New York Employment Attorneys Blog

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 5 to 4 decision, the Supreme Court ruled on the controversial Ricci v.
DeStefano case. The case, which was brought by a group of white firefighters
in New Haven, Connecticut claiming they were denied promotions when the city
of New Haven threw out the promotion exam. Lower courts found in favor of
New Haven in throwing out the results of the exam, and against the white
firefighters.

However, the Supreme Court reversed the findings of lower courts. Justice
Kennedy wrote for the majority, and was joined by Justices Thomas, Roberts,
Alito and Scalia. Kennedy stated unequivocally that ³the city rejected the
test results solely because the higher scoring candidates were white,² and
that ³Fear of litigation alone cannot justify an employer¹s reliance on race
to the detriment of individuals who passed the examinations and qualified
for promotions.²

The ruling will make it difficult for employers, mainly those that require
tests or other examinations to determine eligibility, to throw out results
if the exam shows a disparate impact on a minority. This includes many
government entities that employ civil servants, and often use exams for
promotion.

In the dissenting opinion, Justice Ginsberg minced no words in showing her
disdain for this opinion, and standing behind the black and Hispanic
firefighters. The city of New Haven has a high percentage of blacks and
Hispanics, but the make up of the city's fire department does not coincide
with these proportions, and highlights problems associated with the
disparate impact clause of Title VII.

This case also draws attention to Judge Sotamayor¹s ruling in the Appeals
Court. She had found in favor of the city, which had thrown out the test
results when they were notified of their potential liability. This case was
closely watched to see if the Court would uphold Sotamayor¹s ruling.

The decision cuts a hole in Title VII. The issue for the employer under
Title VII is not the fear of being sued but rather the disparate or
discriminatory impact the employers' decisions (including mandatory tests)
have on the employee.

Shame on the Supreme Court for a leap backwards!

Just weeks after President Obama announced the nomination of Judge Sonya Sotamayor for the soon to be vacant seat on the Supreme Court, news organizations begin to tear through her records and pick apart statements made by the Appellate Court Judge. Of the comments being made, many of those from the Republican side of the aisle have unearthed a groundswell of unease at Sotamayor's record in dealing with race-related issues. Much contention has come from a quote by Sotamayor, often taken out of context, stating that she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life". Many have taken this statement, which was meant to describe the ways in which Judge's approach questions of discrimination, as a sign that Sotyamayor would be unfairly biased against non-minorities, with some like Newt Gingrich in the Republican Party calling Sotamayor a racist.

In the heat of this debate over race and politics, there has been relatively little attention paid to the cases that she has decided on. One of the most notable cases relating to employment and race is one that has been touched upon in this blog earlier, Ricci v. Desteffano. In this case, a promotion exam given to New Haven Connecticut firefighters was thrown out because it resulted in no minority applicants being promoted. The white firefighters who would have qualified for promotions sued, and the case now sits in the Supreme Court. As an Appeals Court Judge, Sotamayor agreed with the lower courts finding that to accept the results would have violated Title VII of the Civil Rights Act, which provides for equal treatment before the law. Now in the Supreme Court where Sotamayor hopes to ascend, the case has drawn much attention for the cries of "so called" reverse racism and the difficulty faced in applying the Civil Rights Act.

Again, many on the right have taken her deicision in the lower courts of Ricci v. Desteffano as a sign that she would use her own personal experience to influence her decisions in race related cases. However, a Washington Post article takes a more exhaustive look at her bench record, and finds just the opposite. Tom Goldstein, quoted in the article states that "Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times. The remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous". In this light, however we see that Sotamayor isn't as prone to use her minority background as a reason to rubber stamp any discrimination cases that come before her.

On the issue of disability discrimination, Sotomayor has decided on two prominent cases. The first case involves a law student who had learning and reading disabilities. The student had asked for an accomodation while taking the Bar exam, where Sotamayor had ruled for the student stating that she had a genuine disability. She stated that while she may have had excellent test scores and succeeded in the face of her disability, she was entitled to accomodation unlike other applications of the ADA where individuals who can correct there disability are not always accomodated. In another ruling, Sotomayor found for a group of truck drivers who said they had been unfairly discriminated against since they were required to take prescription medication. Sotomayor claims that these workers were "substantially limited in the major life activity of working", more than just simply unable to drive trucks as the lower courts had found.

These rulings paint an interesting portrait of Sotomayor and her dealings with employment related issues, many of which she will likely rule on if she ascends to the Supreme Court. In particular, the Ricci v. DeSteffano case will be interesting to watch if she sits on the bench based on her prior involvement and ruling on the it.