Full 5th Circ. To Examine Employer-Friendly Title VII Rule

The family behind a massive Brooklyn Navy Yards film studio complex stands accused of stiffing local partners out of $50 million in profits, a new lawsuit contends.

Steiner Studios — where films such as Steven Spielberg’s”West Side Story” and Lin-Manuel Miranda’s “Tick Tick Boom!” were filmed — has been named in a civil suit filed by a group of local entrepreneurs who says they developed the complex then were cut out of profits, court records show.

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Brooklyn Movie Studio Shut Out $50M Profits From Partners

The family behind a massive Brooklyn Navy Yards film studio complex stands accused of stiffing local partners out of $50 million in profits, a new lawsuit contends.

Steiner Studios — where films such as Steven Spielberg’s”West Side Story” and Lin-Manuel Miranda’s “Tick Tick Boom!” were filmed — has been named in a civil suit filed by a group of local entrepreneurs who says they developed the complex then were cut out of profits, court records show.

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Fischman v. MCHA: Privilege and Confidentiality Regarding In-House Counsel

Attorney-Client Privilege concept

Attorney-Client Privilege conceptPrivilege and Confidentiality in the Attorney Client Relationship
 Regarding In-House Counsel and Their Employer
Fischman v. Mitsubishi Chemical Holdings America, Inc.(18-cv-08188)
{3 minutes to read}  Attorney client privilege is an integral part of our legal system.  As most situations that require legal intervention are emotional and stressful, reliance on an experienced professional who will commit to your needs while keeping your information confidential has allowed millions of people to have a voice and retain their rights.Continue reading

SB7848A Increases Worker’s Ability to Bring Claims of Sexual Harassment to Court

workplace harassment formBy Shaloni Pinto and Aimee Christianson
{Read in 4 minutes}  With the passage of New York Senate Bill 7848A, the state will make it easier for workers to bring sexual harassment claims to court. Aimed to prevent sexual harassment in the workplace, the bill will amend the general business law to limit the coverage of mandatory arbitration clauses in relation to sexual harassment and will also amend the labor law to promote the prevention of sexual harassment.Continue reading

Babb v. Wilkie – The ADEA and Federal Employees Over Forty

Babb v. Wilkie - The ADEA and Federal Employees Over FortyBy Shaloni Pinto and Aimee Christianson
{Read in 4 minutes}  Ms. Norris Babb alleges that her employer, the Department of Veterans Affairs, denied her advancement opportunities due to her age and gender, and retaliated against her after she filed complaints about the issue. If Ms. Babb was an employee in the private sector, she would have to test these allegations against the tried-and-true standards set by court precedent. Ms. Babb, however, is a federal employee, and the courts do not have a clear standard about how she can prove her age discrimination claim.
The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §633a(a), states that any personnel actions which affect agency employees forty or older must be free from age discrimination. The “free from” wording within the law is unique to the provisions of the federal sector. The Court will answer whether a federal employee has to prove that an action was discriminatory but for her age.
Unlike public employers, private employers cannot make decisions “because of” an employee’s protected class. Both Congress and the courts have deliberated and set precedents on the standard a plaintiff must use to have a valid claim of employment discrimination. Employees in the private sector can either use the “but-for” standard or the motivating factor standard to confirm their allegations of employment discrimination. A motivating factor standard is lenient; it only requires the plaintiff to show that bias relating to their protected class influenced their employers.
Let’s examine Ms. Babb’s case to illustrate the difference between the “but-for” and “motivating factor” standard.

  • If the Court holds that federal employees under the ADEA must use the “but-for” standard, then Ms. Babb will have to prove that she would have been promoted, if not for her age. 
  • Whereas if Ms. Babb used the motivating factor standard, she would have to prove that her age was a factor within a list of other factors that the employer used to deny her opportunities for advancement.

The “but-for” standard is stricter because Ms. Babb (as a plaintiff) must investigate the motivations of the employer and put forth an explanation that ties the other party’s decision-making to the age factor.
While the federal government has argued for the stricter “but-for” interpretation, Plaintiff Babb argues that the motivating factor standard should extend to federal employees. Now, the Court must decide whether federal employees have to abide by the stricter “but-for” standard or whether a motivating factor standard is permissible.
The circuit courts have given conflicting rulings on the issue. The DC Court of Appeals has held that the motivating factor is a valid standard for federal employees. Agencies like The Equal Employment Opportunity Commission (EEOC), charged to enforce the ADEA, have followed this precedent. Yet, other federal appeals courts like the Ninth and Eleventh Circuit have adhered to a stricter standard, holding that the “but-for” causation is the only way to allege age discrimination as a federal sector employee. Thus, this decision by the Supreme Court will resolve the conflicts among the circuit court of appeals and decide whether federal employees over forty need to adhere to a strict standard when alleging age discrimination. 
Reference: Babb v. Wilkie, 2019 U.S. LEXIS 4444

Supervisor sues Omni hotels, alleging sexual harassment and retaliation when she reported it

A former supervisor with Omni Hotels & Resorts has filed suit against the Dallas-based company, alleging sexual harassment and saying the company broke federal laws governing equal pay.Continue reading

Hershey Experiences Bitter Taste of Discrimination Defeat

Hershey school discrimination Somewhere in Philadelphia, a boy wanted to go to school. He came from a broken home, a challenging background. He was, however, determined. He worked hard in school, earning his place on the honor roll. He applied to the Milton Hershey School, which provides food, housing and a top-notch education to children with special needs. The Milton Hershey School turned this exceptional child down. Was it his grades? No. According to the school, the boy was denied admission because he is HIV positive.
The AIDs Law Project found out, got behind the young man and his story, and sued. Today, the Milton Hershey School is about to pay out a settlement totaling nearly $750,000. In addition, the school has issued a public apology and has offered to reconsider the potential student’s application. The case appears to have been a clear cut case of illegal discrimination.
A Painful Denial
Nine words cost the Milton Hershey School the case: “direct threat to the health and safety of others.” The school claimed that because the young man is HIV positive, he should not be allowed to live, eat and be educated with other students at Milton Hershey. Little is known about the school’s defense other than those nine words. If based solely on that, what does the school have to go on? According to the Aids Healthcare Foundation, the legal precedent for such an act was laid nearly thirty years ago, when a young man named Ryan White was expelled for being HIV positive. Now, in the 2010s, we celebrate the potential for finding a very real cure for HIV. The disease is far more manageable than it was in the days of Ryan White. In today’s reality, why would a young man with HIV pose a “direct threat to the health and safety of others?”
A History of Understanding
It has been nearly three decades since HIV first became a terrifying disease. The public’s perception of individuals was changed vastly a full two decades ago when NBA legend Magic Johnson announced he had contracted HIV. The disease was associated with homosexuality and, by definition in the mid-1980s, with homophobia. Once Magic made the announcement, it was widely accepted that HIV-positive individuals were all normal human beings tragically dealing with a potentially lethal disease. That should have been the Milton Hershey School’s point of view in 2012. However, this very real and very modern case illustrates the fact that ignorance and discrimination are alive and well in the United States and our school system.

EEOC Puts New Limits on Criminal Background Checks

The Equal Employment Opportunity Commission (EEOC) has recently clarified its regulations regarding how employers use criminal background checks when making the decision whether or not to hire an individual. The EEOC’s decision to clarify those regulations apparently came about as a result of the organization’s long standing concern that criminal history and race are too often associated when employers make hiring decisions. While the EEOC issued a clarification, not a game-changing reinterpretation, it is important for employers and employees to understand these regulations.
Criminal History Should Not Affect Employment
In broad strokes, the EEOC suggests that criminal history should not be a factor in a hiring decision. However, the organization recognized that, in some cases, criminal history is a required factor of consideration in some segments of the American workplace. As such, the Equal Employment Opportunity Commission has set up a series of best practices designed to prevent or alleviate how an individual’s criminal history may affect a hiring decision.
Background Checks are Not Forbidden
According to Title VII, criminal background checks are not forbidden. In fact, it would be legally impossible to eliminate criminal history as a consideration for hiring in every job in the US economy. For instance, sex offenders must be legally screened from working as teachers in public schools, Banks might require that fraud and larceny not be a part of an employee’s recent past.
Criminal History as a Factor in the Hiring Decision
However, the EEOC’s intent in this clarification appears to be a desire to minimize the importance of criminal history in hiring decisions. But what was the driving factor behind this clarification policy, and how does it relate to Title VII, which says nothing about discriminating against employees on the basis of criminal record? The driving force, according to the Equal Employment Opportunity Commission, was race.
Criminal History and Race Discrimination
Title VII regulations’ prohibition against race discrimination may be, according to the EEOC, inexorably linked. The organization posits that criminal history may be used as a protective shield by companies so that they might discriminate racially, especially against African American and Hispanic individuals. If a company amplifies the negative impact of an individual’s criminal background as a smokescreen for racial discrimination, then Title VII regulations have been violated.
If you feel you were turned down for a job due to racial discrimination and inappropriate factoring of your criminal background, you need to speak to a lawyer. Call the law offices of Valli, Kane & Vagnini to find out how we can help.