Fisher Taubenfeld LLP

New York Employment Law Blog

Workplace discrimination cases unlikely to see trial

A number of cases dealing with the legality of firing workers based on their gender identities and sexual orientations have been heard by the Supreme Court. The difficulty of litigating claims may be more important to New York workers than the legality or illegality of certain actions. According to a study that looked at roughly 1,800 federal lawsuits from 1988 to 2003, only around 6% of civil rights actions make it to trial. The study included cases alleging race, disability and age discrimination, as well as sex discrimination.

Of the cases in the study that went to trial, only around 33% were won by the plaintiff. Some recent decisions by the Supreme Court have made it more difficult for the plaintiff to bring and win a civil rights action. This is despite there being strong evidence of sex discrimination in the working world generally. According to the most recent U.S. Census Bureau data, women make 80 cents for each dollar men make. University research indicates that men are more likely by 25% to get a raise when they ask.

Why sexual harassment investigations may be unsatisfactory

When employees in New York and throughout the country report sexual harassment in the workplace to their human resources department, they may be dissatisfied with the outcome. They might go weeks without hearing anything further, and nothing may happen to the perpetrator. They might feel they are facing retaliation. This is true even though awareness of sexual harassment at work is on the rise. According to the Equal Employment Opportunity Commission, sexual harassment claims went up more than 13% in 2018.

There are a number of reasons HR may fail to adequately address the issue. For example, one HR manager says that although she investigated a harassment claim, found it valid, and reported it to people higher up, they felt it would be easier to recruit lower-level employees than replace the higher-level employee who was reported. Ideally, the HR department would stay in regular communication with the employee, but this does not always happen. There should be a timeline for the investigation, and HR should demonstrate empathy toward the employee.

Salary threshold for exempt workers to rise

More workers in New York will be eligible for overtime payments under a Labor Department rule revision scheduled to go into effect on Jan. 1, 2020. Previously, the salary threshold required to consider a worker "exempt" from the provisions of the National Labor Relations Act was $23,660 annually. In addition, exempt workers must have a significant amount of autonomy or management authority in their positions. The rules finalized on Sept. 24, 2019, will make around 1.3 million more workers across the country eligible for overtime pay. The salary threshold will be raised to $35,568.

While this is a significant increase, it is substantially less than the change proposed under the Obama administration. The previous proposal would have raised the threshold to around $47,000 annually, making around 3 million additional workers eligible to receive overtime pay when they work over 40 hours each week. Widespread concern has been directed at companies that give management titles and responsibilities (including many workers at fast-food restaurants and retail stores) while paying low salaries and classifying these employees as exempt. In some cases, exempt management workers are required to work so many hours that they would make more receiving the federal minimum wage.

UPS agrees to settle pregnancy discrimination charge

The Pregnancy Discrimination Act prohibits employers in New York and around the country from discriminating against pregnant workers. On Sept. 17, the Equal Employment Opportunity Commission announced that United Parcel Service, Inc., has agreed to pay $2.25 million for violating the provisions of the 1978 law. EEOC investigators concluded that UPS failed to offer pregnant employees the opportunity to perform light duties that would have allowed them to continue working.

According to the EEOC, UPS has entered into a conciliation agreement to settle the matter. The money will be paid to workers who suffered financial losses between 2012 and 2014 because they were not offered accommodations required under federal law. Their compensation reflects the difference between the short-term disability payment they received and what they would have earned had they been able to continue working.

Types of relief available from the EEOC

Workers in New York or anywhere else who are mistreated by their employers may be entitled to due process. A complaint filed with the Equal Employment Opportunity Commission (EEOC) may help a person obtain relief. The EEOC may order that an individual is entitled to compensatory damages or reinstatement to his or her former position. In some cases, individuals may be given a financial award and reinstated to their most previous position within an organization.

Financial damages could help a person make up for lost wages or back pay related to discriminatory conduct on the part of an employer. People who are terminated and seeking back pay must make a good faith effort to find new employment to mitigate their losses. Companies may also be required to provide training or take other steps to correct whatever mistakes led to an individual being harassed or discriminated against. If an employee was bypassed for a job, the EEOC may require that this person be given the position or one similar to it.

STEM careers employing more women, still room to improve

Researchers examined four data gathered over the course of four years and published a report indicated that the number of women in STEM careers is increasing, but there are still disparities in employment. The acronym STEM refers to science, technology, engineering and math, career areas that have traditionally seen more men than women. Employers in New York and around the country are required by law to provide a workplace free of discrimination, and the data in the report might help to shed light on discriminatory practices in STEM careers.

The report was published in Cell Stem Cell, a scientific journal. The study included data from 541 organizations in 38 countries across North America and Europe. According to one of the study's co-authors, the data indicate that progress is being made, but there is still significant room for improvement. Among the organizations involved, the average grade was 4.0, meaning that women made up 40% of the total speakers, instructors and students at the organization.

Does the whistleblower stigma have you staying quiet?

When wrongdoing takes place at work, anyone could have a difficult time knowing the best way to handle it. The exact options available could depend on the severity of the issue. For instance, if someone takes your lunch from the breakroom refrigerator, you likely do not need to contact the authorities. On the other hand, if you believe that your employer or others within a company are carrying out illegal acts, you may feel the need to take drastic action.

Of course, like many other New York workers, you may worry that you will face negative consequences for reporting wrongdoing. In fact, you may hear the term "whistleblower" and feel an intense negative stigma behind it. However, being a whistleblower is not necessarily a bad role.

Women continue to face harassment, discrimination at work

The MeToo movement drew attention to sexual harassment in a range of major New York industries, including entertainment, media and tech. Sparked by the revelations of high-flying Hollywood producer Harvey Weinstein's harassment of actresses, MeToo encouraged women to tell their stories of sexual harassment on the job and hold perpetrators publicly accountable. Many activists hoped to see long-term results that could make the workplace more inclusive and safer for all. However, some study results indicate that the aftermath of MeToo is not leading to less harassment but to new forms of discrimination against women.

A survey conducted by University of Houston researchers asked men and women in a number of industries to respond to questions about workplace sexual harassment. The survey was carried out twice, once in 2018 and once in 2019 after the widespread attention generated by MeToo had dissipated from its high-profile media focus. According to the survey results, 27% of men said that they planned to avoid meeting alone with female co-workers in order to avoid potential allegations of sexual harassment. Women are the victims once again of this behavior, however, as indicated by other responses by male participants. Over 20% said that they were less eager to hire women for jobs with close personal interaction, and 19% were hesitant to hire women they deemed "attractive."

Major gaming company settles discrimination suit

The company behind one of the most popular video games in the world has settled a class-action suit alleging gender discrimination. New York gamers might already be familiar with Riot Games or its incredibly popular game, League of Legends. One former employee of Riot Games and one current employee filed a lawsuit alleging that the company blocked career advancement and denied them equal pay because of their gender. The COO of Riot was suspended at the end of 2018 after there were reports that he hit employees in the genitals and farted on them.

The gender discrimination lawsuit alleged that this sort of "bro culture" behavior was the norm at the company and that misogyny and sexual harassment were normalized at Riot. The company announced that a settlement had been reached in August of 2019; the company said it believed it was in a strong position for litigation but chose to settle to move past the dispute.

How do New York's new laws help victims of sexual harassment?

The sad fact is that sexual harassment is far more widespread than it should be. For proof, you don't need to look any farther than the many victims who shared their stories as part of the recent #MeToo movement. The movement has resonated throughout the United States and across the globe, and it has forced lawmakers to act.

In New York, the #MeToo movement has inspired the recent passage of tough new harassment laws. As the New York Daily News reported, these laws could mean the end of handsy politicians. They also introduce some important changes that should help people throughout the state, not just the staffers who endured sexual harassment in Albany.

  • Super Lawyers 2018
  • New York County Lawyers Association
  • NYSBA
  • New York City Bar
  • NELA - National Employment Lawyers Association

Fisher Taubenfeld LLP | 225 Broadway | Suite 1700 | New York, NY 10007 | Toll Free: 866-654-0343 | Phone: 646-741-3490 | Fax: 212-505-2001 | New York Law Office Map