New York Employment Lawyer Blog

The EEOC recently settled a lawsuit that charged one of the country's largest retailers, Sears Roebuck & Co with race, age, sex discrimination and retaliation against Mary Johnson, an African-American female employee. The settlement provides for Sears to pay $100,000 as well as take action to prevent and handle future instances of discrimination.

The EEOC filed suit in September 2010, alleging that Johnson was passed over for a promotion to supervisor several times beginning in 2007 while less experienced, younger, white males were promoted. Johnson worked in loss prevention at several Sears stores in Oklahoma City from 1982 until she was terminated in March of 2010. The EEOC also alleged that Sears retaliated against Johnson for filing an EEOC discrimination charge and participating in the EEOC's investigation by worsening her working conditions.

In a consent decree with the EEOC, Sears has agreed to pay Johnson $100,000 and take specific action to prevent future discrimination. It will have to post anti-discrimination notices to all employees, hand out its anti-discrimination policy and provide training on the subject to its employees. Barbara Seely, the regional attorney at the EEOC's St. Louis District Office, stated "Corporate America must be more vigilant in guarding against discrimination and retaliation or risk action and exposure by the EEOC."

The Age Discrimination in Employment Act (ADEA) makes it illegal for an employer to discriminate against employees who are at least 40 years old. The Civil Rights Act of 1964 prohibits discrimination based on race, color, religion and national origin. Both acts cover discriminatory practices in all aspect of employment including but not limited to hiring, firing, compensation, recruitment, training, pay, retirement plans, disability leave, terms and conditions of employment as well as health care benefits. Under both laws, it is also illegal to retaliate against an individual for filing a discrimination charge or participating in an investigation.

The EEOC reported that in 2010, 36% of all discrimination claims filed also alleged some type of retaliation by the employer. Retaliation at the workplace is when you take adverse action against an employee for engaging in "protected activity." Protected activity includes but is not limited to filing a discrimination claim with the EEOC or a state or local agency, filing a discrimination complaint with the employer, or supporting a co-worker's complaint.

Although discrimination based on age, sex, and race are illegal at the workplace, it is a major problem in both small and large companies. If one of your employees complains or files an EEOC charge alleging discrimination, make sure he or she is not retaliated against. In this day and age, take every complaint seriously and promptly investigate the matter. It is essential to have an employee handbook with your company's policy and complaint mechanism for discrimination. Make sure every employee has a copy and signs a statement that they have read it and understood it. It is not enough just to have a company policy. It is also crucial to train your managers and supervisors on how to follow and carry out your company's policy on discrimination. Our Discrimination Attorneys have prepared policies and handbooks for many companies as well as conducted training seminars to teach supervisors and managers on how to deal with discrimination. If your company doesn't have a discrimination policy or handbook call our Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you avoid and minimize the potential cost of employment discrimination.

Continue reading "Six Figure Settlement of Age, Sex, and Race Discrimination Complaint by African American Female Employee at Sears" »

Telecom giant AT&T just settled an age discrimination lawsuit. The Company was charged with discriminating against over 50,000 retired AT&T workers who had retired under several retirement and severance programs because it refused to rehire them. The settlement provides for a three year consent decree and now enables former employees to apply for re-employment.

The Age Discrimination in Employment Act ("ADEA") makes it illegal for employers to discriminate against employees and job applicants over 40 years of age because of their age regarding any term or condition of employment including hiring, firing, layoff, promotion, compensation, benefit, and training. The federal law also makes it illegal to retaliate against an individual for complaining about age discrimination or for filing charges, testifying or participating in such a investigation, proceeding or litigation. Our attorneys have represented many clients who were victims of age discrimination and suffered from loss of work and job opportunities. If you believe you have been discriminated against because of your age, our lawyers can help protect your rights in the workplace.

The EEOC had filed the age discrimination lawsuit against AT&T and its subsidiaries in 2009 alleging that it had discriminated against a class of retired workers by not allowing them to be reemployed just because they retired under early retirement plans. The government agency had charged that this resulted in violating the anti-discrimination laws because a disproportionate number of older workers ended up not having the same
opportunity to apply for re-employment.

The lawsuit was filed in the Southern District of New York on behalf of John Yates, who was 57 years old at the time, and other retired workers. The class of workers all participated in retirement plans such as the Voluntary Retirement Incentive Program, the Enhanced Pension and Retirement Program and were denied reemployment.

According to the three year settlement decree, the Company will have to stop any prohibitions it has against rehiring workers who retired under such retirement programs. The decree also requires the telecommunication organization to update its databases so that former workers are not "blocked" from being rehired and certify every year in writing that it is following the terms of the decree. The decree states that it will "not maintain any policy prohibiting the rehiring of employees who [resigned] under the relevant retirement programs" and there will be no retaliation against anyone involved in the litigation. Anna M. Pohl, a trial attorney at the EEOC's New York district office, stated that "many former employees who took an early retirement package years ago still need work, and will now have an equal opportunity to apply for new jobs [with their former employer]."

The Company's discriminatory policy had the effect of putting over 50,000 workers out on the street relying on their savings and unemployment insurance to get by. Age discrimination not only affects older individuals but it can also consequentially impact our society and economy. Many companies lay off their older senior people and hire younger workers who they pay less. Many older workers have trouble finding similar jobs and end up taking jobs with substantially less pay and lower positions. With longer life spans, increased health care costs, and depleted savings, most people cannot afford to retire. When a qualified unemployed person is discriminated based on his or her age, he or she then relies on unemployment insurance and government assistance which then affects our economy.

If you have been negatively impacted because of your age, our experienced Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 can help you.

Continue reading "AT&T's Policies Violated Age Discrimination Laws For Failure to Rehire Retirees" »

New Jersey recently passed a bill that makes it illegal for employers to specify in their job listings that unemployed persons will not be considered for hiring. New Jersey's legislative ban on blatant and open discrimination against the unemployed, whether in print or online, is the first of its kind in the US but probably not the last. If you violate the bill, you face a penalty of $1,000 for the first offense and $5,000 for subsequent offenses.

The New Jersey Statute, N.J.S.A. 34:8B-1 makes it illegal for an employer or an employer's agent to "publish, in print or on the Internet" any job postings that provide that the job qualifications include current employment, that unemployed applicants will not be considered, or that only employed job applicants will considered for the position. The New Jersey law becomes effective June 1, 2011. The statute does not require an employer to consider hiring an unemployed job applicant.

New Jersey Representative Celeste Riley, who sponsored the bill, said she became aware of employers discriminating against the unemployed when she saw an online job ad that stated that jobless candidates should not apply. Riley's own district has one of the highest rates of unemployment in New Jersey. Riley has stated that although you "can't control people's behaviors," New Jersey can at least send a message to employers that this practice is unacceptable.

In February of this year, the EEOC held hearings to investigate and determine whether this type of discrimination against unemployed persons seeking jobs is unlawful under federal discrimination laws. Helen Norton, Associate Professor at the University of Colorado School of Law, has found that employers as well as staffing agencies have advertised jobs ranging from electric engineers to restaurant and grocery managers to mortgage underwriters, all seeking only currently employed individuals. Fatima Gross Graves, Vice President of Education and Employment of the National Women's Law Center, has stated that discrimination against the jobless "may well act as a counterweight" against the governments' effort in fighting unemployment. Gross Graves also testified that this type of discrimination disproportionately affects women, especially older women in non-traditional occupations.

The EEOC hearing also found that this type of discrimination can have a disproportionate effect on racial and ethnic minorities. Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, testified that African-Americans, Hispanics and Native Americans have higher unemployment rates. The rate is also higher for college educated Asian workers. Assistant Secretary of Labor for Policy, Dr. William Spriggs, testified that according to employment statistics, African Americans and Hispanics are overrepresented among the unemployed. He also testified that older applicants and persons with disabilities are also more likely to be affected if employers place job status restrictions in hiring.

Many people today are unemployed, not because of poor work performance, but because the economy suffered, restructuring, layoffs, or because they took time off to take care of kids. Many people who have been unemployed for a long period of time simply have not found another job, not because they didn't try, but because they just can't find another job. It is an outrage that blatantly discriminatory job ads against the unemployed are being seen across the country. This is being referred to as "you have to have a job to get a job." About 4.4 million people, or 40% of the country's unemployed, have been without a job for over a year. For every job opening, there are on average 5 job applicants. Unfortunately, people who have been unemployed for a long period of time have a much more difficult time finding another job.

If this vicious cycle of discriminating against the jobless continues to grow, it could potentially undermine all the recovery efforts the government has made in the past few years. This type of discrimination can also have a disparate impact on women, minorities, and persons with disabilities who have a disproportionately higher rate of unemployment. For example, where such a restrictive job ad rules out a high number of women from even applying for the job, it is a violation of of both Title VII and the Civil Rights Act of 1964. Basically, it is a way for employers to circumvent all the civil rights progress that many in this county have fought long and hard to attain.

Georgia Congressmen Hank Johnson recently introduced the Fair Employment Act of 2011 which is a bill still in committee. If passed, it would make it illegal for employers to discriminate or lower compensation because of a person's employment status.

If you or someone you care about has suffered from any type of discrimination at the workplace, including race, gender, pregnancy, age, sexual orientation, disability, national origin, or religion, call our experienced Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss your possible case.

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Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Source:

EEOC Meeting of February 16, 2011

Q: I am a 55 year old female who has been a long term employee with an excellent record. Recently, I was laid off and replaced by a young, less inexperienced female. I believe my company fired me because of my age because they have recently replaced several older workers with young people. What can I do?

Our Age Discrimination Employment Attorneys at Villanueva & Sanchala have been closely monitoring age discrimination lawsuits which have been rapidly rising over the past decade. Many employers are under the misguided notion that they can decrease their costs by replacing their older, experienced work force with young, cheap labor. Employers think that health care and ERISA related pension costs are higher for an older work force which is not always true.

The EEOC recently brought a lawsuit concerning age and sex discrimination against the Port Authority of New York and New Jersey ("Port Authority"). The EEOC has alleged that the Port Authority fired 2 underpaid female attorneys, 55 and 57 years old, because of their age and replaced them with younger, less experienced attorneys. The complaint also alleges that the Port Authority does not pay its female attorneys in non-supervisory jobs the same as it pays its males having similar experience. The EEOC seeks to stop the Port Authority from discriminating based on age and pay, seeks back wages, and reinstatement of jobs.

The Port Authority is a bi-state agency which runs several of the largest transportation hubs in the Northeast area. A Port Authority representative has said "We're bringing in younger attorneys" and "We're going to remake this agency with young, fresh faces."

The Age Discrimination in Employment Act ("ADEA") prohibits age discrimination in employment. The EEOC has stated that the "ADEA prohibits the misguided notion that an employer can invigorate its work force by firing older workers and replacing them with younger workers." If your employer is covered under the ADEA, he or she cannot discriminate against you with respect to any condition or privilege of employment, including but not limited to hiring, promoting, firing, layoff, compensation, benefits, training, or job assignment. The ADEA also makes it illegal for your employer to retaliate against you if file an age discrimination claim or participate in a claim.

Continue reading "Age Discrimination in New York & New Jersey Q&A" »

It is startling to see how prevalent age discrimination is in today's workplace. Not only has the EEOC reported an increase in the number of age discrimination complaints filed, there are constant reports of age discrimination in the New York Metro Area including allegations that the news director at WPIX, local television channel 11, illegally fired older employees including anchors Karen Scott, Kaity Tong and Sal Marchiano. Other recent cases include Long Island Firefighters filing a class-action age discrimination lawsuit against the Villages of Bayville, Mill Neck and Centre Island for differential treatment regarding benefits. That case was settled and each firefighter in the lawsuit may receive approximately $200,000.00. Previously, Eaton's Neck in Long Island's Suffolk County settled a similar case for over $200,000.00. Just earlier this week, seven former Rensselaer Polytechnic Institute employees filed an age discrimination lawsuit against RPI and allege that the layoffs targeted older workers.

Anyone can be a victim of age discrimination - it knows no boundaries as to race, gender, religion, industry or geographic area. Age discrimination can occur at any point in the employment relationship from application, hiring, discipline and termination. Some common examples of age discrimination include -

1. Your prospective employer asks your age on an employment application (it is surprising how many employers still make this mistake and ask this illegal question on the application or during the recruiting phase.) You should refuse to answer this illegal interview question.

2. Your employer lays off the oldest workers solely because the oldest workers are making the highest salaries.

3. Your boss denies an older worker the right to take a training seminar or additional educational courses but allows younger employees or otherwise invests in their future career prospects. This occurs often in the corporate workplace.

Continue reading "Age Discrimination on the Rise in New York, New Jersey & Connecticut" »