Intro to the NYCHRL: Your Right to a Non-Discriminatory Lunch

New York City is undeniably more liberal than most other places in America.  So it should be no surprise that it has one of the most protective anti-discrimination statutes in the country. 

In contrast, federal discrimination claims often face difficult hurdles.  There are countless situations where behavior that is objectively discriminatory, would not make it far as a discrimination claim under only federal law.

The result is that clearly discriminatory conduct goes unpunished, not because it is not discrimination, but because discrimination law has a standard, either judge made, or based on the text of the statute, that is very conservative - demanding at times incredibly exacting evidentiary support. 

But what about situations that are clearly discriminatory, but where there is a “smart discriminator”?  A discriminator who fails to leave a helpful document trail clearly showing the reason they did what they did was based on discrimination or retaliation.

Or what about instances that are discriminatory, but where the courts are be hesitant to find discriminatory because the conduct is viewed by some merely as passing slights?

Enter stage left – the New York City Human Rights Law, which applies less demanding standards for finding conduct to be discriminatory compared to its federal and state counterparts.

In fact, there are some pretty striking examples where the NYC law supported a discrimination lawsuit that might not have made it far in court under only federal law.

Here is one:

At an administrative hearing, a restaurant, a place of public accommodation under Administrative Code section 8-102(9), was found to have engaged in discrimination against an African American customer by asking her to pay for her food before receiving it, while three non-African American customers were not required to pay for their food until receiving their food orders. Respondents failed to demonstrate a legitimate, non-discriminatory motive for treating the African American customer differently.

Annotated NYC Administrative Code 8-107

Importantly, just this one instance was enough to find the restaurant liable for discrimination.

The restaurant was ultimately fined $5,000.

Amazingly, the restaurant did this to a “tester” from the New York City Commission on Human Rights – i.e. an employee of the Commission. 

 You can read the final decision and previous history here.

Come back for additional case studies demonstrating the distinction between federal and NYCHRL discrimination standards.

 

Obama Signs Executive Order Prohibiting LGBT Discrimination By Federal Contractors

This is obviously long overdue - but thankfully finally happening:

"The executive order has two parts: It makes it illegal to fire or harass employees of federal contractors based on their sexual orientation or gender identity, and it explicitly bans discrimination against transgender employees of the federal government. The part targeting federal contractors affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation's workforce.
"America's federal contracts should not subsidize discrimination against the American people," Obama said during remarks at the White House just before signing the order. "I'm going to do what I can with the authority I have to act."
The provision affecting federal employees takes effect immediately, while employees of federal contractors will have their new protections in place by early next year, according to senior administration officials" (link)

President Obama signing the order yesterday:

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Recently Pregnant Employees Also Protected From Pregnancy Discrimination For Four Months

Citing recent decisions from within the Second Circuit, New York federal Judge J. Paul Oetken found that protection from pregnancy discrimination extends to include recently pregnant women in addition to pregnant women:

Katherine Albin alleged viable pregnancy discrimination claims against Thomas Pink Inc., its corporate parent LVMH Moet Louis Vuitton Inc., and two supervisors under Title VII of the 1964 Civil Rights Act and New York state and city law, the U.S. District Court for the Southern District of New York said.  It found that the promotion denial may have occurred three and a half months after Albin gave birth to her first child.

Judge J. Paul Oetken cited emerging case law within the U.S. Court of Appeals for the Second Circuit holding that women who are four months or less removed from giving birth are still protected by Title VII's prohibition against pregnancy discrimination."

While observing that at some point after a pregnancy ends protection from pregnancy discrimination also comes to an end:

"[P]regnant women, women who very recently gave birth, and women on maternity leave are unquestionably within the protected class of pregnant persons, 'at some point in time such women are no longer 'affected by pregnancy, childbirth, or related medical conditions' and, thus, are not protected.'" (internal citations omitted) (link)

the court found that protection generally continues for approximately four months after a pregnancy:

"Distinguishing among previously pregnant women to determine who is still affected by pregnancy requires selecting a temporal cutoff based on the facts of the given case.  While ultimately dependent on the factual situation of a specific claim, a pattern has developed in this Circuit establishing a loose line at approximately four months from the date of birth." (internal citations omitted) (link)

In my view, along with age and disability discrimination, pregnancy discrimination is one of the more prevalent forms of discrimination today.  Unlike explicit race and gender discrimination, pregnancy discrimination (in its varied forms) does not carry the same heavy stigma and is surprisingly prevalent. 

Unfortunately, although prevalent, it is often unrecognized and/or unreported.

This decision goes a long way to help advance anti-discrimination protections for pregnant and recently pregnant employees.

 

LA's Lawsuit Against Wells Fargo Gains Further Steam

The City of Los Angeles' suit against Wells Fargo (previously covered here) made further progress this week:

"A federal judge has denied Wells Fargo's latest bid to end a lawsuit brought by the Los Angeles city government accusing the bank of discriminatory lending that led to a wave of foreclosures among minority borrowers.
In a ruling made public on Monday, U.S. District Judge Otis Wright denied the San Francisco-based bank's motion to have an appeals court decide whether Los Angeles has legal standing to recover damages under the U.S. Fair Housing Act.
Wells is one of four banks sued by Los Angeles for allegedly giving minorities mortgage loans they could not afford, causing defaults, lower property values and neighborhood blight.
The city is seeking damages for lost tax revenue and increased city expenses in affected neighborhoods."  (continue reading)

The Ten Largest Discrimination Settlements of 2013

From Inside Counsel the top ten largest discrimination settlements of 2013.

Topping the list is:

"$160 million – McReynolds, et al. v. Merrill Lynch & Co.
The largest settlement of 2013 has its roots eight years earlier, when in 2005, broker George McReynolds accused Merrill Lynch & Co. of giving white brokers more lucrative accounts while denying black employees equal pay and career advancement opportunities. McReynolds filed a lawsuit on behalf of 700 black brokers who worked for Merrill. Before the suit was settled out of court in August, it had seen two appeals in the Supreme Court and survived Merrill Lynch's acquisition by Bank of America in 2009."  (link)

It is also gratifying to see a case I worked on for several years with my prior firm at #8.

"$3.1 million – Easterling, et al. v. State Of Connecticut, Department Of Correction
Similar to the Chicago case, this suit alleged that the a physical fitness test composed of a 1.5 mile run required by the Connecticut Department of Corrections was not a business need, and that it discriminated against female candidates. As a result over 200 women who applied for a Correction Officer position in 2004 o4 2006, were certified for the class. The settlement was finalized in July." (link)

(*small correction to IC - the Easterling class totaled 124 class members not 200)


The Nation: How Consumers Are Getting Screwed by Court-Enforced Arbitration

Yes, unfortunately, this applies to you:

"For more than forty years, the Supreme Court’s conservatives have been engaged in a campaign to shut the courthouse door to consumers, working people, small businesses and others seeking redress for corporate wrongdoing. 
In recent years, and especially since Chief Justice John Roberts and Associate Justice Samuel Alito joined the Court, a major weapon in this campaign has been the Federal Arbitration Act (FAA) of 1925. The conservatives have used the act to prevent victims of such abuses from seeking redress in the courts, forcing them into pre-dispute arbitration instead. In doing so, they lose a public trial, a jury and a neutral judge, as well as an appeal to a higher court; in many cases they may also have to give up discovery rights. It is not uncommon for them to wind up before an arbitrator who is dependent upon the defendant’s business community for work and fees, and who may not even be legally trained. Not surprisingly, those forced into arbitration almost always fare much worse than they would in court.
* * *
Two reports issued at the end of last year show how effective the Court’s arbitration rulings have been. Last December, the Consumer Financial Protection Bureau (CFPB) issued a preliminary report, which found that contract clauses mandating pre-dispute arbitration are a “common feature of consumer financial contracts”; a final report is due by year’s end. The agency found such clauses in over 50 percent of credit card loans, 81 percent of prepaid charge cards and in checking accounts covering 44 percent of all insured deposits."  (emphasis added). (continue reading)

When I first started to understand the scope of this issue and began taking a hard look at my various consumer contracts it was truly startling.  Even almost a decade ago, I found that the vast majority of my consumer contracts were subject to mandatory arbitration agreements.

For example, that huge bill AT&T sent you that was incorrect - perhaps because they charged you based on your previous plan even though you upgraded - if you can't get a decent customer relations person on the phone (a real risk) you can't challenge the charge in court.

That's something to really give some thought to as a consumer.  

Do you really want to have a contract with a company that is not willing to stand by the quality of its product and services in court?  If the answer to that is no - then there's a real problem -  some consumer industries do not offer a viable company you can use that does not use mandatory arbitration agreements.

If this is all a bit disturbing you may have good reason to get behind the stalled Arbitration Fairness Act. Take a look:

THE ARBITRATION FAIRNESS ACT OF 2013
Senator Al Franken
The ability of ordinary Americans to seek justice in our courts, even when up against the most powerful corporate interests, has become a fundamental element of our civil justice system. However, the growing use of forced arbitration provisions in consumer and employment contracts has eroded this essential function. Forced arbitration provisions thwart the ability of workers and consumers to hold corporations accountable for wrongdoing, even in the most egregious cases. (continue reading)

 

New York Students Join Constitutional Challenge to Teacher Tenure Rules

As previously covered here, last month a California court ruled that California teacher tenure rules were unconstitutional under the state constitution.

New York students have followed with a similar suit regarding teacher tenure in New York:

Eleven New York Public School students filed a class action lawsuit in the Supreme Court of the State Thursday, claiming teacher tenure laws violated their State constitutional rights to a "sound basic education."
. . .
The lawsuit declares New York Education law, Section 3020a and its implementation as unconstitutional. Plaintiffs claim that employment as an educator in New York State is an earned privilege and cannot be a life-long right for incompetent teachers; the process for due process protections are onerous and create disparate costs for lower-income and non-white populations; and if a teacher's performance is below minimum standard guaranteed by the New York State constitution, they should not able to retain their employment during a downsizing period based on their seniority. (link)

A press release announcing the suit notes the abysmal status of student performance in New York schools:

"Across New York State, about 70 percent of students do not read, write and do math at grade level.  This is a crisis of epic proportions. New York City schools in mostly Black and Latino neighborhoods are staffed with the highest concentration of Unsatisfactory-Rated teachers.  Yet, every attempt to hold teachers accountable for educating our children is blocked.  Bad laws need to go. It is time to reform the law and put our children's interests.  Every child must receive equal access to a high-quality education." (link)

It looks like for the near future this is the battle ground on which teacher tenure will be preserved or dismantled across the country.


MLK - Economic Justice & Racial Justice Are Intertwined - The Need for a Living Wage

The current debate about the need, or lack thereof, to raise the federal minimum wage is slowly heating up.  Advocates stress human dignity and the economic stimulus this policy would advance.  Opponents point to the cost to businesses' bottom line  - often invoking the mom and pop store that is barely making ends meet. 

Although I think proponents very much have the upper hand in this argument - this is surely a place where reasonable minds can disagree.

Or can they?

As in most things, it's sometimes important to take a step back and re-frame modern debates in historical contexts.

Most people remember Martin Luther King, Jr. as one of the great leaders of the civil rights movement.  However, near the end of his life, he was increasingly focusing his message on the problems of poverty and economic justice.  Moreover, this shift in focus happened well before America had even begun to fully deal with racial equality - so why the shift?

If you are an advocate for a living wage take a moment to see what MLK had to say about it.

If you consider yourself a supporter of MLK, but are opposed to a living wage, you may have to do some soul searching on this issue if you take the time to listen.

Perhaps this should change how we talk about a living wage as a national issue.

Uploaded by UnionSolidarity on 2011-02-08.