Sex Discrimination Cases from the 1960s to Today

Author: Stephen D. Hans

Employers first faced lawsuits for workplace sex discrimination during the 1960s after the enactment of the Civil Rights Act of 1964.

According to the Equal Employment Opportunity Commission (EEOC), flight attendants were among the first organized women’s groups to file lawsuits over sex discrimination. In the Lansdale v. United Air Lines, Inc. case, the pivotal issue was the company’s inequality in discharging female but not male employees after they married. In 1969, the district court ruled in favor of United, but the case ruling was reversed during appeal in 1971. In the Laffey v. Northwest Airlines, Inc. case, brought under Title VII of the Civil Rights Act and the Equal Pay Act, the court found for the plaintiff, ruling unequal treatment of males and females in hiring, pay, promotions, benefits and weight monitoring.

Since that time, sex discrimination remains an important issue employers must deal if they plan on successfully preventing lawsuits.

In a recent sexual harassment and retaliation case brought by the EEOC against EmCare, the jury awarded the plaintiffs $499,000. The findings addressed the fact the company’s Human Resources ignored the employees’ sexual harassment complaints regarding misconduct by the former AnesthesiaCare CEO. Two employees who filed complaints were fired within six hours of each other six weeks later, which the EEOC argued was retaliation.

Administrative resolutions are often the answer for employers to avoid costly outcomes like this one, along with Human Resources doing its part to enforce its company’s anti-discrimination policies.

Obtaining an experienced Queens, New York employment defense litigation lawyer at the onset of discrimination accusations can help you resolve issues quickly and protect your bottom line. Stephen Hans & Associates brings decades of experience to bear helping employers deal with discrimination issues and other employment disputes.

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Determining the More Subtle Instances of Age Discrimination

As an employer, it is important to consider what types of hiring process errors can lead to age discrimination lawsuits. Does the candidate need to overhear the hiring manager say the company wants to hire someone younger? Or hear the recruiter say someone is too old for the job? In most instances, age discrimination takes on a more subtle form than these two blatant examples of age discrimination.

A case in point is one where a complainant appealed to the Equal Employment Opportunity Commission (EEOC) after initially having his claim denied. Under the Age Discrimination in Employment Act, the applicant argued that his qualifications were superior to the other applicant’s qualifications and that his age was the only reason for hiring the other candidate. The position was for an industrial property management specialist position, entitled Contract Price/Analyst. The following are noteworthy arguments made during appeal:

  • The hiring manager said he did not know the applicant’s age, but the resume indicated the complainant was over the age of 40
  • The complainant had more experience as a contract price/cost analyst than the selectee
  • The complainant had an MBA while the selectee only had a BA in business administration
  • The complainant had a BA in accounting while the selectee had an MA in Education (an unrelated field for the job)
  • The complainant received many awards in his field and had significantly more overall relevant experience for the contract price/cost analyst position working as an auditor, financial examiner, contract price/analyst and industrial property management specialist
  • The selectee’s experience was largely in the field of education

As a result of the facts uncovered in this review, the EEOC determined that the non-selection of the complainant was unreasonable. The EEOC ordered that the complainant be offered the position or an equivalent position with appropriate back pay and benefits. The management official who erred in hiring was to be provided with appropriate training.

Stephan Hans & Associates provides effective legal advice and representation to employers in the New York City area, including Queens, Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

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What Is the Professional Exception to Employment At-Will Termination?

As described in our earlier blog article, there are exceptions to at-will employment terminations, making them unlawful, and termination based on discrimination is one of them. Another unlawful reason for termination under New York case law is the professional exception.

The New York State Bar published an article that explains the professional exception. In the case Wieder v. Skala, Wieder was a civil litigation attorney associated with the Skala law firm (defendant in the case). Wieder discovered that one of the firm’s partners made a mistake in a real estate transaction and covered it up. When he confronted the partner, the partner admitted he had “lied about the real estate transaction and later admitted in writing that he had committed several acts of legal malpractice and fraud and deceit.” Weidner reported the misconduct to the Appellate Division Disciplinary Committee as required by the Code of Professional Responsibility under the New York State Bar. The firm fired him for reporting the misconduct and Wieder sued for wrongful termination. The court ruled in favor of Wieder, finding that there was a professional exception to the at-will employment rule based on the New York Bar’s Code of Professional Responsibility. However, in cases that did not involve members of the New York Bar, the court did not find that a professional exception applied. It ruled that in these other types of cases, such instances are best left to the New York Legislature. The legislature has not passed any laws to clarify this point and subsequently, there is no legal recourse to being fired for reporting illegal activities in most employment situations.

If you are a business owner and have questions or unsure about whether an employee termination is legal, it is wise to consult with an experienced employment litigation lawyer.

Stephan Hans & Associates is a well-established employment litigation firm located in Long Island City, Queens and our employment litigation experience dates back to 1979.

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ACA and the Problems with a 30 Hour Work Week

Author: Stephen D.Hans

Juggling compliance with the Affordable Care Act (ACA) and profitability is a problem many employers in the restaurant industry face today. Under the ACA, companies with 50 or more full-time employees must either pay for their full-time employees’ health care coverage or pay penalties. Penalties go into effect in 2015 or 2016, depending on company size.

For many years, the IRS code has defined a full-time employee as one who works 40 hours a week. In contrast, the ACA defines a full-time employee as an employee who works 30 hours a week.

The ACA outlines calculations for determining whether your company is an “applicable large employer” and figuring out how many full-time employees you have. It requires taking the total hours worked by all employees per month and dividing the total by 120. The 120 figure represents four 30 hour work weeks. For example, say total monthly work hours are 6,000. When divided by 120, you get 50 and that would mean you have 50 full-time employees, working 30 hour work weeks. However, what if some of your employees are working 40 hours a week? The calculation indicates you have 50 full-time workers, but you do not. Perhaps the rest of your employees work under 30 hours a week. The question then arises, which workers aside from those working 40 hours a week are entitled to health insurance coverage? The math does not align with 40 hour work weeks.

The new 30 hour work week requirement is problematic for many employers, causing them to restructure their work forces based on the full-time definition of 30 hours. It has created undesirable consequences for both employers and employees. To make ends meet, many employees are now forced to work two jobs: a 30 hour full-time job and an additional part time job. Employers are having to manage larger numbers of part-time workers which makes running a business more administratively complicated.

A coalition of restaurant, retail and employers in other industries have backed a legislative initiative to restore the 40 hour work week. The bill is S.1188 and it currently has passed the House of Representatives.

If you are confused about how to comply with the ACA in your business, you are not alone. Consult with an experienced employment litigation lawyer who can keep you apprised of current laws and help you comply with federal regulations.

For more than three decades, Stephan Hans & Associates has provided effective legal advice and representation to employers in the Queens & the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

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What Employers Should Understand about Disability Discrimination

Author: Stephen Hans

Business owners typically look from an employer’s perspective and fire employees who cannot do the job. For the most part, this line of reasoning is valid and especially if you have at-will employment, where the employer has the right to terminate an employee for any reason whatsoever. However, there are legal exceptions to the “whatsoever” conditions of at-will employment, and discrimination underpins the majority of these exceptions.

Firing an employee or not hiring an employee because of disability is a form of discrimination. The Americans with Disabilities Act requires employers to provide:

  • Equal opportunity in selecting, testing and hiring qualified applicants with disabilities
  • Job accommodation for applicants and workers with disabilities when such accommodations would not impose “undue hardship”
  • Equal opportunity in promotions and benefits

Certainly, accommodating a worker who has a disability is harder than managing an employee who has no disability. Even so, this fact does not constitute undue hardship.

The Equal Employment Opportunity Commission (EEOC) is bringing a lawsuit against Harrison Poultry and this lawsuit serves as a recent example of disability discrimination. The EEOC determined that Harrison Poultry discriminated against an employee with a disability who was on an approved leave. A physician diagnosed the employee with emphysema. Instead of granting an accommodation to the employee who requested a 12 day extension to his vacation so he could comply with doctor’s orders, the company fired him.

On behalf of the worker, the EEOC first attempted to settle with Harrison Poultry, but when unable to reach a settlement, the EEOC filed a lawsuit. The lawsuit seeks back pay, compensatory and punitive damages and injunctive relief to prevent future disability discrimination. The EEOC alleges that granting the extension would not have resulted in undue hardship on the company. In fact, as it turned out, the employee’s position was not filled again until three months later.

Litigation often makes time consuming demands on business owners. Understanding discrimination laws and consulting with an experienced employment litigation attorney can help employers avoid costly lawsuits and the lost production time involved with them. Stephen Hans & Associates brings decades of experience to every legal matter involving employment disputes.

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Importance of Educating Your Managers about Religious Discrimination Laws

Restaurant owners must ensure their managers understand employment laws and put policies in place that protect their business against discrimination lawsuits. Providing a non-hostile work environment to employees is an essential guarantee of their civil rights.

Recently, the Equal Opportunity Employment Commission (EEOC) brought a lawsuit against Food Lion, based on religious discrimination. Food Lion is a supermarket chain, headquartered in North Carolina that employs an estimated 73,000 workers. The store cited in the claim was located in Winston Salem, N.C. The manager hired an employee, Victaurius L. Bailey to work as a meat cutter. Bailey was also a Jehovah’s Witness minister and elder. Based on his faith, terms of his employment schedule allowed the employee to attend church services on Sundays and church related meetings on Thursday evenings. The store manager who hired him agreed not to schedule him for work on Sundays and Thursday evenings. When the company transferred Bailey to a different store in Winston Salem, the manager at the new store told him he did not see how it was possible to keep him if he could not work on Sundays. He was fired in 2011 due to his unavailability for Sunday work.

However, this decision to fire him violated Title VII of the Civil Rights Act, which requires employers to attempt to make reasonable accommodations based on an employee’s religious beliefs unless it causes undue hardship for the company. The EEOC sued on behalf of the worker and sought back pay, along with past and future monetary losses, compensatory damages, punitive damages and injunctive relief.

An experienced employment law attorney can help you avoid terminations that violate civil rights laws and can potentially result in discrimination cases. Stephan Hans & Associates is a well-established employment litigation firm located in Long Island City, Queens and our employment litigation experience dates back to 1979.

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How Can Employers Avoid Litigation with the EEOC?

The Equal Employment Opportunity Commission (EEOC) can bring litigation against employers on behalf of workers who file discrimination or harassment claims with the EEOC. Because the EEOC is selective about filing lawsuits it litigates only in a limited number of cases where the grievance is substantial and it deems a lawsuit is warranted. However, by working with an experienced employment lawyer, employers can receive effective legal guidance that often helps them settle and avoid litigation.

A recent case in point where the EEOC decided to litigate involved a restaurant in Fresno, California called Sal’s Mexican restaurant. In the lawsuit, the EEOC claimed allegations of sexual harassment and gender discrimination, asserting that a male supervisor sexually harassed a hostess in 2009. She was a teenager at the time and the supervisor’s harassment involved unwanted sexual advances, propositions, grabbing her body parts and attempting to kiss her. As a condition for employment the supervisor also made her give him hugs and back rubs. She complained to management repeatedly but management did not handle her complaints. The sexual harassment continued until her resignation from the hostess position in 2010.

Although the restaurant never admitted liability, the owner avoided litigation by entering into a two year conciliation agreement with the EEOC and former hostess. Actions taken in the conciliation included:

Hiring a third party employment consultant for assistance with drafting and implementing policies and procedures to address and prevent discrimination and sexual harassment in the workplace

Providing all employees with training about their rights and responsibilities regarding workplace discrimination and harassment

Monetary relief of $15,000
greeing to establish a record keeping system to track and monitor complaints

If you face discrimination or harassment allegations, consult with an experienced employment litigation attorney as soon as possible. For more than three decades, Stephan Hans & Associates has provided effective legal advice and representation to employers in the New York City area, including Manhattan, Brooklyn, the Bronx, Long Island and Westchester.

 

Author: Stephen D. Hans-Queens NY Employment and Labor Law Attorney

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