New York Employment Attorneys Blog

The American Civil Liberties Union ("ACLU") brought suit against the Chesterfield School District on behalf of one of its students for unconstitutionally promoting religion. Specifically, the District held a prayer rally at a school assembly and prayers at official events.

The ACLU acted on behalf of a middle-school atheist student who did not agree with the Christian activities, such as the evangelical assembly, at school. Moreover, this student was pressured into attending religious events - for instance he was given the choice of attending a religious concert or being sent to the suspension-room. Such treatment hinders students' freedom of religion and may even be considered religious discrimination.

The ACLU and the Chesterfield School District finally agreed to settle the suit. In the consent decree and order, the Chesterfield County schools admitted they had violated the First Amendment of the U.S. Constitution which mandates separation of church and state. The official outcome of the case prohibits school officials from promoting religion and encouraging prayers at events and was made final on Thursday, January 26, 2012, by a federal judge.

Follow the story as it develops here.

Teresa R. Wagner, a former student at the University of Iowa College of Law and a former teacher at the George Mason University School of Law, was refused employment at the University of Iowa College of Law. Ms. Wagner is a conservative Republican activist and believes her political beliefs are the cause for this refusal. Consequently, she has sued the University of Iowa for discrimination based on political motivation.

In December 2011, the Court of Appeals for the Eighth Circuit decided that Ms. Wagner's case should go to trial, as there was sufficient evidence suggesting that the University's refusal to employ Ms. Wagner was based on Ms. Wagner's political beliefs. This preliminary victory for the application of First Amendment rights related to political beliefs and association to academic hiring might enable professors who have been discriminated against because of their political beliefs to take action and affirm their rights.

Follow the story as it develops here.

Sharon Bialek is the first woman to come forward publicly with allegations of sexual harassment against Herman Cain. On November 7, 2011, she came forward to say that Mr. Cain made unwanted and rough physical advances on her 14 years ago when she sought his assistance in getting employment.

Ms. Bialek is now the forth woman known to have made accusations of sexual harassment against Mr. Cain. Cain's representatives have denied the accusations made by Ms. Bialek. During a press conference, Ms. Bialek detailed her encounter with Mr. Cain.

She described that Mr. Cain "ran his hand up her skirt, reached for her genitals and pulled her head towards his crotch." When Ms. Bialek objected and referenced to the fact that she had a boyfriend and stated" What are you doing?...this isn't what I came here for." Mr. Cain's response was "You want a job, right?"

Cain's camp released the following statement: "the allegations were coming from a woman with a long history of severe financial difficulties, including personal bankruptcy, [and that] there is no record, nor even a complaint filed on the alleged incident."

While many claims of sexual harassment go unrecorded and don't make it into a court case, it seems odd that Cain's camp would make such a public statement attacking the character of Ms. Bialek and not referencing the particular incident. Cain's representative's even go as far as to attack Ms. Bialek's choice of lawyer, as she is being represented by Gloria Allred who is known for representing various women in huge scandal cases.

If you frequently read the newspaper or if you follow the Silicon Valley's activities, then you have probably heard of Carol Bartz. Ms. Bartz was recently terminated from her position as CEO of Yahoo! over the phone.

Ms. Bartz was one of the only women to hold such a prestigious and high-level position in the Internet and Computer field. She is well know for her "salty language," and her fans were not disappointed when she called the board members that fired her over the phone a bunch of "doofuses" who "f---- me over."

If this kind of language is considered common for a man, it seems that people are shocked when a woman utilizes such language. Her comments were judged so unusual by the Wall Street Journal that the newspaper decided to publish an amusing compilation of "Carol Bartz's Best Quotes."

So, is a woman socially allowed to curse at work? According to Deborah Tanne, a linguistics Professor at Georgetown University, "it stands out because it is not expected." Ms. Bartz appears to be a forerunner, moving toward Gender Equality in the Workplace, specifically regarding the right to curse at work.

But this particular case asks a broader question of the women in the workplace. It is already shocking that women are generally paid less than men for the same position; but also that their work is not perceived in the same way in business and they are expected to have different behavior even more refined, than men at work. It seems that women are not socially allowed to show their anger as much as men in the workplace, as Ms. Bartz's case shows.

The road for women to achieve sex equality in the workplace seems to be still a long one.

The recent resignations of two high-ranking black administrators at Columbia have led some professors to question President Lee C. Bollinger's leadership. Last June, the University's provost, Claude M. Steele, resigned. His resignation was followed by the undergraduate dean, Michele M. Moody-Adams, last week. They were the first African-Americans to hold their respective positions at Columbia.

According to reporter Alan Schwarz from the New York Times, Fredrick C. Harris, a professor of political science, wrote to Mr. Bollinger explaining that these recent departures have "shaken (his) confidence - as well as the confidence of many others at Columbia - in the ability of Columbia to maintain diverse leadership at the top."

June Cross, an associate professor at the University's Graduate School of Journalism, was quoted as saying "I'm not saying race is the issue, but it is the subtext."

These criticisms almost seem inconsistent with Mr. Bollinger's reputation and background, considering he had been advocating for affirmative action while he was President of the University of Michigan. Mr. Bollinger was involved in two well known U.S. Supreme Court cases, Grutter v. Bollinger and Gratz v. Bollinger, where he defended - with success - affirmative action in the school's recruitment process.

These new problems bring back to the table some of Mr. Bollinger's old controversies. In particular, Mr. Bollinger was heavily criticized back in 2007 when he decided to invite Iranian President Mahmoud Ahmadinejad to Columbia. The New York Times also discusses that after interviewing more than a dozen Columbia faculty members, it was apparent that their dissatisfaction with Mr. Bollinger's policies was growing. Notably, Mr. Bollinger is criticized for shrinking the role of the undergraduate college to expand Columbia's research activities.

Mr. Bollinger acknowledged that there was criticism but denied that race was an issue at Columbia, expressing that he intends to meet with faculty members to address the issue. Many professors support President Bollinger nonetheless, saying that 15 percent of Columbia's freshmen last year were black, which is the largest percentage of any of the top 30 universities in the U.S. according to the Journal of Blacks in Higher Education.

Read more at the New York Times.

On Wednesday, Arizona Governor Jan Brewer (R-AZ) asked the U.S. Supreme Court to overturn a lower court's injunction that bars the enforcement of much of the state's controversial SB 1070 immigration law. Arizona's legal position got a boost in May when the Supreme Court, in a 5-3 decision, upheld a state employment law that would take away the business licenses of employers who knowingly hired illegal workers.

When the statute passed last year, Arizona lawmakers directed police to check the immigration status of people they lawfully stopped and suspected of being in the country illegally. The Obama administration took the case to Court and argued that the federal government has exclusive control over immigration enforcement.

On July 28, 2010, U.S. District Court Judge Susan Bolton blocked enforcement of several parts of the statute. The 9th Circuit Court of Appeals upheld Bolton's ruling last April, finding that Congress "explicitly required that in enforcing federal immigration law, state and local officers 'shall' be directed by the Attorney General."

The Petition for Writ of Certiorari claims that the 9th Circuit ruling affirms "that state are completely foreclosed from enforcing federal law or from enacting state laws that prohibit conduct made unlawful by Congress". For Governor Brewer, the 9th Circuit ruling created an express and acknowledged circuit split over the preemptive force of the federal immigration laws because the 10th Circuit views those laws as affirmatively encouraging cooperative enforcement by states.

If the Justices decide to take up the case, they would hear arguments in the winter and probably hand down a ruling in late spring, as the presidential race gets underway.

The City of New York and its Fire Department are being accused of discriminating against black and hispanics during the hiring examination to apply to become firefighters. In 2010, the FDNY was ordered by Courts to change the recruitment policy to allow more blacks and hispanics to join the FDNY as they only represent 9% of firefighters in New York City today.

As of last Monday, the case has been set to go to trial before Federal Courts in Brooklyn. The Plaintiffs were allegedly discriminated against as applicants. The Judge already ruled that the tests did, in fact, discriminate against blacks and hispanics but City officials and its Department of Justice dispute that they were not doing enough before the trial to be fair in hiring practices.

"In order to be a firefighter, one does not need to know the history of the department and nor does one need to be a volunteer firefighter" said John Coombs, president of the Vulcan Society, a fraternal black association.

The first phase of the trial, which involves determining the discrimination, will likely last a week. Then, the second two phases of the trial, which involve damages to Plaintiffs, will likely last a week each.

The Fire Department just unveiled last July a new million-dollar ad campaign aimed at increasing the minority applicant pool for a newly designed entrance exam. This method seems to be working: the FDNY reported that there is a three-fold rise in black applicants this year. According to the New York Post, 640 black candidates have signed up for the test, compared to 184 in 2007 when the test was last given. The Post also says about three times as many white people have also applied.

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.

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.

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 recent and divided decision, the Supreme Court said that there is no automatic right to counsel for people charged with civil contempt for failing to pay child support.

Michael D. Turner, the Plaintiff from South Carolina, was held in civil contempt and jailed for as much as a year for not paying child support. He argued that he was too poor to pay and that a lawyer could have helped him avoid being jailed.

Yet, in previous cases, Courts have ruled that poor people facing jail for crimes must be provided with a lawyer. Why was it any different in the present case? These decisions were rooted in the Sixth Amendment, only applicable to criminal proceedings and not to civil cases.