Category Archives: Employment Discrimination

Employers Be On Alert: Employment Retaliation Claims Are At an All-Time High

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Employers be on alert: employment retaliation claims are at an all-time high.

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in the past year reached the lowest level since 2007, based on published statistics from the EEOC. Retaliation charges, on the other hand, are at their highest percentage ever of claims filed ever.

The EEOC’s Strategic Enforcement Plan for fiscal years 2013-2016 lists retaliation issues as one of six areas of priority for the agency. The EEOC describes this priority as “targeting policies and practices which discourage or prohibit individuals from exercising their rights under the employment discrimination statutes or that impede EEOC’s enforcement efforts.”

The 2014 statistics, and the priority placed on EEOC retaliation enforcement, are a significant reminder that employers should take the necessary steps to minimize the chance of a retaliation claim even when the underlying discrimination claim is not meritorious. Employers should make sure to consult a knowledgeable employment attorney to ensure their employment policies are up to date. Where there is an active discrimination claim against an employer, there are many acts which if taken, could constitute retaliation. In such circumstances, is important that the that an employer seek counsel before taking action.

Pregnancy Discrimination Takes Center Stage at Supreme Court

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The Supreme Court will decide whether UPS violated the Pregnancy Discrimination Act (PDA) when it refused to provide a temporary light duty assignment to Peggy Young when she was pregnant 7 years ago before giving birth to her daughter, Triniti. The assignment would have allowed Young to work but avoid lifting heavy packages, as her physician had ordered. The issue is whether UPS violated the law by its policy of providing temporary light duty only to employees who had on-the-job injuries, were disabled under the Americans with Disabilities Act, or lost their federal driver certification.

It is well-settled that drawing a distinction between pregnant and nonpregnant employees in the workplace is generally unlawful, unless there is a legitimate business reason to justify the distinction. In 1978, Congress passed the PDA in response to the Supreme Court ruling that workplace rules that excluded pregnant workers from disability benefits and insurance coverage were not sex discrimination under Title VII of the Civil Rights Act of 1964. In this case UPS argues that unless Young can show that it intentionally discriminated against her, she has no case. Young contends that UPS “told me basically to go home and come back when I was no longer pregnant.” Young is now 42 and it has taken 7 years to get before the Court.

The Obama administration and 120 Democrats in Congress have submitted a brief supporting Young’s position. Moreover, the EEOC has updated guidance to employers to clarify that they should accommodate workers like Young. Likewise, UPS has since changed its policy so that pregnant employees are eligible for the light duty assignment.

Nonetheless, the Court’s decision is expected to have far-reaching impact in workforces across the nation as 75% of women entering the workforce today will become pregnant at least once while employed, and many will be forced to work throughout their pregnancies, or face possible termination during their pregnancies or upon their return. Stay tuned for the decision.

For workplace issues, such as pregnancy, sex discrimination, light duty or leave policies, contact the Gilbert Law Group at 631.630.0100.

N.Y. Mets Deny Pregnancy and Marital Status Discrimination

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N.Y. Mets chief operating officer Jeff Wilpon has denied discriminating against and eventually firing a former female senior executive based on her pregnancy and marital status, specifically, for having a baby out of wedlock. In a lawsuit filed in Federal Court in Brooklyn, New York, Wilpon is quoted as saying during a discussion of e-cigarette ads, “I am as morally opposed to putting an e-cigarette sign in my ballpark as I am to Leigh [Castergine] having this baby without being married.” Wilpon is also alleged to have made fun of Castergine by pretending to look for an engagement ring on her finger at meetings, and trashed her to colleagues by saying that “people would respect her more if she was married.” The lawsuit seeks monetary damages for discrimination on the basis of sex, pregnancy and marital status. A Major League Baseball source said the league was aware of the suit and considered it a team matter.

The suit alleged Wilpon told Castergine, who earned a six figure salary, to tell her boyfriend “that when she gets a ring she will make more money and get a bigger bonus.” Castergine gave birth in March 2014 and returned to work in June 2014, but was allegedly urged by other executives to quit.

In August 2014, she claimed that the Mets raised issues about her job performance but offered a severance package if she would agree to not sue or say negative things about the team and Wilpon. Castergine also claims that she was fired August 26, 2014, three minutes after her lawyer sent an email to the team claiming that she was subjected to work-related discrimination. In court papers, however, the Mets asserted that she was fired before they received the email and that it “was based on legitimate business reasons” unrelated to Castergine’s “gender, marital status, pregnancy, or leave.” They pointed to “business issues and conflicts” between Castergine and her supervisor and other executives which began prior to learning that she was pregnant. They also asserted that Wilpon was a longstanding supporter of her.

It remains to be seen if the case goes to trial whether a jury will believe Castergine’s discrimination claims or the Mets’ and Wilpon’s defense that there were independent business reasons unrelated to the plaintiff’s gender, pregnancy and marital status, or leave, all of which comprise categories of discrimination protected by federal and state law.

For workplace issues concerning pregnancy, marital status, leaves, work performance, and gender discrimination or harassment contact the Gilbert Law Group at 631.630.0100.

Offensive, Discriminatory Costumes At Work: From the Racist to the Racy

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Halloween is a good time for children and adults alike. But what the holiday represents to children can be far different than what adults look forward to come the end of October. Typically, adults perceive Halloween as an opportunity to get creative with their costumes while taking advantage of the fact that it is easier to get away with wearing an outfit which may not be considered appropriate at any other time of year. In one’s free time and in the company of their friends and family, surely this mindset should not be a problem, most of the time. Frequently however, employees attending Halloween parties at the office or at a work function take it too far by wearing costumes which could easily offend a co-worker. In doing so, one can open themselves or their employers up to liability for harassment and discrimination and and can be disciplined or terminated.

Costumes which should not be worn to work include those that are overly violent, gruesome, controversial, insensitive or grotesque. Some examples include bloody zombies, terrorists, police brutality victims, ebola patients, etc.

Other categories of costumes which will not be tolerated in the office or at a work event range from the racist to the racy. Obviously, if you dress as a nazi or kkk clan member, and the employer allows it, that can be considered blatant and willful discrimination based on race, color, national origin, etc. Likewise, inappropriate, sexually lewd or explicit costumes will lead to allegations of sexual harassment.

Another issue to consider is those employees who may be religious. If employees dress as the anti-christ, or a character from the Book of Mormon, it may lead to some claiming discrimination based on religion.

From an employer’s point of view, one need not be the costume police. An employer does not have to give a list of costumes which will not be tolerated. If you are going to have an event, tell employees that they are to use proper judgment and common sense; that any costumes deemed to be offensive or inappropriate, will lead to a supervisor inevitably telling the employee to change. It is always helpful to encourage employees to ask questions in advance. If there is an HR Department, it may be a good idea for them to speak to an HR rep before they show up in a hazmat suit, as not everyone will find that to be funny or appropriate. It is also important that employers have a policy as it relates to social media. Posting photos of Halloween costumes at work can lead to a negative perception of the company among other unintended legal consequences.

For questions or concerns relating to discrimination, sexual harassment, other workplace, or labor and employment issues, call Gilbert Law Group: (631)630-0100.

Sex Discrimination and Frozen Eggs In the Workplace

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Discrimination because of sex related to pregnancy is unlawful under both Federal and State law. See, Civil Rights Act of 1964, § 701(k), 42 U.S.C.A. § 2000e(k), McKinneys Executive Law § 296 et seq. This is a form of discrimination that can be considered both sex discrimination and/or disability discrimination.

Pregnancy in the workplace was in the news this past week as several large employers made headlines for their respective policies relating to egg freezing. Indeed, companies are offering to pay for women to freeze their ova so that they can work through their most productive and fertile years, without losing the ability to have children.

First, it was announced that Facebook and Apple will begin offering insurance coverage for female employees to freeze their eggs for later fertilization and implantation, a procedure that can cost as much as $20,000. Then Citigroup announced the same plan.

This is naturally controversial.  While some women will be grateful for the fully paid-for benefit, others, as noted in this New York Times blog post, could perceive this as putting pressure on women to stay childless as long as they want to advance their careers.

This issue has not been litigated as of yet mostly because these work policies are germinal and have just been implemented. While there is nothing facially unlawful about these policies, it could become evidence in a lawsuit brought by a woman who is turned down for a promotion, terminated, or harassed because of pregnancy, or because of actual or perceived “maternal” responsibilities.

Call Gilbert Law Group today for counsel related to pregnancy issues in the workplace, sex discrimination, or disability discrimination: (631)630-0100

Can An Employee be Fired for Marijuana Use?

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With marijuana use becoming legal in an increasing number of states, the courts will become the battleground for deciding whether an employee may be fired for marijuana use. In fact, Colorado’s highest court will decide that very issue in a state where both medicinal and recreational marijuana use have been legalized. The issue: whether a workers’ off-duty, off work-site use of medical marijuana is protected by law. The facts: Brandon Coats is a quadraplegic medical marijuana patient who was terminated from Dish Network after failing a drug test in 2010. Coats never got high at work, but pot’s intoxicating chemical, THC, can stay in the system for weeks. The employer claims that it has a zero-tolerance drug-free workplace policy, and it is therefore irrelevant if Coats was impaired at work.

Coats, 35, was paralyzed in a car accident as a teenager. In 2009, he found that pot helped dissipate violent muscle spasms. Coats was a telephone operator for Dish for three years before he failed a random drug test. He told his supervisors in advance that he would probably fail the test. The lower courts upheld the firing, holding that pot use cannot be considered lawful so long as it violates federal law.

Aside from the narrow issue of state law, there are several important issues in this case. Colorado, like New York and several other states, has a Legal Activities Law which prevents employers from discriminating against employees who engage in off-duty, off work-site activities which are legal. New York also recently made legal the medicinal use of marijuana under certain conditions. Also, under the Americans With Disabilities Act (ADA) as well as New York’s Human Rights Law, Dish’s termination of Coats may constitute unlawful disability discrimination based on his disability.  There is also the issue of reasonable accommodation of Coats’ disability.

It would appear that where workers are employed in nonhazardous jobs, unless there is some negative impact in the workplace, an employee’s marijuana use may not serve as a basis for discharge. Negative impacts may include smoking or ingesting at work, impairment or being ‘hung over’ at work, poor performance linked to the use, or time and attendance issues.

Also, if the employer receives federal funding, condoning known pot use may jeopardize a federal subsidized project, contract, continued receipt of federal funds, or status as a federal agency employer inasmuch as federal law still prohibits pot use.

This case clearly has nationwide implications as it will impact how companies and other employers treat employees who use the drug both medically and recreationally. It will therefore be interesting to see how Colorado’s Supreme Court rules. Stay tuned.

EEOC Files First Ever Sex Discrimination Suit On Behalf of Transgender Employee

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Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee based on his or her race, color, sex, religion or national origin (see 42 U.S.C. § 2000e-2).

The U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed today that a Detroit-based funeral home operator discriminated based on sex in violation of federal law by firing a Garden City, Michigan, funeral director/embalmer due to the fact that she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.

In December 2012, the EEOC adopted a Strategic Enforcement Plan (SEP) for sex discrimination to include “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions…” as a top Commission enforcement policy.

Harris is a funeral home company with multiple establishments in and around the Detroit area. Amiee Stephens had been employed by Harris as a Funeral Director/Embalmer since October 2007. During her tenure, she had always adequately performed the duties of that position.  In 2013, she gave Harris a letter explaining she had decided to undergo a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, compatible with her gender identity as a woman.  Two weeks later, Harris’ owner fired Stephens, telling her that what she was “proposing to do” was intolerable.

The Commission has relied on rationale from well-settled Supreme Court precedent regarding sex discrimination. The Commission and the Court recognize that when an employer considers an employee’s sex in taking an adverse action – for example, if an employer terminates a transgender employee based on its judgment that the employee does not conform to the employer’s stereotypes regarding how someone “born” that sex should live or look – the employer will violate Title VII.

source:http://www.eeoc.gov/eeoc/newsroom/release/9-25-14d.cfm