In what is being referred to as the largest verdict for an individual case of sexual harassment in New York, a Queens County jury awarded $15 million to a nurse, Janet Bianco, who claimed that a physician, Dr. Matthew Miller, sexually harassed her over an 8 year period. According to the lawsuit, Bianco complained repeatedly to supervisors at Flushing Hospital concerning Miller’s actions, which began in 1993 and ended in 2001.
Under the federal Family and Medical Leave Act of 1993 (“FMLA”), an eligible employer is entitled to take up to 12 weeks of unpaid leave per year in connection with, among other things, a “serious health condition.” Upon return from such leave, such employee is entitled to be restored to the same or equivalent position. Recently, the United States Court of Appeals for the Second Circuit (which embraces New York, Connecticut and Vermont) held in Roberts v. The Health Association that an employer does not violate the FMLA where it terminates an employee while on FMLA leave, where it is clear that the employee would not have been able to return to work upon the expiration of the 12 week leave.
Under federal law, an employee who seeks to hold an employer liable for a hostile work environment, based upon sex, race, age, national origin, or other protected category, is generally required to show that the hostile work environment or harassment is “severe or pervasive.” Until recently, courts interpreting New York State and New York City anti-discrimination statutes have assumed that the standards for proving harassment under those laws were similar to federal law.
Title VII of the Civil Rights Act of 1964 prohibits employers from, among other things, retaliating against any employee who has opposed unlawful employment practices. An employee who speaks out about discrimination on her own initiative is clearly engaged in conduct protected by Title VII. Until recently, however, it was not entirely clear whether the antiretaliation provision’s protections also extended to an employee who does not speak out about discrimination on her own initiative, but, rather, answers questions during an employer’s internal investigation into discrimination.
President Obama signed the Lilly Ledbetter Fair Pay Act on January 29, 2009. It was the first bill signed into law by the new President. As discussed in earlier blogs, the new law amends Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973 “to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.”