I am honored to have been profiled in the Center for Constitutional Rights summer newsletter:
Thank you CCR for the opportunity to have been an Ella Baker Fellow and for all of the important civil rights and human rights work that you do everyday.
CVS Store Detectives File Race Discrimination Class Action Alleging Forced Racial Profiling of Black and Latino Shoppers
As reported in the NY Times:
"Four former store detectives employed by CVS in New York filed a class-action lawsuit against the drugstore chain on Wednesday, accusing their bosses of ordering them to target black and Hispanic shoppers.
The lawsuit, filed in Federal District Court in Manhattan, also alleged that the detectives were fired after they complained about racial discrimination, against both customers and themselves.
The plaintiffs, all of whom are either black or Hispanic, contend in their suit that two supervisors in CVS’s loss-prevention department, overseeing stores in Manhattan and Queens, regularly told them to racially profile nonwhite shoppers. The suit says that one of the supervisors, Anthony Salvatore, routinely told subordinates that “black people always are the ones that are the thieves,” and that “lots of Hispanic people steal.” The second supervisor, Abdul Selene, frequently advised detectives, known at CVS as market investigators, to “watch the black and Hispanic people to catch more cases,” the suit said." (keep reading)
Supreme Court Rules Against Abercrombie & Fitch on Religious Discrimination Appeal
It has become a stirring and rare event for the Supreme Court to hand down a decision protecting or strengthening employee rights, but low and behold, it has occurred once more - with a decision from Justice Scalia:
"To prevail in a disparate-treatment claim, an applicant needshow only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledgeof his need. Title VII’s disparate-treatment provision requires Elaufto show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing aknowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment toreligious practices, rather than demanding that religious practices betreated no worse than other practices." (continue reading)
Los Angeles Raises Minimum Wage to $15 an Hour
As covered in the New York Times:
"The nation’s second-largest city voted on Tuesday to increase its minimum wage to $15 an hour by 2020, in what is perhaps the most significant victory so far in the national push to raise the minimum wage.
The increase — which the Los Angeles City Council passed in a 14-1 vote — comes as workers across the country are rallying for higher wages, and several large companies, including Facebook and Walmart, have moved to raise their lowest wages. Several other cities, including San Francisco, Seattle and Oakland, Calif., have already approved increases, and dozens more are considering doing the same. In 2014, a number of Republican-leaning states like Alaska and South Dakota also raised their state-level minimum wage by referendum." (keep reading)
Can I Really Sue My Boss Individually in NYC – And What Does That Really Mean?
One important limitation of Title VII, the federal law that protects most employees at most larger companies from discrimination, is that the law only allows employees to hold the company liable.
So, if an employee brings a claim because of a manager’s harassment under Title VII, only the company will ever have to directly pay an award of damages to the injured employee. While the court may impose injunctive requirements on the company that affect the individual harasser, these injunctive requirements nonetheless still fall squarely on only the employer’s shoulders.
For example, if the offending harasser leaves the organization, they will likely no longer be subject to any court-ordered injunctive requirements.
Of course, there may be internal consequences for the harassing supervisor, but any action taken against the harasser will be at the discretion of the company, not necessarily mandated by law. While companies are usually not thrilled with supervisors who harass employees and cause them to file discrimination lawsuits, inevitably there are exceptions, where even successful lawsuits do not result in an employer fundamentally addressing issues of discrimination.
Given these limitations, technically a sexual harasser could harass many employees, resign when a lawsuit is filed, and leave without directly paying their victim(s) a single cent.
What’s an aggrieved employee to do?
Fortunately, in New York City and New York State, there are protections beyond those provided under Title VII by way of the New York City Human Rights Law ("NYC Human Rights Law") and the New York State Human Rights Law.
This post focuses on the unique aspects of the NYC Human Rights Law, one of the most protective anti-discrimination and retaliation statues in the country.
Under the NYC Human Rights Law, employees who meet the definition of a “supervisor” are personally liable for any discrimination they engage in.
You heard correctly. Your supervisor may be personally liable, out of their own funds, for discrimination, along with a NYC employer.
Many NYC supervisors and other employees are likely surprised to hear this. Indeed, it is likely that the vast majority of supervisors and other employees are unaware that this is the case in NYC.
This provision should certainly give all current and potential “supervisors” great pause with respect to their conduct in the office. If their actions result in a lawsuit alleging discrimination or retaliation an employee, perhaps one who has no issue with the larger company -- only the specific supervisor -- could technically decide to only sue the supervisor in their personal capacity.
While an employee is unlikely to take that route where he or she is not certain the supervisor (as opposed to the employer) could actually satisfy any judgment given their financial resources, this fact is something NYC supervisors are well-advised to keep in mind during their interactions in the workplace.
The protections of the NYC Human Rights Law not only include potential relief against individual supervisors, but, importantly, the standard for discrimination violations is also far more liberal than Title VII, making it much more likely that an employer and/or supervisor will be found liable for discrimination with respect to identical conduct.
By way of example, in NYC, a supervisor can potentially find themselves liable for an employee’s emotional distress damages, as well as attorney’s fees and costs, by making a single harassing discriminatory statement to an employee.
Each side may then certainly litigate the appropriate amount of emotional distress damages, but, in any event, the employee will, in many circumstances, have an argument that the employer and/or supervisor are personally liable to them for emotional distress damages.
New York City is not only a unique place to live, it has a uniquely protective regime of anti-discrimination and anti-retaliation laws that put employees on, at least, less unequal footing with supervisors when addressing discrimination and retaliation in the workplace.
A cautionary note, however, is that while the NYC Human Rights Law is expansive, it is not limitless. Every workplace slight is not necessarily discrimination or retaliation, and you should consult with an attorney before assuming you have a potential claim against an employer and/or supervisor merely because you have been treated poorly or unfairly in the workplace.
The NYC Human Rights Law also does not apply to employers with less than five employees.
New York Post Covers Lawsuit Filed by The Dugger Law Firm, PLLC on Behalf of "The Face" Winner Devyn Abdullah Against Her Former Agency Direct Model Management, Inc.
The New York Post article, "Model Who Won Reality Contests Sues Over 'Withheld Payments,'" by Kathianne Boniello, is available here.
The Face Modeling Competition Winner Devyn Abdullah Files Complaint Seeking Payment of Withheld Portion of Ulta Beauty Contract Award Against Direct Model Management, Inc. and Owner Mykola Webster
On April 21, 2015, The Dugger Law Firm, PLLC filed a federal complaint on behalf of Devyn Abdullah, the first winner of The Face television modeling competition, against her former modeling agency, Direct Model Management, Inc., as well as Direct owner and president Mykola Webster, and Direct head of finance Atiff Joseph, for violations of federal and state wage and hour laws, as well as breach of contract.
The complaint alleges that Defendants misclassified Ms. Abdullah as an independent contractor in violation of the Fair Labor Standards Act and the New York Labor Law.
Among other violations, Ms. Abdullah alleges that Defendants withheld, and otherwise failed to pay her, at least $13,000 of her wages from The Face competition award of a $50,000 contract with Ulta Beauty.
The complaint also alleges that Defendants failed to pay Ms. Abdullah for work with several additional modeling industry clients.
Ms. Abdullah seeks payment of minimum wages, payment of unpaid earned wages, liquidated damages with respect to minimum wages that were eventually paid but were not paid promptly, reimbursements for illegal deductions, additional associated liquidated damages, as well as damages for breach of contract and New York Labor Law recordkeeping violations.
The case is Abdullah v. Direct Model Management, Inc., et al., No. 15 Civ. 03100, in the United States District Court for the Southern District of New York.
For more information contact Cyrus E. Dugger at cd@theduggerlawfirm.com or (646) 560-3208.
NY Times: New York City Discriminated in Paying Managers, Commission Finds
In what must be a highly disconcerting report for the progressive De Blasio administration:
A federal commission on fair employment practices found that New York City has engaged in a broad pattern of discrimination, paying minorities and women substantially less than their white male counterparts, and recommended on Monday that it pay hundreds of millions of dollars in back wages and other damages.
* * *
Specifically, the commission found that “structural and historic problems” have resulted in the pay of minorities and women being suppressed.
“This rate of pay is much less than their white male counterparts’ in similarly situated jobs and titles,” according to the commission’s findings.
After completing its investigation, the federal commission recommended that the city enter into conciliation efforts with the panel. If the city fails to make an offer by April 17 and enter conciliation talks, the matter will move to the Justice Department, which would most likely file suit against the city. (continue reading)
It will be very interesting to see what happens before the April 17 deadline.
The Dugger Law Firm, PLLC Has Filed a Sex Discrimination Class Action Against the NYC Department of Education, Principal Rashaunda Shaw, Ast. Principal Dayne McLean, and Ast. Principal Sharon Spann
The Dugger Law Firm, PLLC and The Law Office of Daniela Nanau, P.C. have filed a sex discrimination class action lawsuit against the New York City Department of Education, Globe School for Environmental Research (“Globe”) Principal Rashaunda Shaw, Globe Assistant Principal Dayne McLean, and Globe Assistant Principal Sharon Spann.
Plaintiff Lisa B. Deleo alleges violations of Title VII, the New York City Human Rights Law, and 42 U.S.C. § 1983.
The amended complaint alleges that Assistant Principal McLean repeatedly sexually harassed Ms. DeLeo, culminating in a confrontation in which Assistant Principal McLean sexually gyrated in front of Ms. DeLeo while she was alone in her office. In addition, the amended complaint alleges that, following Ms. DeLeo’s complaints of harassment, the New York City Department of Education, Principal Shaw, Assistant Principal McLean, and Assistant Principal Spann retaliated against her because of her complaints.
The amended complaint also alleges that the New York City Department of Education, Principal Shaw, Assistant Principal McLean, and Assistant Principal Spann have created and/or permitted a sexually hostile and retaliatory hostile work environment for non-management female employees at Globe.
Ms. DeLeo seeks certification of a class of all non-management female employees at Globe, from January 2012 through the resolution of the lawsuit, against the New York City Department of Education, as well as Principal Shaw, Assistant Principal McLean, and Assistant Principal Spann in their individual capacities.
The case is Deleo v. New York City Department of Education, No. 15 Civ. 00591, in the United States District Court for the Southern District of New York.
California Uber and Lyft Driver Misclassification Cases Survive Summary Judgment
Two federal judges have held that whether Uber and Lyft drivers are employees or independent contractors under California law cannot be decided on summary judgment and must be decided by a jury:
"Two landmark lawsuits that claim that drivers for ride-hailing services Uber and Lyft should be considered employees rather than contractors will both go to jury trial, two U.S. judges ruled Wednesday. The decisions could have a ripple effect on the business models of the burgeoning on-demand and sharing economies." (link)
The Uber decision is available here and the Lyft decision is available here.
This is a big win for workers.
