Labor Employment Law Blog

By Marlene Nicolas, Tina Rad, and Gregg Fisch

An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace violence, and face liability for negligent hiring and retention of employees who commit violence in the workplace. Furthermore, a job applicant’s honesty and judgment are relevant factors to consider in assessing an applicant’s suitability for a job. For these reasons, employers frequently feel the need to inquire about an applicant’s criminal conviction history and use criminal background checks when making hiring decisions. However, a recent increase in laws banning, or significantly limiting, an employer’s ability to inquire about an applicant’s criminal history, requires that all employers examine their current criminal background check policies and practices to ensure compliance with applicable laws.

By Brian Garrett* and Jonathan Sokolowski

On April 11, 2013, the New York City Council’s Committee on Civil Rights debated a proposed bill that would ban employers from using credit checks to evaluate prospective employees. The proposed bill, called the Stop Credit Discrimination in Employment Act (the “SCDEA” and available here), would create a blanket ban on using credit information for hiring purposes, with a narrow exception only where employers are required to use such information by state or federal law.

By  Eric Raphan and Rebecca Hirschklau

On March 13, 2013, one year after we first introduced you to the idea that an individual’s unemployed status may be considered a protected characteristic, the New York City Council, voted into law legislation preventing companies from discriminating, in job advertisements or in the hiring process, against a job applicant who is unemployed. While New Jersey, Oregon and the District of Columbia have enacted similar laws, New York City has broken ground with Bill 814-A by granting unemployed applicants a private right of action, allowing them to sue alleged violators for damages in court - literally creating a new protected class of job applicants: the unemployed.

By Sean Kirby and Rachel Tischler* 

On March 21, 2013, the Second Circuit issued its opinion in Parisi v. Goldman Sachs & Co., Case No. 11-5229, reversing a decision from the Southern District of New York, and holding that arbitration agreements which preclude Title VII class actions are enforceable. In reaching this decision, the Second Circuit affirmed the “liberal federal policy in favor of arbitration” and found that “there is no substantive statutory right to pursue a pattern-or-practice claim” as a class action.

By Lisa Lewis and Rachel Tischler* 

In February 2013, identical bills aimed at reducing pre-employment discrimination against individuals with criminal histories were introduced in the New Jersey Senate and the New Jersey Assembly (S2586 and A3837). Both bills proposed the adoption of the Opportunity to Compete Act (the “Act”) which would impose multiple restrictions and requirements on employers in connection with seeking criminal background information from prospective employees. If the Act is adopted, New Jersey will join a growing list of states, cities, and localities which have passed similar anti-discrimination legislation.

By Lisa Lewis and Rachel Tischler* 

The N.Y. State Senate and Assembly recently introduced “competing” bills both targeting increased employment protections for victims of domestic violence. The bills each provide various measures of job security for employees who need to be absent from work on the basis of a domestic violence issue.

By Jonathan Sokolowski 

In a recent decision from the Appellate Division, First Department, a unanimous panel reinstated claims asserted by three plaintiffs under the New York City Human Rights Law (“NYCHRL”). The plaintiffs in Hernandez, et al. v. Kaisman, 957 N.Y.S.2d 53 (N.Y. App. Div. 2012) claimed they were subjected to a hostile work environment in violation of both the NYCHRL and the New York State Human Rights Law (“NYSHRL”). The lower court dismissed both the NYCHRL and the NYSHRL claims asserted by the plaintiffs. On appeal, however, the First Department applied a more liberal standard to reinstate plaintiffs’ NYCHRL claim while, at the same time, affirming the dismissal of the plaintiffs’ analogous NYSHRL claim.

By Melanie Hamilton 

On February 7, 2013, the California Supreme Court held that where a plaintiff proves that unlawful discrimination in violation of the Fair Employment and Housing Act ("FEHA") was a substantial factor motivating her termination, but the employer proves that it would have made the same employment decision absent such discrimination, the plaintiff may obtain only declaratory or injunctive relief and attorneys’ fees and costs, but may not recover damages, backpay, or reinstatement.

By Jonathan Sokolowski and Brian Garrett*

On January 7, 2013, the New Jersey Department of Labor and Workforce Development (“the Department”) published proposed rules to implement a bill that Governor Chris Christie signed into law in September 2012 which requires certain New Jersey employers to post and distribute a notification to employees concerning their rights to be free of gender inequity or bias in the workplace. Significantly, the notice of proposal contains the text of a proposed form of notification. The proposed form of notification can be found as Appendix B to the proposed rules at the following website: http://lwd.dol.state.nj.us/labor/forms_pdfs/legal/2013/45_NJR_17_a_.pdf

By Gregg Fisch, Rebecca Hirschklau, and James Hays

In what is reported to be a landmark decision, the United States Equal Employment Opportunity Commission (“EEOC”), in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, found for the first time that discrimination against transgender individuals constitutes sex discrimination in violation of Title VII. While not the first case to explore the notion that Title VII prohibits discrimination based upon gender identity and stereotypes, it is the first decision by the EEOC addressing the subject of transgender discrimination.

By James Hays and Rebecca Hirschklau

All employers are familiar with race, gender, age, disability and many other protected classifications under the myriad of Federal and state fair employment practices acts. It now appears that there is a growing trend to add “unemployed” to that list. While unemployment rates appear to be on the decline, 8.3 percent of the population remains unemployed, up more than 3 percent from where it was less than four years ago. When unemployment rates are high, employers invariably become inundated with candidates for the limited openings that may become open and available. So much so that some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply. In light of this recent development in job advertisements, Congress and several state legislative bodies have started to amend their anti-discrimination laws to add “unemployed status” as a protected class.

By Maranda W. Rosenthal & Thomas R. Kaufman

On September 16, 2011, the Ninth Circuit handed down one of the first decisions to interpret and apply the game-changing decision in Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. ___ (2011) (“Dukes”). Although Ellis v. Costco Wholesale Corp. (“Ellis”) is not as ground-breaking as the Dukes decision, it does provide some insight as to how the courts will apply the arguably employer friendly precedent established by Dukes.

On March 1, 2011, the United States Supreme Court held in Staub v. Proctor Hospital that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

On January 24, 2011, the United States Supreme Court held in Thompson v. North American Stainless, LP that an employee who claimed he was fired in retaliation for his fiancée’s discrimination complaint could pursue a claim against their mutual employer under Title VII of the Civil Rights Act.

The new year is a good time for employers to review their hiring practices to ensure that they are job-related and justified by business necessity. Indeed, even seemingly neutral hiring criteria may inadvertently have an adverse effect on a protected group of people. Recently, the use of credit histories to make hiring decisions has come under fire because it allegedly has a disparate impact on certain minority job applicants. On December 22, 2010, the Equal Employment Opportunity Commission's Cleveland Field Office filed suit against Kaplan Higher Education Corp. in the U.S. District Court for the Northern District of Ohio (Civil Action No. 1:10-cv-02882) alleging that Kaplan engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black applicants nationwide based on their credit history. Kaplan contends that it conducts background checks on all applicants, regardless of race, and that the use of credit reports is a necessary component of its background checks into applicants who would be dealing with financial matters, such as financial aid, if hired. The EEOC alleges that this practice violates Title VII of the Civil Rights Act of 1964 because it has a discriminatory impact on applicants due to their race and it is neither job-related nor justified by a business necessity.

On May 21, 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008 ("GINA") into law. As many know, advances in medical technology have made it possible to perform genetic tests to determine if an individual may be at risk of developing a disease or a disorder due to their genetic makeup. GINA was passed in order to prevent the potential misuse of such genetic information by prohibiting employers or health insurance companies from discriminating against individuals based on their genetic information.

Last week, the California Supreme Court decided Reid v. Google, Inc. This case is yet another reminder to California employers that it is worth their while to train their employees and supervisors to be cautious about what they say and what they put into writing in emails, memos, and so on. The case also illustrates the critical importance of employers being able to articulate the precise reasons why an employee is being terminated, communicating those exact reasons to the employee, and having documentation to prove all this in the event of litigation.

A San Diego federal district court recently provided guidance on what constitutes an "adverse employment action" and how an employer's shifting reasons for its actions may affect a discrimination case. In Coyne v. County of San Diego, the plaintiff, an employee, sued her employer for discrimination and retaliation in violation of Title VII and the California Fair Employment and Housing Act. The plaintiff claimed that she was transferred to a lateral position in a different division because of her gender and because she actively supported the gender discrimination claims of other employees. The County filed a motion for summary judgment. The parties conceded that the plaintiff had engaged in protected activity. The issues were whether the transfer constituted a materially adverse employment action and whether the transfer was justified by legitimate non-discriminatory reasons.

In Chavez v. City of Los Angeles, the California Supreme Court held that a court has the discretion to award a plaintiff seeking attorneys’ fees for the underlying litigation only a fair portion of the amount sought.

On November 19, 2009, the Ninth Circuit handed down its opinion in Fleming v. Yuma Regional Medical Center, 07-16427. The court faced the difficult task of interpreting the interplay between Section 504 of the Rehabilitation Act (29 U.S.C. § 794) and Title I of the Americans with Disabilities Act. The Sixth and Eighth Circuits had previously held that the Rehabilitation Act incorporated Title I in its entirety, requiring an employer-employee relationship as a prerequisite to suing for discrimination. On the other hand, the Tenth Circuit had disagreed, and only incorporated the "standards" of Title I, allowing independent contractors to sue even without an employment relationship. In Fleming, the Ninth Circuit agreed with the Tenth Circuit, and held that the Rehabilitation Act would indeed cover claims by an independent contractor notwithstanding the lack of an employer-employee relationship.

The California Court of Appeal recently affirmed a decision by the Fair Employment and Housing Commission ("FEHC") finding that an employer discriminated against a pregnant employee in violation of the Fair Employment and Housing Act. In SASCO Electric v. FEHC, an extremely experienced female who served as a second captain of a yacht was terminated shortly after she informed her employer that she was pregnant. Her employer was admittedly disappointed by the news because he believed that "mothers do not want to work in the boating business." Moreover, he believed the employee's plan to work as long as possible during her pregnancy was "cavalier." Further, he had liability concerns (e.g., her exposure to chemicals and possibly falling on the boat which could lead to a miscarriage). These fears lead the employer to terminate her employment under the guise of a layoff.

The Supreme Court, in a divided decision, recently held that the City of New Haven discriminated against one Hispanic and 17 white firefighters, Plaintiffs in Ricci v. DeStefano, by disregarding promotion examinations where racial minorities as a group performed poorly. The Court's legal analysis of Title VII of the Civil Rights Act of 1964 is important to private as well as public employers, all of whom are covered by Title VII's anti-discrimination mandate.

In an effort to satisfy customers and maintain a desired company image, many employers have dress and grooming policies. As a general rule, employers are legally allowed to establish reasonable dress and grooming requirements that serve legitimate business interests. However, two recent cases remind employers that there are limits on what grooming standards employers can impose on employees.

A California Court of Appeal has ruled that an employee who used a company-provided scooter to move around a factory can sue for disability bias after the scooter broke and was not replaced by the employer.  This despite the fact that there was no medical evidence of disability, the employee worked for six months without using a scooter before deciding to retire, and the employee never told the Company he could not do the job without the scooter.

On January 29, 2009, President Obama signed his first piece of legislation into law -- the Lilly Ledbetter Fair Pay Act. The Lilly Ledbetter Fair Pay Act expands the time frame in which workers can sue for discrimination they have experienced based on gender, race, national origin or religion. Under the new law, workers may now bring a lawsuit for up to six months after they receive any paycheck they allege is discriminatory.

In a recent case handed down by the California Supreme Court entitled North Coast Women's Care Medical Group, Inc. v. Superior Court, the Court was asked to decide whether a medical clinic's physicians could discriminate for religious reasons against an individual based on that person's sexual orientation.

On July 21, 2008, Justice Carol Robinson Edmead of the New York County Supreme Court denied a motion to dismiss a claim for unequal compensation brought against the owners, operators and several individual employees of Cipriani restaurant in Manhattan by a female server.  Torres v. Vittoria Corp., 114667-07 (N.Y. Sup., July 21, 2008).  The Torres decision is particularly notable because the basis for plaintiff’s unequal compensation claim was that she and other female servers were consistently assigned to the breakfast shift, which generated lower tips, while male servers were given the more lucrative lunch and dinner shifts.

The Second Circuit's ruling in Westrec Marina Management v. Arrowood Indemnity Co. is a warning to employers to report potential claims to their insurance carrier as soon as possible or face denial of coverage.  In Westrec, an employee filed a charge of discrimination against Westrec with the California Department of Fair Employment and Housing (DFEH) and requested an immediate right to sue letter.  Subsequently, her attorney sent a demand letter to Westrec asserting claims and seeking possible early settlement prior to filing a lawsuit.  At the time of the letter, Westrec failed to inform its insurer, Arrowood, of the claim.  The employee later filed a civil action, and when Westrec tendered the claim, Arrowood denied coverage.

Recently, we have seen a rise in retaliation claims filed by current and former employees.  Courts continue to grant new rights to such complaining employees.  On May 27, 2008, the U.S. Supreme Court issued two decisions clarifying additional ways for employees to pursue such retaliation claims against employers.

On May 21, 2008, President Bush signed into law a bill forbidding insurance companies and employers from discriminating against an individual based on their genetic information.  Advocates of the Genetic Information Nondiscrimination Act, aka the GINA, contend that it is "the first major civil rights act of the 21st century."  The GINA expands Title VII which already bans discrimination by race and gender to prohibit employers from discriminating against employees on the basis of "genetic information" in hiring, firing, and other activities.  "Genetic information," for the law’s purposes, not only include tests that determine variations in a person’s DNA, but also information regarding family history of a particular disease.  The GINA also prohibits employers from collecting genetic information from their employees, except for rare circumstances such as testing for adverse effects to hazardous workplace exposures, and requires strict confidentiality of genetic information obtained by employers.  The GINA grants employees and individuals remedies similar to those provided under Title VII and other nondiscrimination laws, i.e., compensatory and punitive damages.  It also provides that no person shall retaliate against an individual for opposing an act or practice made unlawful by GINA.  Currently, the GINA does not prohibit discrimination once someone already has a disease.

On May 15, 2008, the California Supreme Court held that California laws limiting marriage to opposite-sex couples violated same-sex couples' rights under the California Constitution.  The Court explained that, "in view of the substance and significance of the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."  The Court also evaluated the challenged marriage statutes under the Equal Protection clause of the California Constitution, concluding that the laws discriminated on the basis of sexual orientation.  Significantly, the Court announced more generally that laws discriminating on this basis must survive "strict scrutiny," the most rigorous possible test, to pass constitutional muster, a standard the Court found the marriage statutes could not meet.  As a result, the Court directed that same-sex couples must be permitted to marry in California.  However, the Court's decision did not, and, indeed, could not, alter federal law or the marriage laws of other states.

The recent case of Harman v. City and County of San Francisco, 158 Cal. App. 4^th 407 (2007) serves as a good example of the risks of not only litigating discrimination cases, but also seeing such cases all the way to a final verdict.  In Harman, the jury found in favor of the employee, finding that the City had an official policy of intentionally discriminating against white males.  Although the lower court dismissed the majority of the employee's claims and the jury awarded the employee a total of $30,300 in damages, the lower court awarded the employee over $1 million dollars in attorneys' fees to cover his legal costs.  In upholding this award, the appellate court stated, "The law does not mandate . . . that attorney fees bear a percentage relationship to the ultimate recovery of damages in civil rights cases."  Many employers already know that plaintiffs' counsel in some employment-related cases are driven more by the promise of attorneys' fees if they are successful, than the damages that might be awarded.  This case is a reminder that in evaluating cases, employers should not just focus on the damages that may be awarded to the plaintiff.

In Lynn Noyes v. Kelly Services, the Ninth Circuit Court of Appeals considered whether a former software developer at Kelly Services could maintain a cause of action for reverse religious discrimination against her former employer. This category of claim had historically been very rare, but was addressed in this May 29, 2007 decision.

On February 6, 2007, the Ninth Circuit Court of Appeals issued a ruling in a closely watched gender discrimination case brought by six female employees against Wal-Mart, the nation's largest employer.  The six plaintiffs allege that, despite having equal or better qualifications, they were paid less than male employees for the same work and that they received fewer promotions to store management positions than their male coworkers.

Click here to view a PDF copy of the document.

On September 7, 2005, a California Court of Appeal, in Ross v. Ragingwire Telecommunications, Inc., held that a company may refuse to employ an individual because he or she is using marijuana in accordance with the Compassionate Use Act of 1996.

On March 30, 2005, the United States Supreme Court decided the case of Smith v. City of Jackson, Mississippi, expanding the theories of recovery available to plaintiffs in age discrimination cases. The Court held for the first time that the "disparate impact" theory of recovery, announced in Griggs v. Duke Power Co., 401 U.S. 424 (1971) for cases brought under Title VII of the Civil Right Act of 1964, is also available under the Age Discrimination in Employment Act ("ADEA").

In the recently-enacted American Jobs Creation Act of 2004 (P.L.108-357), a new subsection was added to the Internal Revenue Code for the purpose of ensuring that plaintiffs who win awards or settlements in certain civil rights cases and other lawsuits do not pay income tax on the part of the recovery paid to attorneys.