Former Urban Outfitters Clerk Sues For Co.'s Indifference to Customers' Sexual Harassment

From the NY Daily News:

"Tatiana Swiderski, 25, said her bosses at the Fifth Avenue store turned a blind eye [to] the harassment — refusing to call cops on the pervy patrons and holing her away in the stock room for complaining.
'They made it their mission to make me feel invalidated,' Swiderski told the Daily News. 'They tried to make me feel like I was a crazy over-reactor.'"
Now she's suing the chain for sexual harassment and retaliation."  (link)

Some of the details:

"The sexual assault came just two weeks after security told her a man had been following her and another employee with a video camera and shooting up their skirts as they went up the stairs. While the guards made him erase the video, they let him go and refused to call the police or tell her his name so she could do so. Her suit even claims that a guard mocked her.
After she complained to management, a security guard allegedly told her to “stop being a stupid bitch.” She also claims that a guard began patting her down as she left work, something she felt was sexually inappropriate and not done to other employees."  (link)

Not only are the details pretty horrifying but it appears to be a potentially industry-wide issue:

"A 2002 study in Canada found that harassment for these workers doesn’t just come from coworkers, but from customers, as it did for Swiderski, which constitutes a “significant problem.” A majority of women in retail said they had been sexually harassed by customers on the job, but given that companies are focused on satisfying the customer, women face constraints in how they can handle it and many are reluctant to bring it up."  (link)

According to the EEOC, it is a clear violation of federal discrimination law for an employer to take no action in response to harassment of employees by customers -- where it has notice of the conduct:

"The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action."  (link)

The above response is, to put it lightly, clearly inadequate.

I was also struck by a throw away line in the middle of the NY Daily News. Interestingly -  the article notes that when Swiderski began working:

"She said there was an early sign of trouble — a co-worker told her she'd only been hired because she's 'tall, pretty, thin and white.'"  (link)

If that is accurate (which it may or may not be) Urban Outfitters may be headed for a repeat of  a large racial discrimination case brought by LDF regarding hiring for "the American look" at Abercrombie and Fitch:

"Th[at suit alleged that Abercrombie refused to hire qualified minority applicants as Brand Representatives working on the sales floor while discouraging applications from minority candidates. It also charged that in the rare instances when minorities were hired, they were given undesirable positions to keep them out of the public eye.
* * *
In November 2004, LDF and co-counsel reached a settlement with the company, winning $40 million dollars for rejected applicants and employees who had been discriminated against by the company. The settlement’s consent decree also required the company to institute a range of policies and programs to promote diversity among its work force and to prevent discrimination based on race or gender."  (link)

Of course this is just the hearsay statement of a co-worker.  But, if true, Urban Outfitters (or at least this store location) may also soon be facing suit on the race discrimination front.

It will be interesting to follow this case as it develops.



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:

GettyImages_453176359.jpg


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.

 

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)


EEOC Settles ADA Leave Suit for $1.35 Million With Princeton Healthcare

The EEOC has settled another ADA leave as a reasonable accommodation case.

Princeton HealthCare System, which operates the University Medical Center of Princeton at Plainsboro and several other medical facilities, will pay $1.35 million and will undertake significant remedial measures to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission, the agency announced today.
The EEOC’s suit alleged that the hospital’s fixed leave policy failed to consider leave as a reasonable accommodation, in violation of the Americans with Disabilities Act. According to the EEOC, Princeton HealthCare’s leave policy merely tracked the requirements of the federal Family Medical Leave Act and employee leaves were limited to a maximum of 12 weeks. The policy meant that employees who were not eligible for leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks.
The EEOC filed suit in U.S. District Court for the District of New Jersey after attempting to reach a pre-litigation settlement through its conciliation process.
Under the consent decree settling the suit, approved by U.S. Magistrate Judge Douglas E. Arpert, the hospital is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the Americans with Disabilities Act may take.
. . .
Princeton HealthCare also agreed that it will not subject employees to progressive discipline for ADA-related absences, and will provide training on the Americans with Disabilities Act to its workforce. (link)

ABA: A Dual Perspective on City-Mandated Paid Sick Leave Policies

From the American Bar Association Section of Labor and Employment Law - a point counterpoint on paid sick time laws:

A Dual Perspective on City-Mandated Paid Sick Leave Policies

Since 2006, several cities have enacted ordinances requiring employers to provide a specified number of paid sick days per year to employees who have some level of work activity in those cities. To date, San Francisco; Seattle; Portland, OR; Long Beach, CA;1 New York City, Jersey City and Newark,2 NJ; Philadelphia;3 and Washington, D.C., plus the state of Connecticut have passed mandatory paid sick leave laws. Although these laws vary--some apply only to larger employers, or require the provision of unpaid, rather than paid sick days for smaller employers--they generally provide anywhere from five to fourteen paid sick days per year for employees to care for themselves or a dependent family member.

At the same time, ten states (Georgia, Wisconsin, Louisiana, North Carolina, Tennessee, Massachusetts, Kansas, Indiana, Florida, and Arizona) have adopted laws that prohibit local governments from passing paid sick leave laws. Fourteen other states are considering similar bans.  (continue reading)


The Legal Diversity Crisis - Why Are Black Lawyers Underrepresented at Top Law Firms?

From the New York Times and The American Lawyer - the more you think about it the more disturbing these numbers are:

"Black lawyers accounted for 3 percent of lawyers at big firms last year, a percentage that has declined in each of the last five years. And the proportion of black partners at such law firms remained stagnant at 1.9 percent during the same period, according to the 2013 diversity scorecard published in the June issue of The American Lawyer." (link)

The black population of the United States is currently 13%. 

As previously discussed (here and here), subconscious biases likely play at least a part in these dynamics: 

"Blacks lag behind in the top tiers of the law, according to the American Lawyer, because unconscious racial bias can influence the types of assignments and the relationships between and among employees. That can hinder black lawyers from advancing to the highest slots, it said."  (link)

As explained in The American Lawyer:

"What still is lacking, many black lawyers and diversity directors say, is a broad commitment by individual white partners to ensuring the success of minority lawyers, and particularly black lawyers. Recent research has painted an alarming picture of the continuing presence of unconscious racial bias at firms. The research confirms what a lot of black lawyers have known all along: It's not enough to recruit more black associates if you don't deal with pervasive bias." (link)

As explained by a black female ninth-year associate at a midsize firm:

"'You are deemed worthy of receiving the keys when you are liked, and you are usually liked by people who can relate to you or perceive you as similar to themselves,' a black female ninth-year associate at a midsize firm says, asking not to be identified because she is up for partnership. Black lawyers, she adds, 'would more often than not say that they were not able to bring their whole selves to work and therefore grew tired of the ruse and moved on, or they brought their whole selves to work and found themselves ostracized and alienated.'" (link)

The American Lawyer article points to a study similar to one previously covered here (regarding email responses by professors at top colleges):

"In late April, law firms were roiled by a study that shows in the starkest terms yet how implicit bias remains pervasive. The study, by Nextions, a law firm diversity consultant and leadership coaching firm, found that supervising lawyers were more likely to perceive African-American lawyers as having subpar writing skills.

In its study, Nextions inserted 22 errors, including minor spelling or grammar errors, factual errors and analysis errors, into a research memo written by a hypothetical third-year litigation associate. The memo was then sent to 60 partners who had agreed to participate in a writing analysis study. Half got a memo identifying the author as African-American; the other half, a memo noting that the associate was white. The hypothetical black associate got a significantly lower score on average than the hypothetical white one. Partners, regardless of their race or gender, had more positive things to say about the work of the white associate, and found fewer mistakes on average in the paper."  (link)

Of course, that is not the only dynamic at play:

"Interviews with two dozen black lawyers, in-house counsel, diversity experts and academics, plus our exclusive law firm surveys, suggest a variety of causes. Most agreed that pressures within law firms that began during the recession have made partnership both a more difficult and less attractive proposition for black lawyers. Meanwhile, the pipeline has narrowed. As firms keep associate classes smaller, fewer black lawyers are moving into firms; the black law graduates who are tapped by elite firms continue to be a small group of high-ranking students from first- or second-tier law schools. Finally, a mid-2000s push by corporations to compel their outside counsel to diversify has receded, displaced by concerns over law firm pricing."  (link)

The American Lawyer article highlights some of the efforts some law firms are taking in response to these issues, including revisiting hiring and evaluation systems:

"In the meantime, firms such as Schiff Hardin, Littler Mendelson and Reed Smith have begun taking steps to address both unconscious bias and structural impediments to black lawyer advancement. These steps echo in practical ways those recommended by the American Bar Association's Presidential Initiative Commission on Diversity in 2010 in its report summarizing its findings after a year of hearings on the issues." (link)

The full American Lawyer article is available here and is a very thorough and thoughtful piece.



AARP: Asian Women Most Targeted Group for Age Discrimination in NYC

AARP's analysis found:

"[T]hat Asians report the highest percentage (37%) out of several major ethnicities (Black, Hispanic & White) in NYC when it comes to their, a family member or a friend not being hired for a job since hitting 50. For Asian women the issue is a particular problem, with the group citing age as an issue 43% of the time - a rate 13% higher than their male counterparts and 17% higher than the general 50+ population in the city."  (link)

Age discrimination is unique in that it has the potential to affect all employees at some point in their lives.  In addition, it appears that age discrimination, in some cases, also interacts significantly with and/or is exacerbated by race and sex factors. 

GettyImages_453176359(1).jpg