Articles Posted in Worker safety

Edgar Rivera, Esq. and Leah Kessler

On December 18, 2017, in Swiderski v. Urban Outfitters, Inc., Judge J. Paul Oetken of the Southern District of New York denied the majority of defendant Urban Outfitters’ motion for summary judgment. Although Judge Oetken ruled that there was insufficient evidence for a reasonable jury to find that Plaintiff Tatiana Swiderski was constructively discharged from her position as a sales associate at Urban Outfitters, he allowed her hostile work environment and retaliation claims to proceed to trial. This decision is important because it reaffirms an employer’s responsibility under the New York City Human Rights Law (NYCHRL) to take proactive measures to prevent discrimination from customers where the discriminatory conduct is previously known to the employer’s managers.

Tatiana Swiderski was hired as a sales associate at a Manhattan Urban Outfitters store in 2013.  Shortly after her hire, a male customer was caught photographing or videotaping up Ms. Swiderski’s skirt while she was on the stairs. Brian McCabe, a loss prevention agent employed by Urban Outfitters, escorted the customer out of the store and deleted all the pictures and videos of Ms. Swiderski from the customer’s phone. Mr. McCabe, however, repeatedly refused to give Ms. Swiderski the customer’s identification information so that she could file a police report. Later, an assistant store manager told Ms. Swiderski candidly that Urban Outfitters was aware of least one other customer that used to come in and regularly sit under the stairs to look up the skirts and dresses of female employees. Ms. Swiderski then went to Emily McManus, a manager, who confirmed this to be the case. Ms. Swiderski made repeated complaints to Ms. McManus about how both Urban Outfitters and Mr. McCabe had handled the incident, and, after Urban Outfitters reluctantly gave her the customer’s contact information, she filed a police report against the customer.

Yarelyn Mena  and Edgar M. Rivera, Esq.

On March 23, 2016, North Carolina Governor Pat McCrory signed in to law the Public Facilities Privacy of Security Act (or H.B. 2), which bans transgender people from using the public bathroom that corresponds to their gender identity, overturns Charlotte, North Carolina’s anti-LGBT discrimination law, prevents other localities from passing anti-discrimination laws, and prevents cities from raising their minimum wages higher than that of the state. H.B. 2 was passed days before Transgender Day of Visibility, a day that recognizes the accomplishments of the transgender community. Although there were many recent victories for the LGBT community, H.B. 2 is an important reminder that there is still a lot of work to be done before LGBT individuals have the same rights everyone enjoys.

On February 22, 2016, the city of Charlotte, North Carolina passed a law prohibiting discrimination against gay, lesbian, bisexual and transgender people in the workplace. The most controversial part of the law was that it would allow transgendered people to use the bathroom that corresponds with their gender identity. Opponents of the bill nicknamed it the “bathroom bill” and argue that it made bathrooms unsafe for women and children. University of North Carolina at Greensboro, Payton McGarry, a transgender student, is one of the Plaintiff’s in a lawsuit challenging H.B. 2, who has been assaulted and ridiculed for using the bathroom that comports with his gender identity at his university, experiences which will only grow worse with H.B. 2 in place. H.B. 2 abrogated that law.

Jennifer Melendez

Earlier this year, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) fined Case Farms Processing (Case Farms) and Callaghan and Callaghan (Cal-Clean) for exposing workers to possible amputations, falls, electrical risks and other serious hazards. The companies’ failure to adhere to safety standards was so severe that it resulted in tragic injuries to two of its employees. OSHA’s inspections of Cal-Clean and Case Farms found that on April 7, 2015, a 17-year-old Cal-Clean worker suffered an accident resulting in the amputation of his lower-left leg while cleaning a liver-giblet chiller machine. Due to his injury, he could not return to work and Cal-Clean fired him shortly thereafter. OSHA also fined Cal-Clean for failing to report the amputation to OSHA within 24 hours after the accident. Dr. David Michaels, assistant Secretary of Labor for OSHA stated:

A teenager’s life has been forever altered because of the devastating leg injury just weeks after starting his job. How many injuries will it take before Case Farms stops exposing workers to dangerous machinery parts? OSHA will continue to inspect, monitor and penalize this company until it makes necessary improvements. They need to protect their workers, and they need to do it now.

Yarelyn Mena and Edgar M. Rivera, Esq.

In Tiffany Jones v. Family Health Centers of Baltimore, Inc., the United States District Court for the district of Maryland held that under Title VII of the Civil Rights Act of 1964, a single incident of unwanted sexual touching may create a sexually hostile work environment.

In Jones, Ricardo Dajani, a male CFO of Family Health Centers of Baltimore, Inc. (Family Health) grabbed employee Tiffany Jones by the waist and pushed his genitals against her buttocks after locking the office door. Ms. Jones immediately reported the incident to her supervisor, and the next day attempted twice to inform Family Health’s CEO, who was “unavailable.” Ms. Jones then left work early and refused to return. Upper management requested a meeting with Ms. Jones to discuss her allegations, but the meeting never took place.  According to Family Health, Ms. Jones “refused to return to work and provide any details.” Shortly after, Ms. Jones filed a complaint with the Equal Employment Opportunity Commission (EEOC). This event was not the first instance of harassment Ms. Jones suffered by Mr. Dajani. Several incidents occurred before, including Mr. Dajani’s making frequent comments about “taking [Ms. Jones] away,” and blocking her path in the office hallways. Mr. Dajani denied all accusations.

Yarelyn Mena and Owen H. Laird

When the Supreme Court of the United States affirmed the right for same-sex couples to marry, the LGBT community won a long and hard-fought battle for marriage equality. The Human Rights Coalition (HRC), one of America’s largest civil rights organizations committed to ensuring legal rights for the LGBT community, continues the struggle for LGBT rights by supporting the Employment Non-Discrimination Act (ENDA), legislation aimed at protecting the LGBT community from discrimination in the workplace. ENDA would make it illegal for employers to discriminate against potential or current employees based on their sexual orientation or identity.

ENDA resembles Title VII of the Civil Rights Act of 1964 in its purpose to prevent and eradicate discrimination of protected classes in the workplace. The HRC supports passing ENDA because there “is no federal law that consistently protects LGBT individuals from employment discrimination; there are no state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 32 states that do so on gender identity.” Currently, in the states that do not offer protection to LGBT workers, employees and prospective employees face routine and often legal discrimination because of their sexual orientation or gender identity. ENDA will provide LGBT workers with nationwide protection from employment discrimination, filling in the gaps left by state laws. Protection against sexual orientation and gender identity based discrimination is already widespread. According to a report by the HRC, 8 out of 10 voters already believe that discrimination based on sexual orientation and gender identity was illegal, showing that ENDA would provide the legal framework for rights that most Americans already believe exist.

Yarelyn Mena

The Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) has brought gender identity as it pertains to restrooms at the workplace at the center of employment law discourse. Under OSHA’s Sanitation Standard, employers are required to provide their employees with toilet facilities. Restrooms are a factor of the workplace that has gone unnoticed by most workers as a simple, must-have feature. The dichotomy of male and female restrooms that has been the default, has been revised by OSHA to protect the rights of employees who identify with a gender identity that does not socially conform with their sex.

Transgendered people fall under this characteristic as people whose “internal gender identity is different from the sex they were assigned at birth.” Researchers at the Williams Institute at the University of California- Los Angeles estimated that there are about 700,000 transgender adults in the United States. Knowing which bathroom to use poses a difficult question for transgender employees who are afraid of harassment from other employees who see them enter a different restroom from their gender identity. This situation is maximized when a transgender employee is in the process of transitioning from living as the gender they were born with, to the gender they identify with, while employed. Often times transitioning employees are ridiculed by others in the workplace who do not understand the process. Making this process and daily life for transgender employees an easy, fair process can begin with restrooms.

Consolidating 19 individual cases that have been filed nationwide, the Equal Employment Opportunity Commission initiated the lawsuit EEOC v. FedEx Ground Package System, Inc. on September 30, 2014, on behalf of “a significant number” of deaf and hard-of-hearing employees and job applicants. The charging parties allege that the company has consistently and intentionally failed to provide reasonable accommodations to these employees, in violation of the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991.

In its complaint, the Commission argues that FedEx has failed to provide accommodations to hearing impaired Package Handlers “at all points in the employment life cycle,” which includes (i) failing to provide communications-based accommodations such as American Sign Language (ASL) interpretation during new employee orientation, training, and mandatory meetings, (ii) ignoring multiple requests for such accommodation, (iii) failing to provide modified equipment such as vibrating scanners to enable hearing impaired employees to meet production quotas with the same level of effort as their co-workers, (iv) adding flashing lights to moving equipment for safety, and (vi) failing to initiate an interactive process regarding the need for these kinds of accommodations.

The ADA’s implications for this situation seem clear: the company must “engage in good faith in an interactive process to identify effective reasonable accommodations” and then provide such accommodations unless it can show that doing so would not be an “undue hardship.” After studying nineteen different facilities, the Commission concluded that FedEx has “engaged in widespread abandonment of its legal duties to engage in good faith in the interactive process with deaf and hard-of-hearing Package Handlers and deaf and hard-of-hearing applicants to the Package Handler Position and to provide effective reasonable accommodation to these individuals.” Despite numerous complaints by hearing impaired Package Handlers, and despite they allege, the company has also failed to engage these employees in an interactive process. Thirty-two examples of such failures are cited in the complaint itself.

On September 18, 2014, the Equal Employment Opportunity Commission (EEOC) filed a complaint in the case Equal Employment Opportunity Commission v. GAF Materials Corporation (GAF). GAF is accused of discriminating against employee Irvin Carter by denying him the opportunity to retain his job by “bumping” a less-senior employee and taking his or her job, as allowed under the company’s collective bargaining agreement, during a layoff. The EEOC alleges that GAF denied Carter this opportunity based on incorrect and extremely outdated information about his ability to do a different job given his well-documented disability.

Mr. Carter had been injured while working at GAF in 2003, resulting in the amputation of his right hand below the wrist. The loss of his hand substantially limited his ability to perform manual tasks at first; most relevantly, he could only lift 5 pounds with his prosthesis and 11 pounds with both arms. These limitations rendered him unable to perform his old job, but since he had seniority over many other workers he was transferred to a different job that he could perform.

Meanwhile, he continued to go through physical rehabilitation and therapy, and he eventually became able to lift 90 pounds, which is the limit for his prosthesis. Meanwhile, the company went through a succession of layoffs. During the first layoff, in 2012, Carter bumped a less-senior worker to obtain a forklift driver position. Then, during a second layoff later in 2012, Carter was himself bumped from this position by a more senior co-worker. He still had seniority over many other employees, so he sought to bump a different employee and claim one of the many other positions he was qualified to perform. However, the company then decided that he was not physically qualified for any other available positions because of physical limitations and effectively terminated his employment.

The National Labor Relations Act (NLRA) creates the framework for how employers and unions interact. What many employees don’t know is that the NLRA also protects the majority of non-union workers as well. Under the NLRA, employees – even those in a non-union workplace – are protected against employer retaliation for protected workplace activities. This means that if a group of employees make job-related complaints (e.g. workplace conditions, the terms of their employment, supervisor misconduct, safety issues, or other job related matters) and then are retaliated against for doing so, they may be able to seek redress under the NLRA.

Section 7 of the NLRA protects the right to engage in “concerted activities” for “mutual aid or protection.” In the union setting, this means that employers cannot fire employees for trying to organize or establish a union. While Section 7 may not seem to protect a wide variety of workplace activities, in fact, protected activities under Section 7 go well beyond unions.

Concerted activities protected by Section 7 include whenever employees discuss their employment situation, or act together to improve their situation. This includes, among many other scenarios:

On July 9, 2014 a federal judge for the Eastern District of Pennsylvania gave preliminary approval to a $675 million settlement in the case In re: National Football League Players’ Concussion Injury Litigation. The NFL has agreed to the settlement, under which all valid claims (by retired NFL players) will be paid in full for 65 years,” with “no cap on the amount of funds available to pay…Monetary Awards.” In addition to this $675 million, the NFL Parties have also agreed to pay $112.5 million in attorneys’ fees and costs.

The class of plaintiffs consists of (i) Retired NFL Football Players, including American Football League, World League of American Football, NFL Europe League, and NFL Europa League players; (ii) authorized representatives, ordered by a court or other official of competent jurisdiction, of deceased or legally incapacitated or incompetent Retired NFL Football Players; and (iii) close family members of Retired NFL Football Players or any other persons who properly assert, under applicable state law, the right to sue by virtue of their relationship with a Retired NFL Football Player. Based on the records of the NFL Parties, there are more than 20,000 Settlement Class Members.

Each member of the settlement class who registers and does not opt out will undergo baseline neuropsychological and neurological examination to determine whether they are currently suffering from impairment serious enough for compensation. $75 million from the settlement is set aside to pay for these examinations, collectively labeled the “Baseline Assessment Program” (BAP). The Court ordered that a notice is to be sent to all potential class members with information and registration materials, all of which can also be found on the dedicated website www.nflconcussionsettlement.com.