Harassment, Discrimination and Retaliation

New York City Mayor Bill de Blasio recently signed into law an amendment to the New York City Human Rights Law (the “NYCHRL”) prohibiting discrimination on the basis of uniformed service.  The amendment takes effect on November 19, 2017.

The term “uniformed service” is defined in the amendment to mean current or prior service in:

The United States Army, Navy, Air Force, Marine Corps, Coast Guard, the Commissioned Corps of the National Oceanic and Atmospheric Administration, the Commissioned Corps of the United States Public Health Services, Army National Guard, or the Air National Guard;

The organized militia of the State of New York;

Any other service designed as part of the “uniformed services” pursuant to the Uniformed Services Employment and Reemployment Rights Act;

Membership in any reserve component of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard; or

Being listed on the state reserve list or the state retired list as described in certain military laws or the state equivalent.

The amendment gives both veterans and active military personnel all protections afforded under the NYCHRL, including safeguarding against employment discrimination.  Specifically, these protections include representing that a position is not available when it actually is, refusing to hire or employ, or to bar or discharge from employment, someone in the uniformed services, or to discriminate against uniformed service members in the compensation, terms, and conditions of their employment.  Likewise, the amendment prevents employers from discriminating against uniformed service members in matters of public accommodation, housing, real estate, and lending.  The Chair of the New York City Commission on Human Rights, Carmelyn P. Malalis, cogently stated that: “Veterans and active military and other uniformed personnel routinely put their lives on the line for people in this country.  The least we can do is guarantee them the same freedom, respect and opportunities as everyone else. This law will give veterans and active military and other uniformed personnel direct protection under the New York City Human Rights law.”  Please click here to view the full article.

New York based employers are encouraged to review their human resources and hiring policies to ensure compliance with the amendment to the NYCHRL prior to its November 19, 2017 effective date.

Thinking about tying one on this year to get into the holiday spirit, or about finally asking out that cute girl or guy from the office at the holiday party after the spirit moves you?  Think again!  With the holiday season upon us, employers and employees would be well-served to review their Employee Manuals’ harassment, discrimination and social media policies to avoid the embarrassment, and pricey lawsuits that pop up at this time of year following otherwise festive celebrations.

Remember, just because an event takes place off premises, or in the office after hours, does not mean that the employment relationship and policies that attach do not follow everyone to the party.  Employers are urged to be proactive to avoid claims of harassment and discrimination, reminding managers and employees to be on their best behavior.  The old adage, “If you would not say it to your mother, don’t say it,” is still a fair yardstick to apply to nearly anything employees and managers might say to one another, in the office or at the holiday party.  Remind all to be courteous and mindful of the company’s policies, including social media policies, at all times.  Videos or pictures of drunken or inappropriate behavior from the holiday party posted on social media can only lead to trouble and discomfiture.

The chief source of mischief at any holiday party – free flowing libations – should be monitored closely to ensure the party does not devolve into a bacchanal.  Company sponsored events place ultimate responsibility for employee behavior on the company.

Hiring an outside vendor to tend bar – with its own liability insurance and procedure to monitor guests’ alcohol intake – is an excellent suggestion.  Avoid at all costs the serve it yourself bar, or employees pouring drinks for each other – both recipes for excess.  If the party takes place at an outside venue, consider providing drink vouchers for a maximum of number of drinks to employees, closing the bar an hour before the party ends and providing coffee and dessert to stay or to go.  Offering taxis, buses or designated drivers to get people home safely are also excellent recommendations.

Importantly, do not discriminate.  Make the party secular, nondenominational and welcoming to all, but not mandatory.

Holiday celebrations can be great opportunities for employees and employers to connect on a social level, talk about things other than work and boost morale.  Don’t let the opportunity slip away.  Happy Holidays!

The Second Circuit recently invoked a 17th century fable in reviving an employee’s retaliation claim against her employer even where the employer had no retaliatory intent.  In Vasquez v. Empress Ambulance Service, SDNY, 15-CV-3239, the Plaintiff, Andrea Vasquez, an Emergency Medical Technician, alleged that she was subjected to sexual advances by her dispatcher in part by sexually explicit text messages.  Vasquez complained to her employer, who immediately launched an investigation.  Unbeknownst to Vasquez or her employer, the dispatcher manufactured false text messages which showed that Vasquez was the aggressor.  Indeed, one of the messages displayed a “racy photo” that Vasquez allegedly sent the dispatcher, though the photo did not contain Vasquez’s face.  The employer credited the dispatcher’s story, and Vasquez was fired.  She subsequently commenced a lawsuit.

Southern District Judge Naomi Reice Buchwald dismissed Vasquez’s retaliation claims, finding that the employer could not have retaliatory intent because the employer was unaware that the text messages were manufactured.  On August 29, 2016, the Second Circuit reversed, citing a 1679 fable authored by Jean de La Fontaine, entitled the “Monkey and the Cat”.  According to the fable, a mischievous monkey lured an unsuspecting cat to fetch chestnuts from a burning hearth under the auspices that they will share the chestnuts.  The monkey, however, stole the chestnuts, leaving the cat with nothing but burnt paws.  In citing the fable, the Second Circuit held, “The employer plays the credulous cat to the malevolent monkey and, in doing so, allows itself to get burned – i.e., successfully sued”.  The Second Circuit held that an employer exposes itself to liability where it automatically credits one employee’s accusations over another, and refuses to consider contrary evidence easily ascertained.  This case serves as a lesson to employers in New York to conduct careful investigations of any claims of employee misconduct, lest they be left with burnt paws.


On Wednesday, March 30, five players for the U.S. women’s soccer team officially joined the national fight for equal pay by submitting a wage discrimination complaint to the Equal Employment Opportunity Commission (“EEOC”).

The players filing the complaint include the most well-known female soccer players in the world — Carli Lloyd, Becky Sauerbrunn, Alex Morgan, Megan Rapinoe, and Hope Solo.  With such noteworthy names attached to the EEOC filing, it has already garnered significant media attention, bringing the equal pay issues confronted by women across the country to the forefront.  As goalkeeper Hope Solo explained:

“In this day and age, it’s about equality. It’s about equal rights. It’s about equal pay. We’re pushing for that. We believe now the time is right because we believe it’s our responsibility for women’s sports and specifically for women’s soccer to do whatever it takes to push for equal pay and equal rights. And to be treated with respect.”

The decorated U.S. women’s soccer team has plenty of accomplishments to brag about, including three World Cup championships, four Olympic gold medals, and generating nearly $20 million more in revenue than the men’s U.S. Soccer team in 2015.  However, the EEOC complaint alleges the women earn significantly less than their male counterparts for identical work.  For example, the EEOC filing cites that while the men would likely earn $263,320 each for winning twenty exhibition games in a season (the minimum required to be played in one year), the women would earn only $99,000 for the same triumph.  In addition, the men each earn between $5,000 and $17,625 for every additional game played beyond the minimum of twenty exhibition games, while the women earn nothing if they play more than twenty games in a season.

The EEOC complaint represents the first step in the litigation process to pursue the women’s discrimination claim.  From there, the EEOC will commence an investigation to determine whether there is probable cause to believe discrimination has occurred.  Both sides are required to cooperate with the EEOC in good faith in its investigation.  If the EEOC finds such cause, it may file a complaint for discrimination in an appropriate court on behalf of the women, or it can issue a “Notice-of-Right-to-Sue” letter, which would allow the women to file a formal court action for discrimination within ninety days.

The complaint filed by these high profile women only serves to highlight the need for further dialogue and discussion concerning equal pay for equal work.  We will post on future developments in this EEOC case as they occur.

Over a span of two weeks at the end of last month, the Third Circuit Court of Appeals issued two key opinions concerning oft-scrutinized areas of employment law — rights attendant to employer-employee relationships and application of the Fair Labor Standards Act (“FLSA”).

In the first of those cases, Fausch v. Tuesday Morning, Inc., the Third Circuit adopted and utilized the Darden test to assess whether a temporary employee, who was hired, paid and assigned to work at a certain retailer through a temporary staffing agency, had an employment relationship with the defendant-retailer that could give rise to the employee asserting Title VII discrimination claims.  In a 2-1 decision, the Court vacated a lower court denial of the plaintiff-temporary employee’s Title VII discrimination claims and remanded the matter, ruling that there was sufficient evidence in the record to conclude that the defendant-retailer was the plaintiff’s “joint employer” along with the staffing agency.  In reaching this conclusion, the Court analyzed the relationship between the parties under common-law agency principles, an analysis commonly referred to as the “Darden test.” The Darden test, first set forth by the United States Supreme Court in Nationwide Mutual Insurance Co. v. Darden, demands that courts generally assess the level of control and supervision that an employer exercises over the employees in question through a multi-factor, fact-intensive inquiry. For example, as the Court of Appeals noted in Fausch, the most important factors of the Darden test include “which entity paid the [employees’] salaries, hired and fired them, and had control over their daily employment activities.”  In applying the Darden test to the facts at hand, the Court concluded that while the plaintiff was paid by the staffing agency, “he worked under the direct supervision and control” of the defendant-retailer who indirectly paid the plaintiff’s wages, had the power to “eject” the plaintiff from its store and provided the plaintiff’s “assignments, directly supervised him, provided site-specific training, furnished any equipment and materials necessary and verified the number of hours he worked on a daily basis.” Such “joint employer” status subjected the defendant-retailer to discrimination claims from the plaintiff-temporary employee in the same way as a traditional employee, thereby equipping temporary employees in the Third Circuit with an expanded set of legal rights in the workplace.

Less than one week after the Fausch ruling, in another split decision in Babcock v. Butler County, the Third Circuit adopted the “predominate benefit test” to determine whether an employer must compensate a prison guard for 15 minutes of unpaid time during his/her one hour meal break. In affirming the lower court’s dismissal of the plaintiff’s FLSA claims, the Court ruled that, notwithstanding minor restrictions on the plaintiff’s meal break, such as requirements that the employee obtain permission before leaving the premises, remain in uniform, remain “in close proximity to emergency response equipment” and otherwise remain “on call to respond to emergencies,” the employer was not obligated under the FLSA to compensate the plaintiff for the unpaid time.  In so holding, the Court applied the predominate benefit test and assessed, by weighing the benefits each party received from the meal break, whether the employee’s time during the meal break “is spent predominately for the employer’s benefit or for the employee’s.”  The Court compared the restrictions on the plaintiff’s meal break to a number of other considerations, including that the plaintiff could leave the premises with permission, could eat away from his/her post, and, most compellingly, that the existence of a collective bargaining agreement between the parties provided for “a partially-compensated mealtime and mandatory overtime pay if the mealtime is interrupted by work.” Weighing these factors, the Court concluded that, on balance, the plaintiff was the primary beneficiary of the break and the 15 minutes of unpaid time was therefore not compensable time under the law.

Employers and employees should take note of these recent developments as these decisions will certainly impact employer-employee relationships throughout the Third Circuit going forward.