New York Employment Attorneys Blog

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.