New York Employment Attorney Blog
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.”
Articles Posted in Employment Discrimination
EEOC Issues Revised Guidance on Specific Disabilities
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.”
Do Employee Wellness Programs Violate Federal Law?
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.
U.S. Second Circuit Court of Appeals Upholds Dismissal of Retaliation Claim Made in Connection with “Paramour Preference” Claim
In Gail Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., et al., 12-3489-cv, April 26, 2013, the plaintiff filed claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that an affair that one of her brothers had with another worker in their family business created a sexually hostile work environment, and that following her complaints, both of her brothers retaliated against her. The lower court dismissed both claims, and the plaintiff appealed only the dismissal of her retaliation claims.
U.S. Second Circuit Court of Appeals Confirms Broader Construction Under New York City Human Rights Law
In 2005, the New York City Council amended the New York City Human Rights Law (“NYCHRL”) to make it clear that courts should construe New York City’s anti-discrimination protections more broadly than federal discrimination protections. Under the Local Civil Rights Restoration Act of 2005, the New York City Council alerted courts to their mistaken assumption that interpretations of the NYCHRL should be coextensive with federal and New York State discrimination law. Consequently, courts began construing the NYCHRL much more broadly and in favor of discrimination claimants. Now, the Second Circuit Court of Appeals (which covers New York, Connecticut and Vermont) has confirmed that the NYCHRL is broader in its protections and application.
In Mihalik v. Credit Agricole Cheuvreaux North America Inc. (11-3361-cv) (April 26, 2013) , the Second Circuit reversed a grant of summary judgment in favor of the employer on plaintiff’s sexual discrimination, sexual harassment, and retaliation claims. Specifically, the Second Circuit found that the District Court had applied federal standards in determining whether the employer was liable under the NYCHRL
The court summed up its conclusions as follows:
U.S. Second Circuit Court of Appeals Upholds Same-Sex Harassment Claim
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in employment. In 1998, the United States Supreme Court held in Oncale v. Sundowner Offshore Servs., Inc. that sexual harassment also included same-sex harassment and violated Title VII. Recently, the United States Court of Appeals for the Second Circuit, which covers New York, Vermont and Connecticut, reversed a decision of a District Court in the Western District of New York, dismissing a same-sex harassment claim on summary judgment grounds. The Second Circuit concluded that there was ample evidence and issues of fact that could support a jury verdict in favor of the harassed employee.
In Barrows v. Seneca Foods Corp., Jeffrey Barrows alleged that his male supervisor, Victor Sanabria, sexually harassed him by touching his genitals and otherwise creating a hostile working environment on the basis of sex. Among other things, Sanabria referred to Barrows as a “faggot” and leveled vulgar sexual comments at him during work. In addition, Barrows alleged that Sanabria had likewise harassed other men in similar fashion, but not women. The District Court for the Western District of New York had previously dismissed the lawsuit, holding that “there was no evidence that [Barrows] had suffered discrimination because of his sex.” (emphasis in original).
The Second Circuit reversed, noting that under the Supreme Court’s decision in Oncale, the focus on whether sexual harassment has occurred is on “whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g. hostile work environment] to which members of the other sex are not.” Indeed, this is the very essence of a sexual harassment claim, and it does not matter that the harasser and victim are of the same sex. In addition, in order for the sexual harassment to be illegal, it needed to be “severe or pervasive.” The Second Circuit held that a jury could find that “Sanabria treated women better than men and that, therefore, men were ‘exposed to [a] disadvantageous term[ ] or condition [ ] of employment to which [women] were not.'” (alterations in original).
Second Circuit Holds that Timely Arrival to Work Is not Always an Essential Function of the Job Under Disability Discrimination Laws
Last week, on March 4, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), reaffirmed the importance for an employer to conduct a fact-specific analysis in considering requests for reasonable accommodation under the Americans with Disabilities Act (ADA).
In McMillan v. City of New York, it was undisputed that McMillan’s disability necessitated treatment that prevented him from arriving to work at a consistent time each day. The Second Circuit noted that although in most contexts, timely arrival at work is considered an essential function of the job, which could render futile any attempts to reasonably accommodate the situation, it was not at all entirely clear whether timely arrival at work was an essential function of McMillan’s job. Under McMillan’s circumstances, he could offset the time missed with additional work hours in order to complete the essential functions of his job.
Ultimately, McMillan sued the City under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law, alleging among other things that because the office remained open until 10:00pm, and he often worked past 7:00pm, he would still be able to arrive late and work the requisite number of full time hours per week.
EEOC Approves Strategic Enforcement Plan for 2013-2016
On December 17, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) approved its Strategic Enforcement Plan for Fiscal Years 2013-2016 (“SEP”). The SEP establishes priorities and integrates all components of the EEOC’s enforcement. In so doing, the SEP adopted the following national priorities:
1- Eliminating Barriers in Recruitment and Hiring. The EEOC intends to target class-based recruitment and hiring practices that discriminate on the basis of race, ethnicity or national origin, religion, age, gender (women), and disability.
2- Protecting Immigrant, Migrant and Other Vulnerable Workers. Among other things, the EEOC intends to target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting those workers who may not be aware of their rights to equal employment opportunity, or are otherwise reluctant to exercise them.
3- Addressing Emerging and Developing Issues.
4- Enforcing Equal Pay Laws. The EEOC will continue to target compensation disparities and practices in the area of gender or sex discrimination.
5- Preserving Access to the Legal System. The EEOC will scrutinize policies and practices that have the effect of discouraging employees from seeking relief under the applicable employment discrimination statutes.
6- Preventing Harassment Through Systemic Enforcement and Targeted Outreach.
Second Circuit Rules that Lower Court Erred By Declining to Order Injunctive Relief Ensuring Sexual Harasser was no Longer in a Position to Sexually Harass
Following a two-week trial, a jury returned a verdict finding that the employer had subjected a class of female employees to a sexually hostile work environment. The jury awarded compensatory and punitive damages to the class of employees who had been sexually harassed. The court, however, declined to impose injunctive relief to ensure that the sexual harasser would not be in a position to harass women in the future.
The Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, reversed and held that under the circumstances of the case, injunctive relief was necessary to prevent future sexual harassment.
In Equal Employment Opportunity Commission v. KarenKim, Inc., 11-3309-cv, the Second Circuit determined that the employer had not adopted adequate measures to ensure that the sexual harassment would not recur. The court noted that the sexual harasser and owner of KarenKim were involved in a romantic relationship, which meant that he might still have access to the employees even if he were no longer technically employed as a supervisor. In addition, the court noted that the complaint procedure adopted by KarenKim to prevent future sexual harassment following the lawsuit was ineffective in that it required that complaints be made in writing and within 30 days of the alleged harassment in order to be acted upon. This coupled with the fact that the initial sexual harassment went unchecked for years prompted the Second Circuit to order the New York federal district court to impose the injunctive relief requested by the EEOC.
EEOC Vigorously Pursues Pregnancy Discrimination Claims
Despite that employers have become increasingly more aware of blatant employment discrimination in the workplace, pregnancy discrimination continues to thrive. The Huffington Post recently posted an article discussing several pregnancy discrimination cases recently filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). It appears that pregnancy discrimination has become an enforcement priority for the EEOC, which will likely be filing additional cases in the near future.