New York State’s Sweeping Anti-Sexual Harassment Legislation

New York State’s Sweeping Anti-Sexual Harassment Legislation by Sara Wyn Kane {Read in 4 minutes} In response to the #MeToo Movement, New York State and New York City overhauled their sexual harassment policies to give women additional protection in the workplace.

  • It is important that women know they now have additional rights that they did not have before.
  • It is also important that employers know they now have additional responsibilities that they did not have before.

In April 2018, Governor Cuomo signed sweeping anti-sexual harassment legislation into law, which goes into effect October 9th and applies to all employers. The new law requires employers to adopt a prevention plan that not only prohibits sexual harassment but provides examples of unacceptable conduct. The policy has to include information about the federal and state laws, and a standard complaint form. Continue reading

Ex-Mitsubishi Atty Claims Sex Bias Led To Her Ouster

Law360 (September 19, 2018, 8:30 PM EDT) — A Mitsubishi Chemical Corp. unit illegally refused to promote one of its top attorneys to general counsel because of her gender and fired her under false pretenses after she complained about the conglomerate’s discriminatory treatment of women, according to a suit in New York federal court.
Plaintiff Jennifer S. Fischman, who worked as an in-house lawyer at Mitsubishi Chemical Holdings America Inc. for about a decade, alleged that the company violated Title VII by not promoting her to the job of general counsel and chief compliance officer on a permanent basis because of her gender and later concocted a reason to fire her after she had been demoted, according to the suit filed Sept. 7
Fischman also claimed that the company selected a male attorney, Nicolas Oliva, to fill the role she didn’t get despite him being both less qualified and less experienced than her, and that a top company executive had it out for her because she oversaw an investigation into certain of his alleged misdeeds.
“While the glass ceiling may have some cracks in it, we as a society need to break through completely,” Sara Wyn Kane of Valli Kane & Vagnini LLP, counsel for Fischman, said in a statement Wednesday. “After passing over Ms. Fischman for the top spot, the company unjustifiably retaliated and terminated this longtime senior employee, who earned high marks year after year for her stellar performance, after she spoke out against the wrongful discrimination against herself and other female employees.”
A representative for Mitsubishi was not available for comment.
Fischman, who joined Mitsubishi in March 2008, said in her suit that the position she sought functions as a “secretary” at dozens of affiliated Mitsubishi companies in the United States and a few in Japan that use MCHA’s legal department under a contractual agreement.
The person who gets the job must have approval from the board of each individual company at which they are a secretary, as well as approval from top officials in Japan who oversee each of those companies, according to the complaint.
Almost throughout her tenure, Fischman said, she received sparkling performance reviews, but was told in 2015 that it wasn’t likely she would ever get the general counsel and chief compliance officer job on a full-time basis, according to the complaint.
Donna Costa, who held the job and was herself being promoted within the company and for whom Fischman had filled in, purportedly told her the decision had been made by company brass in Japan.
Top executives at a Mitsubishi affiliate in South Carolina subsequently told Fischman that the decision not to promote her was made because she is female and that Costa “had expended all her ‘political capital’” on getting herself promoted, according to the complaint.
Once Oliva got the job, Fischman alleged that the company treated him better than she was treated when she held the role on an acting basis, including giving him higher pay and more access to company brass.
“Despite her excellent qualifications … Ms. Fischman was passed over for promotion to the full (i.e. non-temporary) position of general counsel and chief compliance officer until the company could hire a suitable male replacement, because the company values male leadership and could not tolerate the notion of having more than one woman (Ms. Costa and Ms. Fischman) in executive positions,” the complaint said. “Indeed, other than one other woman who is an outside member of the board of directors in Japan, Ms. Costa remains the only woman in executive leadership worldwide — in a company with tens of thousands of employees and hundreds of affiliated companies.”
Besides being passed over for promotion, Fischman also claimed that one top company executive, Shoji Yoshisato, who wasn’t named as a defendant, particularly resented her because she had to conduct an interview with him in 2013 that included numerous invasive questions in connection with an investigation that involved potential sexual harassment, as well as his purported blackmailing of a whistleblower who allegedly knew about financial improprieties.
Yoshisato allegedly retaliated against Fischman weeks after the company settled the whistleblower’s claims by not promoting her and starting a search for her replacement, she alleged.
Fischman was ultimately fired in 2017 and escorted from the building purportedly for a negative mid-year review she received, which she claims the company didn’t typically issue, and a purported ethical violation in a case she had been working on — reasons she now claims were pretextual.
“The cruelty with which Ms. Fischman was treated was an attempt by the company to humiliate her, damage her personal and professional reputation, and silence her from making a claim of discrimination and retaliation,” the complaint said.
Besides Title VII, Fischman’s suit also includes claims under the Sarbones-Oxley Act and the Equal Pay Act, as well as various New York City and state statutes. Along with several Mitsubishi corporate entities, Costa and Oliva are named as defendants, with Fischman accusing them of aiding and abetting the companies’ alleged violations of New York laws.
Fischman is represented by Sara Wyn Kane, Robert Valli and Matthew Berman of Valli Kane & Vagnini LLP.
Counsel information for Mitsubishi wasn’t immediately available.
The case is Jennifer Fischman v. Mitsubishi Chemical Holdings America Inc., case number 1:18-cv-08188, in the U.S. District Court for the Southern District of New York.
— By Vin Gurrieri
–Editing by Dipti Coorg.
Read the original article from Law360

Workplace Discrimination? Get that Complaint Filed!

Employees in this country have protections against workplace discrimination and harassment. These include protection from sexual or racial harassment, national origin, religion, age, disability, and gender (including sexual orientation) discrimination. These forms of harassment and discrimination are spelled out under Title VII, and its amendments, which is the statute enacted as a result of the Civil Rights Act of 1964.
Workplace Discrimination? Get that Complaint Filed!
Prior to that time, there had been other federal statutes such as §1981 and §1983 which address primarily race and national origin discrimination as well as retaliation. These sections, however, did not include gender, religion, disability, or age discrimination. As a result of the civil rights movement, the Civil Rights Act was passed, which was designed to specifically address workplace discrimination and expanded protections for employees subjected to these additional types of discrimination.
The Title VII statute empowered what is known as the Equal Employment Opportunity Commission (EEOC) and created that faction of the government whose job it is to survey and take complaints of workplace discrimination. Anyone wanting to bring a complaint and go into Federal court under those claims has to first go through the EEOC administrative process. As a federal statute, it is the same in every state and any employer who has 15 employees or more is subject to the statute.
The EEOC Filing Deadline
Title VII sets a complaint filing deadline of 180 calendar days. However, it also provides that in any state where there is a similar employment discrimination statute, such as New York, the deadline may be expanded to 300 days. With the exception of a few states like New Mexico and Georgia, every state in this country has a state-level statute against workplace discrimination. In those states that do not, the filing period is limited to the 180 days.
A complaint must be initiated when the harm takes place. You can’t have something happen two years earlier and then wait, worrying whether you are going to lose your job. That is certainly a legitimate worry, but if you choose to wait and try to raise that complaint after the 180-300 days have passed, it will be considered untimely because the statute requires you to make that complaint within 180-300 days of the occurrence of discrimination.
However, certain claims trigger the 180-300 day filing requirement after the last occurrence of discrimination where the discrimination takes place over a period of time. This type of discrimination is known as a “continuous violation.” For example, if you are a victim of sexual harassment and you were subjected to repeated, unwanted sexual advances or comments over a period of months, the clock starts running from the last act of harassment, not the first. Most employees do not know this.
If you believe you have a legitimate complaint, it is extremely important that you make use of resources like the EEOC’s website, or contact a lawyer like us to ask for information about what to do, even if you choose not to act on it at that time. Failing to act in many states leaves you high and dry, without any other protection, because either there is no state statute, or in more conservative jurisdictions like Texas, for example, the states only adopt the same 180-day rule as Title VII.
Paying attention to the EEOC deadlines is an important issue because an employee may have a very strong legal claim but if they do not act within a certain period of time, or get the information to act within a certain period of time, their claim may be completely barred leaving you with no avenue for justice.
James A. Vagnini
Partner
email: jvagnini@vkvlawyers.com
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