Discrimination

April 11, 2013

Professor Sues College for Gender and Race Discrimination, Saying It Promoted Less-Qualified Professors Ahead of Her

A college professor is suing the college where she teaches for gender and race discrimination, alleging that the administration prevented her from advancing on the tenure track at the same rate as her colleagues. Wang v. Macalester College, No. 62-CV-12-9750 (Minn. Civ. Ct. – Ramsey Co., Dec. 21, 2012). She further claims that, after denying her requests for promotion, the college retaliated against her for speaking out about it.

Wang Ping, the plaintiff, is a professor of English at Macalester College in St. Paul, Minnesota. A native of China, she began working at Macalester in 1999 after getting a doctorate from New York University. She became an assistant professor in the English department in 2001. According to her complaint, she requested promotion to associate professor in 2003, but was denied. She finally made associate professor in 2005. A committee denied her request for promotion to full professor in 2009, allegedly stating that her academic record “did not meet the high standard for promotion to full professor.” After she reported the matter to the Equal Employment Opportunity Commission (EEOC), Wang alleges, the college retaliated against her by “refusing to facilitate her projects.” She received a promotion to full professor in 2012.
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April 3, 2013

Restaurant Settles Pregnancy Discrimination Lawsuit with EEOC

by Resnick Law Group, P.C.

A restaurant has agreed to pay $20,000 to a former employee, along with other relief, to settle a pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Reed Pierce’s, No. 3:10-cv-00541, consent decree (S.D. Miss., Feb. 5, 2013). The lawsuit alleged that the restaurant unlawfully terminated the employee because she was pregnant. The restaurant continues to deny the EEOC’s allegations, but agreed via a consent decree to pay damages, allow injunctive relief, modify its employment policies, and mandate training for its employees.

The complainant worked for Reed Pierce’s, a restaurant in Byram, Mississippi, as a waitress. According to the amended complaint filed by the EEOC, the complainant notified supervisors that she was pregnant in November 2008. She reportedly had an allergic reaction to prenatal vitamins in February 2009, and asked to leave work as a result. The employer had allegedly granted similar requests by non-pregnant employees to leave work because of illness, but it denied her request. She made a similar request to take off from work for a doctor’s appointment in March 2009, but was denied. The employer had allegedly granted requests to leave work for medical appointments for other employees. The complainant received notice of her termination from the employer on March 7, 2009, allegedly because “her pregnancy was interfering with her ability to do her job.” Reed Pierce’s, am. complaint at 3-4 (Oct. 18, 2010). She maintains that she was still able to perform her job duties, but received disparate treatment from her employer because of her pregnancy.
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March 20, 2013

New York City Court Dismisses Lawsuit Alleging Height Discrimination, Holding that Adult Height is Not a Protected Genetic Characteristic

by Resnick Law Group, P.C.

An employer did not violate New York state or city human rights laws by firing an employee because of her height, according to a Supreme Court judge in Queens County. The court ruled in Peterson v. City of New York, et al, 2012 N.Y. Slip Op. 51472(U) (Sup. Ct., Queens Co., Aug. 7, 2012), that the plaintiff’s height was not a “genetic characteristic” protected by state law, as she presented no evidence of a genetic condition creating a risk of future illness or disability. It further found that the plaintiff failed to state a claim for relief under New York City’s civil rights law, which does not include protections for genetic conditions.

The plaintiff was employed by the New York City Parks Department from June 2010 until February 2011. Her job involved cleaning bathrooms and taking out trash at the Lost Battalion Hall in Queens. Of the five people employed at Lost Battalion Hall, the plaintiff claimed she was the shortest. Her supervisor allegedly told her that she was “too short” to do her job and that “there was something medically wrong with her.” Slip op. at *1. She alleges that the supervisor required her to see a doctor, and that he was verbally abusive towards her. The plaintiff claims that she rejected a different job offer from the supervisor on February 9, 2011, after which he fired her. She filed suit against the city and the supervisor, alleging violations of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
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March 5, 2013

Nurse Sues Hospital for Allegedly Reassigning Her Because of Her Race

by Resnick Law Group, P.C.

A nurse at a hospital in Flint, Michigan is suing her employer for alleged racial discrimination and civil rights violations. Battle v. Board of Hospital Managers of Hurley Medical Center, et al, No. 13-99763, complaint and jury demand (Mich. Cir. – Genesee Co., Jan. 21, 2013). She claims that the hospital reassigned an infant under her care to a different nurse after the infant’s father demanded a nurse who was not African American. The lawsuit, which names the hospital and a supervisor as defendants, asserts causes of action for equal protection violations, violations of state anti-discrimination law, and intentional infliction of emotional distress.

According to her complaint, the plaintiff, Tonya Battle, began working at Hurley Medical Center in June 1988 as a registered nurse (RN) in the hospital’s neonatal intensive care unit (NICU). She alleges that she was caring for an infant in the NICU on October 31, 2012, when the infant’s father asked to speak to her supervisor. The charge nurse then spoke to the father, and Battle allegedly heard him tell the charge nurse that “he did not want any African Americans taking care of his baby.” Complaint at 3. Battle also alleges that the man pulled up his sleeve to display a tattoo that she believed was a swastika. The charge nurse relayed the father’s request to the nurse manager, Mary Osika, who allegedly told the charge nurse to reassign the infant.
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February 5, 2013

Lawsuit Alleges Gender Discrimination After Plaintiff Revealed Transgender Status

by Resnick Law Group, P.C.

A former Ph.D. candidate at a San Francisco university is suing the school for gender discrimination, alleging that faculty and staff began to mistreat him once he revealed that he had undergone sex-reassignment surgery. The cause of action is a rare one, as only a handful of states, including New Jersey and California, allow claims for employment discrimination based on gender identity. New York state law currently does not allow such a claim, but New York City does. A lawsuit filed in New Jersey in 2011 was the first to test this state’s transgender discrimination law. Federal authorities allowed a claim to proceed in 2012.

Kellen Bennett was a candidate for a Ph.D. in clinical psychology at Alliant International University’s California School of Professional Psychology in San Francisco. He says that he received good grades and good recommendations from August 2006, when he started the program, until October 2011, when he revealed his transgender status to a faculty member and several students. Bennett underwent sex-reassignment surgery thirteen years ago, and he has lived as a man ever since. He claims that his reviews suddenly all turned bad, and that a postdoctoral internship he had been promised was no longer available to him. At least one supervisor frequently used anti-transgender slurs in his presence. Bennett also alleges that someone altered his academic records in a way that affected his job search. He completed his degree, but was unable to continue in the program as he had planned. Bennett filed suit against the university for gender discrimination and retaliation last year.
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January 29, 2013

Former Manager Sues Hotel for Firing her After She Gave Birth in Guest Room

by Resnick Law Group, P.C.

A former manager at a “swanky” New York City hotel has filed a lawsuit accusing hotel management of discriminating against her because of her pregnancy. She alleges that her superiors told her repeatedly that she, possibly because of her age and race, was not a good fit in the hotel’s environment. She nevertheless worked eighty- to one-hundred-hour weeks, even well into her pregnancy. She was working when she went into labor, and ended up giving birth in a guest room at the hotel. After that, she alleges that management began eliminating her job duties, and then fired her on what she claims was a pretext.

Tara Tan claims that she helped build the Standard Hotel’s business in the four years that she worked there. Despite putting in long hours, even while pregnant, she alleges that her superiors told her she did not “fit the culture” of the hotel, a prominent nightlife spot in Manhattan’s Meatpacking District. Tan took this as a criticism of her Chinese heritage and her age, as compared to the young, mostly white, “model-like…beautiful people” she says the management preferred to have around. She had reportedly gained weight during an earlier difficult pregnancy, and endured harassment regarding her appearance before the pregnancy that immediately preceded her termination.

Tan was working a late shift on April 30, 2011 when she went into labor at around midnight. She claims that her superiors did not offer any assistance, allegedly because they did not want to disturb the hotel’s party scene. She was sent into a guest room on the fifteenth floor and waited for her husband, who came two hours later from their home in New Jersey. Tan also alleges that when she called the front desk to ask for help, the person on the phone asked if she was joking. The child was born soon after her husband arrived, at around 2:30 a.m. Tan’s husband assisted in the delivery, with Tan’s doctor offering guidance over the phone. They called for an ambulance, and hotel staff made them leave through a side exit so they would not disrupt hotel guests.
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January 22, 2013

New York Pharmacy Law Unlawfully Discriminates Based on National Origin and Alienage, According to Second Circuit

by Resnick Law Group, P.C.

A group of pharmacists with nonimmigrant visas sued a number of New York state officials over a law limiting pharmacy licenses to U.S. citizens and legal permanent residents. The plaintiffs in Dandamundi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012) alleged that the law violated the U.S. Constitution’s Equal Protection and Supremacy Clauses by discriminating based on “alienage.” The Second Circuit affirmed the trial court’s ruling in the plaintiffs’ favor, finding that immigration status, other than a lack of documented status, is a “suspect class” and that the law failed strict scrutiny review. While this case did not directly involve allegations of discrimination by an employer, it may have an important benefit for nonimmigrant employees who face discrimination based on their immigration status or national origin.

The plaintiffs have H-1B worker visas or TN temporary worker status, giving them the right to work in the United States for a limited time in a specified job. Each plaintiff had legally worked in the United States for six or more years. The court stated that twenty-two of the thirty-two plaintiffs had applied to obtain green cards. The six-year maximum H-1B period had expired for sixteen of the plaintiffs, so they had obtained Employment Authorization Documents from immigration officials to allow them to remain in the U.S. and continue working during review of their applications.

All of the plaintiffs had New York pharmacy licenses issued through a waiver program in New York Education Law § 6805(1)(6). The law states that pharmacy licenses are only available to citizens and permanent residents, but the waiver extended the availability of licenses to people with certain nonimmigrant visas. The plaintiffs’ pharmacy licenses became void when the waiver expired in 2009.
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January 15, 2013

Former Game Show Model Receives $8 Million Verdict in Pregnancy Discrimination Suit

by Resnick Law Group, P.C.

A former model on the long-running daytime game show “The Price is Right” received a verdict totalling over $8 million in a suit against the show’s producers. The plaintiff alleged that the producers unlawfully discriminated against her because of her pregnancy by firing her after she took leave to give birth. Federal law prohibits discrimination in employment based on a worker’s gender, and includes pregnancy discrimination as a form of gender bias. Laws in most states, including New Jersey, include similar prohibitions.

Brandi Cochran worked as a model on the show for several years before becoming pregnant. She alleged in her complaint that she witnessed discrimination by the show’s producers against other models who became pregnant, and so decided not to reveal her pregnancy for some time in order, she believed, to protect her job. When Cochran informed one of the producers, the producer told her she knew, citing Cochran’s weight gain. Cochran alleged that another producer, upon learning of the pregnancy, began to avoid interacting with her and suggested that he would have fired her had he known of the pregnancy.

Cochran claimed that the producers made her announce that she was pregnant with twins on the air. After the announcement, she alleged, the producers reduced her work load. She also allegedly received ridicule regarding her weight gain from co-workers. Cochran miscarried one of the twins, and she gave birth to the other three months premature. The child had severe health problems, and Cochran said she had to balance caring for the child and attempting to lose weight so she could return to the show. She claimed that the producers would not commit to a return date, and she eventually learned that she had been fired after she was removed from the show’s website.
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November 15, 2012

New Jersey Court Backs Alcoholic Employee’s Disability Discrimination Claim

by Resnick Law Group, P.C.

The New Jersey Superior Court recently overturned a lower court’s summary decision dismissing the plaintiff’s claims of disability discrimination on the basis of her voluntary admission of alcoholism.Our New Jersey employment lawyers know it is a little-known fact that alcoholism is considered a disability, both under the Americans With Disabilities Act of 1990 and the New Jersey Law Against Discrimination. What this means is that you cannot be discriminated or retaliated against by your employer for seeking substance abuse treatment or for simply admitting you are an alcoholic or a drug addict.

This may not summarily protect your position if you show up for work intoxicated, if your job performance is poor or if you are putting others at risk. But in this case, the long-term employee was performing well and had no disciplinary issues. What’s more, the company’s internal policy on which her termination was based was found by the state’s Superior Court to be “facially discriminatory,” though the company vehemently defended it.

The case, A.D.P. v. Exxonmobil Research and Engineering Company, originated with a voluntary admission from the employee to her employer that she was an alcoholic and was in an inpatient rehabilitation center receiving treatment. This admission was not the result of an inquiry or pressure from the employer based on poor job performance. In fact, she was performing quite well. Regardless, the company, by its own policy, subsequently required the employee to undergo regular alcohol testing in the form of breathalyzer tests and mandated that she sign an agreement pledging to abstain from alcohol.

When the employee in turn failed a random breathalyzer test, she was fired.

The Superior Court found that because the employee’s required breathalyzer test was based not on job performance or imposed on every employee regardless of disability, the employer in fact was engaging in discrimination.

The court underscored the fact that the employer had not made her sign this agreement as part of a “last chance agreement,” which might have been extended to an employee on shaky ground stemming from poor performance due to alcoholism. The employee was not the subject of any pending disciplinary action or internal investigation. In fact, managers for the defendant testified that the employee’s work was exemplary, and that the tests were mandated on factors other than her job performance.

Therefore, the court ruled, it was discriminatory.

N.J.S.A. 10:5-1 outlines that employers may not terminate a defendant on the basis of a disability. As alcoholism is a disability, employers are required to make reasonable accommodations for alcoholics.

Because substance abuse is not widely accepted as a legitimate illness, many employers may not understand their responsibilities under the reasonable accommodations requirement. It doesn’t mean, for example, that an employer has to tolerate it if you come in late to work on a Monday or leave early on a Friday in order to binge. It does, however, mean the employer can’t target you for discipline because you sought substance abuse treatment or you had to leave a little early to attend an Alcoholics Anonymous meeting. Reasonable accommodation means an employer has to be willing to work with you on these matters, so long as it does not create an undue hardship.
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November 2, 2012

New Jersey Passes Law Against Gender Discrimination

by Resnick Law Group, P.C.

By signing into law new posting requirements aimed at combating pay and gender discrimination, Gov. Chris Christie advanced the fight for equal pay in the workforce.

Under the new law, companies that employ more than 50 people must post gender equality information in the workplace. This information must also be provided to employees at the time of hire, annually thereafter, and upon an employee’s request.The law is scheduled to take effect Nov. 21 and employers will have 30 days to comply once the New Jersey Department of Labor issues notice.

However, our NJ employment lawyers understand there is much work left to be done. Employees, particularly women, must remain vigilant in making sure they are fairly compensated, particularly in relation to men holding similar positions within the company.

Christie vetoed a measure that would have increased the reporting requirements for public contractors in an effort to better determine and enforce compliance. Those doing business within New Jersey would have been required to report gender, job title, occupational category, race and total compensation to the New Jersey Department of Labor.

“When Gov. Chris Christie had a chance to sign legislation I authored to prevent gender wage discrimination in public contracts, he vetoed the bill, calling it ‘senseless bureaucracy,'” wrote Assemblywoman Pamela Lampitt (D-Camden/Burlington), in the Star-Ledger. Lampitt is also chairwoman of the Assembly’s Women and Children Committee.

Christie said it would have been burdensome and would have ultimately driven up the cost of public contracts paid for by tax dollars.

However, fact remain that women continue to fight for the equal pay owed them for equal work; this remains particularly true for jobs traditionally held by men. Lampitt notes a nationwide annual gender wage gap of $15.8 billion. In New Jersey, women earn just 79 cents for every dollar a man earns in the workforce.

Christie returned two New Jersey employment discrimination bills to the legislature for significant amendments.

The first would have eliminated the statute of limitations for bringing compensation discrimination claims. The Christie Administration contends that asserting into the bill limitations on the amount of backpay that can be recover would bring it into better agreement with the holdings of the New Jersey Supreme Court and the Lilly Ledbetter Fair Pay Act of 2009. The governor proposed a two-year limit.

The next measure would have prohibited retaliation against employees requesting pay information. The governor recommended the provisions be included in the New Jersey Law Against Discrimination rather than being made part of NJ’s whistleblower law.

Establishing whistleblower protections is a key component that must be part of any real solution. The secrecy around pay in the workforce is one one the primary reasons why this form of silent discrimination is allowed to continue. Until employees who have reason to believe they are being paid unfairly are given access to compensation information, such discrepancies in pay will remain commonplace.
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