New York Employment Attorneys Blog

20 years ago, sexual harassment in the workplace was brushed under the table by many, often even by the victims themselves who felt they had no recourse through their jobs or even Courts to stop the harassment.

Today things are much different, thanks to the actions in large part of Anita Hill. Twenty years ago, Ms. Hill testified in front of the Senate Judiciary Committee, which at that time was comprised of only men, speaking out against Supreme Court-nominee Clarence Thomas. Ms. Hill testified about the decade-long sexual harassment and abuse she had endured while working under Mr. Thomas at the Equal Employment Opportunity Commission, which Commission ironically enough is the very government body which seeks to vindicates rights of employees who have been mistreated in their jobs in a variety of manners. In that year alone, the E.E.O.C. saw a 50 percent increase in the number of charges filed by employees claiming sexual harassment or abuse.

Although social awareness of sexual harassment has come a long way, it still has a long way to go. While many employers now offer classes regarding how to deal with sexual harassment in the workplace or other types of discrimination, it often does not prevent sexual harassment from occurring entirely.

The Harman Firm is dedicated to advocating for the rights of victims of sexual harassment in the workplace. Do you feel you are the victim of sexual harassment? Call today to speak with an attorney about your rights.

Today, Wednesday October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553. The case concerns the scope of protection for parochial school teachers from discrimination in their religious-based workplace.

The Supreme Court has never explicitly held whether there is a "ministerial exception" implicit in the religious clause of the First Amendment, thereby protecting religious institutions' rights to hire and fire clergy without being constrained by employment discrimination laws. The twelve courts of appeals that have heard similar cases have held that this exception does exist and, at a minimum, applies to pastors, rabbis, and priests. The outcome of this case will determine whether parochial school teachers are considered "ministers," therefore shielding the religious organizations from the confines of employment discrimination laws or whether they should be considered like any other employee under these laws.

So, should Churches fall outside of the parameters of employment laws and not have to answer for potential infractions against employees? Follow the outcome of the case.

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.

One of the United State's largest department stores, Dillards, has recently come under fire with charges of race discrimination. One employee, Shontel Mayfield, was terminated under the pretext of "excessive absenteeism" during a mandatory evacuation for Hurricane Ike, which pretex Ms. Mayfield says was race discrimination.

In light of the copious amounts of damaging evidence against Dillard's, the EEOC is seeking "permanent injunction prohibiting Dillard's from engaging in further retaliation against any employee." Ms. Mayfield is also seeking compensatory and punitive damages as a result of her wrongful termination.

Following a series of court decisions regarding the legality of the US Military's "Don't Ask, Don't Tell" policies for gay servicemen and women, the Pentagon has backtracked and has begun to allow openly gay recruits into the service.

Yesterday afternoon, a number of individuals came forward to enlist in the US Military following this decision, marking a historic shift in the military's policies towards openly gay individuals. Previously, openly gay individuals serving could and have been court martialed and expelled from the military for revealing that they were gay.

This is a huge victory for civil rights, and Americans wishing to serve their country. "Don't Ask, Don't Tell" has been one of the most prominent, government sanctioned cases of employment discrimination in history. Countless talented and proud American's have been removed from the Army for no other reason than they were gay. In a time when the country is fighting two wars overseas, the Army has no justification for enforcing such discriminatory and antiquated policies.

While the development is certainly newsworthy, recruits are cautioned that the pending appeal on DADT may be granted, and that the policy may return if the appeal is successful. In the meantime, gay American's that wish to serve their country may do so with less fear that they will be removed as a result of their sexual preference. We call upon President Obama to fully overturn DADT and intervene in the Justice Department's pending appeal.

A New York based electronic store, B&H, is accused by four employees of gender discrimination after the employees sought positions as salespeople and were all denied. The three former workers and one current employee claim that B&H refuses to have female salespeople on the floor, relegating them to other positions and only promoting men.

The suit claims that when the lead plaintiff declared her interest in a sales position at B&H, and was rebuffed by other employees saying that the company does not hire women for those positions.

The store had recently paid warehouse workers over $4 million dollars in a settlement stemming from a suit over discrimination and failure to promote. The popular electronic store seems to have numerous problems concerning equal employment opportunities and civil rights.

Have any of you been to B&H and seen a female salesperson?

In a resounding victory for equal rights activists in America, Chai R. Feldblum has been nominated for the position of EEOC Commissioner. President Obama nominated the Georgetown Law professor to sit on the commission given her diverse and unique experience in working with equal rights issues.

Feldblum is a noted gay activist, heading up programs including the American Civil Liberty Union's AIDS project. Most notably, she had a role in drafting the American's With Disabilities Act of 1990.

The EEOC is led by 5 commissioners, which oversee the operation of the organization. The addition of Feldblum is a step in the right direction for the Obama administration, which had come under fire recently for its distancing itself from the gay rights community. With Feldblum acting as a commissioner, gay rights activists can hope to see that further advancement will be made towards eradicating work place harassment.

Currently, few states and municipalities offer the same sorts of protections afforded to harassment based on gender or nationality. Hopefully, with the Obama administration and Feldblum we can one day ensure that no worker will be harassed based on their sexual orientation.

President Obama last week has announced that he would continue the practice of using the E-verify system as a means to curb illegal immigrants working within this country. The program, which was established under President Bush, is an electronic database system that was intended to verify an individuals citizenship status for employers to ensure that they are hiring legal workers. However, the E-verify system is extremely flawed, relying on incorrect, incomplete and flawed information. The system has been responsible for many false positives, where a worker who is a legal citizen, cannot be verified within the system and in turn lose their job despite their actual standing. The continuation of this system is incredibly disheartening and disappointing coming from President Obama. This continuation of Bush-era policies will only hurt workers, legal and illegal and do more damage to the economy as money is poured into a broken system, while keeping individuals out of work.

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.

Many employees feel that they have been discriminated against, but are unsure how to address these work place violations. An employee should always begin by making an internal complaint by informing a supervisor, or a human resource employee if that is possible. After a perceived discrimination has occurred, an employee should consider filing a formal charge with the Equal Employment Opportunity Commission. The EEOC will be able to advise you as to the nature and validity of the complaint, while also issuing "right to sue" letters which authorizes the employee to file a lawsuit in Federal Court.

Before filing a formal charge, an intake survey must be completed. This survey determines if the EEOC has grounds to move forward with your claim, or if it is the most appropriate agency. This form can be found here. These forms can also be submitted by phone, or by going to your local EEOC office. A listing of local offices can be found online here.

When filling out the intake survey, you may need a few documents on hand in order to complete it-

· The complaining party's name, address, and telephone number;

· The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known;

· A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated); and

· The date(s) of the alleged violation(s).

There are also important deadlines to make to ensure that you may go forward with your claims:

· A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.

· This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.

· These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

This process may be confusing, but should not deter you from pursuing your legal rights in the face of discrimination. It is best to file these claims, as well as contact an employment attorney as soon as an act of discrimination occurs.