Category Archives: Discrimination

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Second Circuit Finds EEOC Investigation Not Subject to Review

Recently, the United States Court of Appeals for the Second Circuit held in the matter of Equal Employment Opportunity Commission (“EEOC”) v. Sterling Jewelers Inc. (“Sterling Jewelers”), that the District Court erred by considering the sufficiency of the EEOC’s pre-suit investigation instead of simply considering whether an investigation occurred.  … Continue Reading

District Court for the EDNY Denies Motion to Dismiss Selective Enforcement Gender Discrimination and Retaliation Claims Related to Enforcement of Employer’s Hair Policy

In Visecchia v. Alrose Allegria LLC, a recent decision from the United States District Court for the Eastern District of New York, the court granted in part and denied in part a motion to dismiss claims of gender discrimination and retaliation brought by a hotel chef against his former employer alleging that the employer selectively … Continue Reading

California Supreme Court Makes It Harder For Prevailing FEHA Defendants To Recover Their Costs

Under section 1032(b) of the California Code of Civil Procedure, “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding” unless some statute expressly says otherwise.  It has been California’s rule for over a decade that this provision allowed victorious defendants in cases under the Fair Employment … Continue Reading

The Supreme Court Decides Mach Mining LLC vs. EEOC: A “Win” For Employers?

Last week, in Mach Mining, LLC v. EEOC, the Supreme Court unanimously ruled that Title VII authorizes judicial review of the EEOC’s efforts to satisfy its statutory duty to conciliate before filing suit against an employer.  In the simplest of terms, Title VII requires that the EEOC try to remedy unlawful employment practices through “informal … Continue Reading

Supreme Court Crafts Modified McDonnell Douglas Analysis to Handle Pregnancy Discrimination Claims

On March 25, 2015, the Supreme Court of the United States issued a long-awaited decision in Young v. United Parcel Service, Inc., wherein the Court vacated the Fourth Circuit’s decision to affirm UPS’s successful motion for summary judgment.  The plaintiff, Peggy Young, had worked as a part-time driver for United Parcel Service (“UPS”).  Part of … Continue Reading

Supreme Court of New Jersey Adopts Faragher/Ellerth Affirmative Defense

On February 11, 2015, the Supreme Court of New Jersey expressly adopted the test created by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The Faragher/Ellerth defense provides an employer with an affirmative defense to … Continue Reading

Appellate Division Panel Issues Ruling Broadly Interpreting New York State Human Rights Law

On January 14, 2015, in a case of first impression, the New York Supreme Court, Appellate Division, Second Department held that an employee can sufficiently demonstrate his membership in a protected class by virtue of his association with another person – in this case, his wife.  In Jeffrey Chiara v. Town of New Castle, 2015 … Continue Reading

Employer Permitted to Use “After-Acquired” Evidence at Discrimination Trial

In Weber v. Fujifilm Medical Systems USA Inc., et al., case numbers 13-4891 and 14-0206, decided on October 9, 2014, the U.S. Court of Appeals for the Second Circuit held that a former executive’s employer could use “after-acquired” evidence – evidence of an employee’s misconduct during the period of employment which the employer discovers after … Continue Reading

Reminder: New York Interns Are Now Protected Under Both the State and City Human Rights Laws

Following New York City Mayor Bill De Blasio’s endorsement of an amendment to the New York City Human Rights Law (“NYCHRL”) extending the statute’s anti-discrimination and harassment protections to interns earlier this year (as reported here), New York Governor Andrew Cuomo recently signed into law similar legislation modifying the New York State Human Rights Law … Continue Reading

Second Circuit Finds Possible Pretext in Vague Justification for Non-Transfer

On July 14th, the U.S. Court of Appeals for the Second Circuit vacated an award of summary judgment for the defendants in Abrams v. Department of Public Safety, State of Connecticut, et al., Case No. 13-111, holding that statements concerning an employee’s “fit” for a position could give rise to an inference of discrimination.… Continue Reading

DOL Proposes to Amend FMLA Definition of “Spouse” to Include Same-Sex Marriages

The U.S. Department of Labor has proposed amending the regulatory definition of “spouse” under the Family and Medical Leave Act to expressly include individuals in same-sex marriages. In a Notice of Proposed Rulemaking published on June 27, 2014, the DOL proposed the revision in light of the recent United States Supreme Court decision in United … Continue Reading

Undocumented Workers May Pursue Claims Under California’s FEHA, So Says The California Supreme Court

On June 26, 2014, in Salas v. Sierra Chemical Co., the California Supreme Court held that undocumented immigrants who fraudulently obtained employment still may pursue retaliation and discrimination claims under the California Fair Employment and Housing Act (FEHA).  In its decision, the Court also found that the affirmative defenses of unclean hands and after‑acquired evidence, … Continue Reading

The Supreme Court’s Ruling in Hobby Lobby that Closely Held, For-Profit Companies Should Receive Religious Exemptions From ObamaCare’s Conception Mandate Likely Will Have Little Practical Impact Immediately in the Employment Arena

On June 30, 2014, the US Supreme Court decided the case of Burwell v. Hobby Lobby Stores, Inc. in a 5-4 decision along partisan lines.  The Court ruled that closely held, for-profit companies are entitled to certain religious freedom protections from generally applicable regulations that violate the sincerely held religious beliefs of their owners.  Specifically, … Continue Reading

New EEOC Guidelines Regarding Employers’ Obligations With Respect to Background Checks and Accommodation of Religious Dress and Grooming Practices

The Equal Employment Opportunity Commission (“EEOC”) recently announced new guidelines that may impact the way employers conduct background checks and accommodate religious dress and grooming practices.… Continue Reading

Expected Executive Order Protecting LGBT Employees has Implications for Employers

The White House announced last week that President Barack Obama is preparing to issue an executive order prohibiting government contractors from discriminating against employees or job applicants on the basis of sexual orientation or gender identity.  Federal contractors are already barred from discriminating on the basis of race, religion, gender or national origin.  The expected … Continue Reading

Equal Pay Issues Addressed by President Obama on “National Equal Pay Day,” When He Signed An Executive Order and Presidential Memorandum Affecting Federal Contractors

On April 8, 2014, President Obama signed a Presidential Memorandum that will require federal contractors and subcontractors to provide to the U.S. Department of Labor compensation data based on their employees’ sex and race.  The President also signed that day an Executive Order preventing federal contractors from retaliating and discriminating against employees who discuss their … Continue Reading

Employment Non-Discrimination Act Passes its First Test in the Senate

The U.S. Senate recently passed the Employment Non-Discrimination Act (“ENDA”) (S. 815), a bill which would prohibit employers with 15 or more employees from discriminating against individuals on the basis of their sexual orientation or gender identity.  The ENDA passed by a vote of 64-32, but faces a tenuous future as it heads to the … Continue Reading

Proposed New York Law Would Extend State Anti-Discrimination Protections to Unpaid Interns

A new bill introduced in the New York State Senate would extend many of the protections of the New York State Human Rights Law (NYSHRL) to unpaid interns.  Among other things, the bill would make it illegal for employers to “refuse to hire, employ or to discriminate against an intern” based on any of the … Continue Reading

New York Court of Appeals Places Burden on Employer to Plead that Employee Seeking Indefinite Leave Cannot Satisfy the Essential Requisites of the Job

The New York Court of Appeals recently overturned the dismissal of an employee’s discrimination claim under the New York City Human Rights Law (“NYCHRL”), while at the same time upholding the dismissal of the employee’s disability claims under the New York State Human Rights Law (“NYSHRL”).  In doing so, the Court of Appeals emphasized the … Continue Reading
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