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.

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 Ninth Circuit Court of Appeals and the Supreme Court appear to be at odds in their ideologies and concepts of judicial protocol. The Ninth Circuit, which has the largest jurisdiction of any federal appeals Court, covers nine Western states, including California, and is believed to be very liberal.

According to the San Francisco Chronicle, the Supreme Court reversed or vacated 19 of the 26 decisions it looked at from the Ninth Circuit this judicial term. In all, the Ninth Circuit provided 30% of the cases the Supreme Court chose to hear.

The Supreme Court sent a lot of "piques" to the Ninth Circuit and particularly to Judge Stephen Reinhardt, who is seen by analysts as one of the main targets of the justices. For example, in restoring Steven Jackson's conviction for raping a 72-year-old-woman, the high court called the Ninth Circuit's decision "as inexplicable as it is unexplained."

Reinhardt said he did not feel personally reprimanded because the justices often employ strong language. "It would be easy not to get reversed if you just tried to guess what five of nine were going to say about the case," he said. "If you follow the way it is, before they change it, you're going to get reversed."

According to Barry McDonald, a constitutional law professor at Pepperdine University, the Ninth Circuit is being watched and monitored closely by the Supreme Court because it is largely democratic, with 59% of the judges having been appointed by democratic presidents. "The Supreme Court has five justices with a conservative bent, so it's not surprising that the value-laden rulings from the Ninth Circuit often clash with the conservative majority of the Supreme Court" said McDonald.

But because of its size, the Ninth Circuit also provides the Supreme Court with a lot of cases and a wide range of issues. The region the Ninth Circuit has jurisdiction over is very diverse in terms of immigration issues, inmates' habeas corpus petitions, environmental disputes, and employment law issues.

This contentious relationship might give a new argument to those who wish to split the Ninth Circuit into two different circuits. This idea was brought before Congress for the first time in 1993. In March 2007, Justices Anthony Kennedy and Clarence Tomas testified before the House Appropriations Subcommittee and the consensus among the justices of the Supreme Court was that the Ninth Circuit was too large and should be split.

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.

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.