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Yesterday, the New York City Council voted unanimously to extend the protections of the New York City Human Rights Law to unpaid interns.  Now, interns will be protected from unlawful discrimination and harassment, like paid employees.

The amendment defines an “intern” covered by the statute as “an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff.”

The amendment will go into effect 60 days after it is signed by the mayor.

No law requires employers to offer employees severance pay upon termination.  Where an employer has a severance pay plan, however, the obligation to pay severance is triggered upon a qualifying event as defined by the plan, policy or contract at issue.  In most cases, employers will only pay severance in exchange for a general release of employment discrimination claims.  Last week, in Henry v. Federal Reserve Bank of Atlanta 12-cv-1282 (M.D. Tenn., March 17, 2014), however, a judge ordered the employer to show cause why its attempts to obtain a waiver of claims that would have prevented the employee from recovering under Title VII in exchange for severance pay was not a per se act of retaliation.

The circumstances in Henry involved an employee who complained that he was being discriminated against on the basis of religious discrimination.  The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on May 18, 2011.  On May 31, 2011, the employee received a notice that he was being terminated, effective July 31, 2011, which was the date the facility in which he worked would permanently close.  Apparently, the decision to terminate the employee had been made in January 2011.  Based on these facts, it would appear that the employer did not retaliate against the employee for filing an EEOC charge because the decision was made prior to his filing the charge.  However, the terms of his separation were problematic to the court.  According to the severance package the employee was offered, he was required to “waive [his] right to recover monetary or other damages” stemming from his Title VII claim.

Ultimately, the court was unable to substantiate the employee’s claim of religious discrimination.  The court, however, denied the employee’s motion to dismiss the retaliation claim, and further ordered the employer to show cause why its severance offer, which was contingent upon the waiver of claims, should not be deemed per se retaliatory.  The court reasoned that although it would not find every waiver in exchange for severance to constitute retaliation, in this case it appeared that the employee would have been entitled to the severance under the employer’s plan without the need to execute a release, and that the only reason the employer sought the release  was because of the employee’s claim of discrimination.  According to the court, the severance pay under the plan was “part and parcel of the employment relationship,” and by conditioning the employee’s entitlement to severance on the execution of a waiver, the employer basically deprived the employee of a benefit he would have gotten without the need to execute the waiver.  Simply stated, the plan entitled the employee to the severance regardless of whether he signed the release.  By requiring him to execute a waiver for those very benefits, it appears that the employee may have suffered retaliation.

Prior to filing a claim of discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), or the Age Discrimination in Employment Act, a claimant is required to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”).  Title VII and the ADA require that a claimant not file a complaint in court for at least 180 days after filing the charge in order for the EEOC to conduct an investigation.  It was unsettled, however, whether the statute of limitations on other tort claims arising out of the same circumstances as the discrimination was tolled or continued to run.  The Second Circuit, which covers New York, Connecticut and Vermont, has now joined the Seventh and Ninth Circuit in holding that the statute of limitations is not tolled.

In Castagna v. Bill Luceno, et ano., U.S. Court of Appeals for the Second Circuit (13-0796), March 5, 2014, the Second Circuit held that the an EEOC filing “does not toll the limitations period for state law tort claims, even for those claims that arise out of the same factual circumstances as the discrimination alleged in the EEOC charge.”  The plaintiffs argued that requiring a plaintiff to commence a civil action for a tort based upon the same facts alleged in an EEOC charge would constitute judicial inefficiency because the federal discrimination claims could not be brought in that action at the same time.  The Second Circuit stated that a plaintiff in that situation could ask the court to stay proceedings until the EEOC completed its investigation and processing of the charge, at which time the discrimination claim could then be asserted in the lawsuit.

The Second Circuit’s decision is important to keep in mind because New York  law imposes a one year statute of limitations on most intentional torts.  If the plaintiff wants to preserve the right to assert the tort, it is likely that a lawsuit will need to be filed even while the charge is still with the EEOC.


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