Tagged: Discrimination

New York City Prohibits Discrimination Against the Unemployed

New York City has expanded the scope of its Human Rights Law (“NYCHRL”) to prohibit job discrimination based upon a job applicant’s status as unemployed. The amendments to the NYCHRL define the term “unemployed” to mean someone “not having a job, being available for work, and seeking employment.” The amendments, which will become effective on June 11, 2013, are groundbreaking in that they make New York City the first jurisdiction in the United States to provide a private right of action for discrimination based on an applicant’s “unemployed” status. If successful in pursuing such claims, denied job applicants may recover compensatory and punitive damages, as well as their attorneys’ fees and costs. In light of this, New York City employers should immediately begin preparing for these coming changes by reviewing their hiring practices, as well as their job advertisements and postings.

Gibbons Director, Susan Nardone, to Speak at Upcoming NAWL Labor & Employment Webinar

Employee complaints concerning discrimination and harassment occur in nearly every workplace. Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will serve as a panelist for the upcoming NAWL webinar, “Avoiding the Pitfalls that Cost: Highlighting Best Practices in Labor and Employment Internal Investigations,” taking place on Wednesday, February 27, at 11:00 am. This webinar will focus on how to handle common, yet complex, issues likely to arise during the internal investigation of an employee complaint

New Requirements for NJ Employers and for Employers Conducting Business in Newark, NJ

Beginning November 12, 2012, the State of New Jersey will require employers to post a new “equal pay” notice in the work place, to provide the notice to employees and to obtain an acknowledgment of receipt. Effective November 18, 2012, the City of Newark will impose restrictions on employers conducting hiring in the City with regard to the use of criminal background checks for job applicants.

Crucial Issues in Investigations

Does your company conduct internal investigations? If so, you should be asking yourself these four crucial questions: Is the right person conducting the investigation? Is the investigation thorough? Is it taking too long? Is the company following through? Click here to read more about these important internal investigation concerns in an article recently written by Kelly Ann Bird and published by The Metropolitan Corporate Counsel.

Employee Participation in Internal Investigation Not Covered by Anti-Retaliation Provision of Title VII, According to Second Circuit

The Second Circuit, in a case of first impression, ruled that an employee is not protected against retaliation prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”) for participating in an investigation of sexual harassment conducted by an employer before a charge of discrimination has been filed with the Equal Employment Opportunity Commission (“EEOC”). Although under Title VII, employers are duty-bound to appropriately remedy discrimination and harassment in the workplace uncovered by such investigation, employers in the Second Circuit can breathe a modest sigh of relief that a negative employment action affecting an employee who claims protection under Title VII based on “participating” in an investigation following an internal complaint is not actionable.

The EEOC Holds that Title VII Protects Transgender Employees

In a decision reversing nearly three decades of prior rulings, the Equal Employment Opportunity Commission (“EEOC”) has ruled that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” In doing so, the EEOC – the agency of the United States Government charged with the enforcement of federal anti-discrimination laws – has expanded upon the definition of discrimination “because of sex” expressly bringing transgender individuals within its purview.

The New EEOC Guidance Regarding Criminal Background Checks

On Wednesday, April 25, 2012, the Equal Employment Opportunity Community issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, updating and clarifying its prior guidance on the subject. The good news? Employers may continue to use criminal background checks as a screening tool for applicants and employees. However, employers are specifically discouraged from asking about a criminal record on the application and are encouraged to conduct an individualized assessment of the applicant/employee when job exclusion occurs because of a criminal record. Employers should review their policies to ensure compliance with the EEOC’s latest recommendations.

Quinlan v. Curtiss-Wright: Plaintiff-Employee Bears Burden of Proving Front Pay Damages

In the latest chapter of the ongoing case of Quinlan v. Curtiss-Wright Corporation, the New Jersey Appellate Division has ruled that while an employer, found to have terminated an employee in violation of the New Jersey Law Against Discrimination (“the LAD”), has the burden of persuasion to establish a plaintiff’s failure to mitigate damages with respect to back pay, the employer does not have the burden of persuasion with respect to a plaintiff’s failure to mitigate future losses, including front pay. In reversing a jury award for front pay in the amount of $3,650,318 because of improper jury instructions on the front pay issue, the Appellate Division suggested a framework for proper jury instructions on front pay damages and referred the issue to the Model Civil Jury Charge Committee. The Court also reversed the jury’s punitive damages award of over $4.5 million, concluding that that award was linked to the front pay award. The Court held that a new trial was required on both the front pay issue and on punitive damages.

EEOC Publishes New ADEA Regulations for the “Reasonable Factors Other Than Age” Defense

The Equal Opportunity Commission (“EEOC”) today published its final regulations and commentary concerning the “reasonable factors other than age” provision of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), as that provision pertains to claims of disparate impact. A disparate impact claim is one that alleges that the implementation by an employer of a policy or practice, although non-discriminatory on its face, has had an adverse impact on a category of employees protected by the laws against discrimination in employment.

Supreme Court Recognizes “Ministerial Exception” to Anti-Discrimination Laws

On January 11, 2012, the United States Supreme Court for the first time recognized the so-called “ministerial exception” to workplace discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, the Court unanimously found that the Establishment and Free Exercise Clauses of the First Amendment bar wrongful termination suits brought on behalf of “ministers” against their churches. While this decision is helpful for religious group employers, including religious schools and places of worship, the Court left open the important question of which employees actually qualify as a “ministers.” Accordingly, the decision may create some confusion for religious group employers going forward.