "Don't Ask, Don't Tell" policy discriminating against homosexuals in the military.

Most people would believe their days of being bullied and picked on would end on the playground, but startlingly more and more employees are coming forward with stories of workplace harassment and bullying. Consequently, more companies are faced with allegations of inappropriate workplace behavior that threatens morale.

Worse, is that many employers' codes of conduct and human resource guides do not proscribe solutions for this type of behavior, making it hard for bullied employees to seek recourse against the harassers. Workplace bullying can include any number of signs, including: passive-aggressiveness; nudging, pushing or shoving; character assassination; arrogance; an unfair attitude towards coworkers; coworkers who are quick to blame others for problems; or, an employee that is extremely rude and belligerent toward another. Some of this conduct is prohibited by law and some of it is not. However, none of it should be tolerated.

Bullying conditions are often exacerbated by the fact that if there is no strict policy against the behavior, bullies can take advantage of a lax policy and continue to torment individuals with much impunity. Until employers and human resource departments begin to take bullying seriously, it is likely that many more instances of bullying will go unpunished.

If you believe you are being bullied, you should immediately seek out your human resources representative or supervisor to explain your situation. Always put your complaints in writing and keep a copy for your records. Getting your workplace complaints in writing is the first step to seeking recourse for harassment and bullying. Contact an attorney if you think you are being bullied or harassed for an illegal reason, which might include your race, gender or age, among other reasons.

With a tightening labor market, employers believe "so called" background checks have garnered increasing importance, with the employer taking greater steps to ensure that the candidate for a position is a "good fit". As well, with a dearth of jobs in the marketplace, employers are finding themselves in a position to be much more discerning and selective with the few positions they have open, and the large number of applicants for each position.

The New York Law Journal recently examined the legal implications of background check practices. On the subject of criminal background, the Equal Employment Opportunity Commission ("EEOC") states that discrimination based solely upon an individual's criminal record is illegal, concluding that arrests and incarcerations affect minority populations, particularly Hispanics and African Americans, and are generally prosecuted at a rate much higher than whites. However, employment may be legitimately denied to an individual if their criminal record is related to the position. For example, refusing to hire a convicted bank robber as a bank security guard.

Another potential area of concern is for employers conducting checks of candidates financial and credit histories. Federal law prohibits terminating or discriminating against an employee on the basis of their credit statuses, or previous indebtedness. However, courts have interpreted the law to not include decisions related to hiring of employees, and has been used to justify not hiring candidates in fields relating to the fields of finance and lending. While the EEOC does not recognize debtors as a protected class like other groups, minorities tend to have higher rates of indebtedness and insolvency, which could cause disparate hiring patterns and inadvertently shape the workforce when used as a hiring criterion.

A third criteria that employers should concern themselves with when performing background checks on individuals is the nebulous idea of character, which manifests itself in a few different ways. The most recognized example of this is employers requiring a pre-employment drug screening, and enforcing drug free work places. These tests are designed to catch illegal drug users, with those taking legitimate drugs for a disability or illness exempt from discrimination based on these results. Another potential site of discrimination in conducting searches is evaluating what legal activities individuals partake in their free time, such as political activities, unions or other associations.