Articles Posted in Employment Discrimination

When providing a departing employees with severance pay, most employers require that the employee sign a separation or severance agreement, which, among other things, contains a general release of claims.  The payment of severance is given in exchange for the employee’s agreement not to raise any claims against the employer.  The Equal Employment Opportunity Commission (“EEOC”) does not have a problem with this type of exchange; otherwise, cases could never settle.  The EEOC does, however, take issue with provisions that have become standard in most separation agreements.  Earlier this month the EEOC filed an action in an Illinois federal court against CVS Pharmacy, Inc., alleging that CVS’s severance agreements violate Title VII of the Civil Rights Act of 1964, as amended, because they constitute a “pattern or practice of resistance to the full enjoyment of any rights secured by Title VII.”  The EEOC believes that these provisions violate the retaliation protections contained in Title VII.

According to the Complaint filed in EEOC v. CVS Pharmacy, Inc., certain provisions of the form severance agreement at issue prohibit employees from filing charges of discrimination, and interfere with an employee’s right to participate and cooperate with investigations conducted by the EEOC and state fair employment practices agencies.  The alleged offending provisions included a non-disparagement clause, a confidentiality provision, a cooperation provision that requires the releasee to notify CVS if they are compelled to provide information about the company, and an agreement not to sue.

As most attorneys who practice in the area of employment discrimination law are aware, the clauses challenged by the EEOC are contained in virtually every separation/severance agreement.  If the EEOC prevails, employers may have to give up some of the guarantees  and assurances that they have taken for granted.  Although some argue that prohibiting these types of provisions will make employers less likely to pay severance or settle claims of discrimination, the concern is overstated.  Employers will likely continue to pay severance in exchange for general releases because at the very least they will have secured an agreement that the particular claim at issue will not come back, or continue, to haunt them.



On February 5, 2014, the Equal Employment Opportunity Commission (“EEOC”) released its annual statistics on its FY 2013 activity.   Among other things, the data reveals that there was a 5.7% decrease in charges received by the agency in FY 2013 as compared to FY 2012.  In all, the EEOC received 93,727 charges of discrimination last year.

The most cited basis for charges of discrimination was retaliation, which increased both in number and as a percentage of all charges from the prior year.  Following retaliation was race discrimination, sex discrimination (including sexual harassment and pregnancy discrimination) and disability discrimination.  Also in 2013, the EEOC filed 131 lawsuits, with 78 of them alleging violations of Title VII, and 51 arising under the Americans with Disabilities Act.

The EEOC’s statistics can be found on the Enforcement and Litigation Statistics page of its website.


A key aspect of an employer’s defense in an employment discrimination case involves the proffer of a legitimate non-discriminatory reason for the adverse action claimed to be discriminatory by the employee.  While employers defending a discrimination case are not required to prove  that they acted legitimately, they are required to provide some proof that the employee was terminated for a specific non-discriminatory reason.

On December 16, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Vermont and Connecticut) considered the dismissal by the United States District Court for the Southern District of New York of a plaintiff’s several employment discrimination, retaliation, and hostile work environment claims in violation of federal and New York State law.  Although the Second Circuit upheld the dismissal of the discrimination and hostile work environment claims, the court vacated the District Court’s dismissal of the retaliation claim, stating that the record contained sufficient evidence for the plaintiff to withstand summary judgment.

In Kwan v. The Andalex Group, LLC (U.S. Court of Appeals for the Second Circuit, No.12-2493-cv, decided: December 16, 2013) , the plaintiff, a former Vice President of Acquisitions, claimed, among other things, that she was terminated in retaliation for complaining to the Director of Human Resources three weeks prior to her termination that she believed she was being discriminated against on the basis of gender with respect to her salary raises and bonuses.  Following the plaintiff’s termination, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and the employer submitted a “position statement” in support of its defense.  Among other things the position statement stated that plaintiff was terminated because the company’s “business focus to international investments made the plaintiff’s skill set obsolete.”  However, the employer took a different position in court.  Indeed, the court noted that the employer’s “explanations for the plaintiff’s firing have. . . evolved over time.”  During depositions taken during the litigation, the employer alleged that the “plaintiff’s poor performance and bad behavior were the reasons for the termination.”  Yet, despite that the employer claimed that it was the plaintiff’s performance and behavior that led to the decision to terminate her, the court noted that “[a]ny fair reading of Andalex’s Position Statement to the EEOC indicates that Andalex claimed that Kwan was fired primarily because its business focus had changed.”  The shifting reason for the plaintiff’s termination casted doubt on the employer’s veracity concerning why the plaintiff was, in fact, fired.

Recently, the New York City Council amended the New York City Human Rights Law to specifically require that a covered employer is specifically required to reasonably accommodate the pregnancy of an employee.  Although the Americans with Disabilities Act, as well as New York state and New York City law already requires employers to provide reasonable accommodations to employees who suffer from disabilities, including those related to pregnancy and child birth, the New York City amendment specifically address pregnancy, regardless of whether it leads to conditions deemed to be disabilities under the law.

According to the New York City amendment, which takes effect on January 30, 2014, employers with four or more employees must accommodate an employee’s pregnancy, childbirth, and related medical condition, if such accommodation would permit the employee to perform the “essential requisites of the job.”

An employer is not required to provide a reasonable accommodation if (1) the employer is unaware that the employee is pregnant, has given birth, or has a related medical condition; (2) providing the reasonable accommodation would cause the employer an “undue hardship”; or (3) the employee would not be able to perform the essential requisites of the job even with the reasonable accommodation.

Rarely do commercials instruct the public on anything more than the nature of the products they are pushing. From time to time, however, some advertisement campaigns go the extra mile to do good and contribute to the public’s recognition of society’s own prejudices and biases. Recently, Pantene Phillipines addressed the double standards women are subjected to at work, while simulatenously promoting the Pantene brand.  Sexual discrimination is not just about thinking that women may not be “as good as” men in the workplace. It also includes the perception that they should not be, resulting in situations where hard-working and persuasive women are viewed unfavorably, because those attributes don’t fit into traditional gender stereotypes.

Pantene’s ad, which contains no dialogue, is extremely effective in highlighting this form of gender inequality and discrimination. The ad struck Sheryl Sandberg, Chief Operating Officer at Facebook, prompting her to tweet that it had earned the “Lean In prize of the day.” See the ad here:  Labels Against Women.

Following a Senate vote earlier this week on the Employment Non-Discrimination Act (ENDA), proponents are bracing themselves for a tough fight in the House of Representatives.  ENDA proposes to prohibit employment discrimination on the basis of sexual orientation or identity in much the same way that Title VII of the Civil Rights Act of 1964 bans discrimination on the basis of  race, color, religion, sex and national origin.  Currently, 22 states, including New York, have laws that prohibit discrimination on the basis of sexual orientation.  In addition, New York City’s anti-discrimination law, which is perhaps one of the most progressive and powerful in the country, has long prohibited discrimination on the basis of sexual orientation.

Although New York State’s Human Rights Law prohibits sexual orientation discrimination, the law does not provide for the recovery of attorneys’ fees, thus making it less likely that an aggrieved employee will take advantage of the protections that the Human Rights Law provides.  Conversely, New York City’s Human Rights Law does provide for the recovery of attorneys’ fees, thus making it a far more effective statute.  In addition to prohibiting sexual orientation discrimination, ENDA would make attorneys’ fees recoverable in sexual orientation discrimination cases, thus putting it on the same footing as other types of discrimination.

Nevertheless, ENDA may not become law because House leadership has stated that it will not bring the bill to a vote.  Thus, the nearly 40 year fight that was initiated by Representative Bella Abzug’s introduction of the Equality Act may continue.


On June 24, 2013, the United States Supreme Court decided University of Texas Southwestern Medical Center v. Nassar, in which the Court held that claims of retaliation must be proved using a “but for” standard as opposed to the seemingly lower “motivating factor” standard of causation.

The plaintiff had argued that in order to prevail on his claim of retaliation, he had to show that his engaging in protected activity was a motivating factor in his termination. The motivating factor standard, which applies to claims of status discrimination (e.g., sex, race, religion, national origin and disability), provides that to prevail on an employment discrimination claim, an employee need only “show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision.”

Based upon its review of the language of Title VII, the Supreme Court stated that the motivating factor standard did not apply to claims of retaliation, and that, instead, traditional principles of but-for causation applied.

Yesterday, the United States Supreme Court issued its ruling in Vance v. Ball State University (No. 11-556), which considered who qualified as a supervisor for purposes of Title VII of the Civil Rights Act of 1964. The determination of this issue was critical because employer liability for unlawful harassment under Title VII is less difficult to establish when the harasser is a supervisor, and not just a coworker of the victim. Justice Samuel Alito wrote for the majority that a harasser is not a supervisor unless he or she has the power to “take tangible employment actions against the victim.”

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The ADA Amendments Act of 2008 (“ADAAA”) amended the Americans with Disabilities Act to expand the definition of “disability,” which had been limited over the years by court decisions. In enacting the ADAAA, Congress specifically rejected United States Supreme Court interpretations of the meaning of the term “disability.” The result of the ADAAA was to make it easier for individuals with impairments to demonstrate that they satisfy the definition of “disability.”
On May 15, 2013, the Equal Employment Opportunity Commission (“EEOC”) revised its guidance as it relates to several types of impairments, namely, cancer, disability, epilepsy, and intellectual disabilities. As stated by the EEOC Chair, Jacqueline A. Berrien, “Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability. Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

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The U.S. Equal Employment Opportunity Commission (EEOC) has scheduled a meeting for May 8, 2013 at its main headquarters in Washington, D.C., to address whether employer wellness programs may implicate, among other things, the confidentiality and permissible inquiry provisions of the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GENDA), and other statutes enforced by the EEOC.

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