By: Aimee Christianson and Shaloni Pinto
{Read in 4 minutes} On June 3, 2019, the Supreme Court released their decision in the case Fort Bend County v. Davis [No. 18-125], which involves Equal Employment Opportunity Commission (EEOC) claim filing disagreements. This case involves Title VII of the Civil Rights Act of 1964 and a potential complainant’s administrative requirements with the EEOC.Continue reading
{Read in 5 minutes} In my previous post, I wrote about the impact an impending Supreme Court decision may have on employee protections — particularly LGBT employees. The issue is whether or not sex discrimination as prohibited by Title VII includes sexual orientation or gender identity protections for employees. While the Equal Employment Opportunity Commission (EEOC) has consistently found that it does, District and Circuit Courts have differed on the matter, and the Supreme Court will rule on the issue in their next term. Continue reading
{Read in 4 minutes} When I was in law school 20 years ago, I wrote an article on legislation before Congress referred to as the Employment Non-Discrimination Act or “ENDA.” This legislation was aimed at expanding Title VII’s coverage to specifically include sexual orientation and gender identity as protected categories not specifically provided by Title VII.
Title VII is part of the original Civil Rights Act federal law enacted in 1964 which provides employees protection from discrimination because of race, national origin, and gender. Over the years, the law was expanded to include some protections for those over the age of 40 and the disabled, and is the bedrock of civil rights law in the employment environment.
To this day, the ENDA legislation has not been passed and there are no specific federal laws that prohibit discrimination based on sexual orientation or gender identity. Moreover, Title VII has not been amended to include these additional specific categories (despite other expansions). It is a sad commentary on our country, and our politics, that in 20+ years, we could not get our act together to provide the specific protections many working citizens require.
Despite this hurdle, the Equal Employment Opportunity Commission (EEOC), the watchdog agency empowered to enforce Title VII, has interpreted Title VII to protect against discrimination on account of sexual orientation and gender identity.
In fact, the EEOC has consistently interpreted any act of discrimination on account of these factors to be something that is covered by sex/gender discrimination. This means you are protected if:
The EEOC has been granted broad discretion to resolve disputes but unsettled legal issues still have to be resolved, by and large, in court — and federal courts have differed. Some circuits agree with the EEOC’s interpretation that sexual orientation falls under Title VII sex discrimination,while others have found that it does not.
Whenever you have circuit court splits like this, the issues become ripe for the Supreme Court — which can either agree to take up the issue or decline to take up the case(s) that address the conflict between the circuits. Recently, it was announced that the Supreme Court will take up this issue in the next term.
This is going to be a big, big decision. Obviously, we have a different Supreme Court makeup today than we did a few years ago, but this is an issue that has gained a lot of popularity and a lot of momentum legally, politically and socially.
The decision will have a huge impact on the landscape of workplace discrimination. The Supreme Court will determine whether Title VII is essentially expanded to include sexual orientation and gender identity as protected classes thereby making it the law of the land. If they find that Title VII does not provide such protection, it will permit employers, to a degree, to discriminate on account of sexual orientation and gender identity.
LGBT workers would have to turn to state and local laws for protection should the Supreme Court limit the law. Many states, such as New York, have laws that protect the LGBT community working in the state. Many states, sadly, have not extended such protections to members of the LGBT workforce.
Things take time, but this decision will be here before we know it. It is something that will have a huge impact on employee protections in the workplace — and could set back a lot of work and progress that has been made so far by the EEOC and the lower district courts who have upheld the EEOC’s interpretation of the law.
James A. Vagnini
Partner
email: [email protected]
{Read in 2:30 minutes} 
Imagine dedicating almost 35 years to the financial industry. You work hard. You are successful. You build an impressive book of business. And yet, you are continuously hindered from reaching your potential – not because you are not qualified, because you are; not because you do not have the necessary experience, because you do. You are passed over because you are an older woman. Our client, Judith A. Bovitz, who is 69 years old, has been experiencing this for years. After every step taken to remedy the situation internally failed, she filed a Federal Lawsuit last month against Wells Fargo Advisors (“Wells Fargo” or the “Company”).Continue reading
{3 minutes to read} Currently pending in the New York State Supreme Court for Kings County is a class-action lawsuit styled Okeke v. Interfaith Medical Center, et al. The plaintiff, Theophilus Okeke, is a former emergency room physician at Interfaith Medical Center (the “Hospital”) located in Brooklyn, New York. He alleges that the Hospital promised him and other similarly situated physicians additional compensation of $96.00 per shift for performing medical examinations on the Hospital’s pre-admitted psychiatric patients. However, the Hospital failed to provide them with the promised compensation.Continue reading
{Read in 7 minutes} At the end of November, we filed a lawsuit entitled Mathis v Educare Community Living Corp, et al. Educare is a large community living corporation that does business in the United States. It’s a division of the ResCare Corporation, which provides all kinds of home health-aide services.Continue reading
{Read in 3:30 minutes} In my last article, I discussed a pattern of discrimination in terms of the disparate impact on African Americans. But what does “disparate impact” mean? In 1971 the Supreme Court adopted the position of the Equal Employment Opportunity Commission (“EEOC”). In Griggs v. Duke Power Co. (1971), the Court invalidated an employer’s requirement that applicants have a high school diploma and/or pass aptitude tests for hire and transfer into more desirable departments where prior to the enactment of Title VII the company had restricted blacks to labor positions. Specifically, the Court stated:
The Act proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.Continue reading
{Read in 6 minutes} Recently I posted an article reminding employees that they must file a harassment complaint within 180-300 days after the latest occurrence. While working on that blog, the question came up about what an employee should do if they are the victim of harassment.
Report the Behavior
First and foremost, report the questionable behavior to someone in your Human Resources (HR) department. The company is not expected to have eyes and ears everywhere; internally, most of them require their employees to report incidents, and the law also requires employees to report incidents themselves.Continue reading
We are pleased to announce that Sara Wyn Kane, a partner at Valli Kane & Vagnini LLP has been selected for the 2018 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the State of New York.
Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of lawyers who have attained a high degree of peer recognition and professional achievement. To ensure a credible and relevant annual list, attorneys are selected from more than 70 practice areas and all firm sizes.
The annual selections are made using a patented multi-phase process that includes:
The objective of Super Lawyers is to create a credible, comprehensive, and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers. The local publishing schedule is:
Please join us in congratulating Sara Wyn Kane on their selection. For more information go to SuperLawyers.com.
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.
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: [email protected]
