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Graig F. Zappia, Esq. Tully Rinckey PLLC
441 New Karner RoadAlbany, New York 12205
The Basics of Workplace Discrimination and Harassment
©2015
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About Your Presenter
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Partner at Tully Rinckey PLLC Represents employers and employees in Federal labor and
employment law Advises small businesses, including medical professionals, in
their asset acquisitions and sales, corporate formations, and corporate governance
Graig received his juris doctorate from Albany Law School of Union University in Albany, N.Y.
He received a bachelor’s degree from Siena College in political science.
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Basics of Workplace Discrimination and Harassment
Title VII (42 U.S.C. § 2000e) – Prohibits employers from discriminating against an
individual with respect to compensation, terms, conditions or privileges of employment because of the individual’s race, color, religion, sex, or national origin.
– To qualify as an employer under Title VII, an employer must have fifteen (15) or more employees at least twenty weeks out of the year.
– A labor organization falls under Title VII if it has more than 15 members. There is no minimum size for Title VII’s application to employment agencies.
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Section 2000e‐3 Prohibits retaliatory discrimination against individuals
who oppose unlawful employment practices, or who have made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing regarding an unlawful employment practice.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) University of Texas Southwestern Medical Center v.
Nassar, 133 S. Ct. 2517 (2013)
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Prohibits an employer or other individuals or organizations subject to the provisions of the Title VII from advertising or publishing any ad or brochure expressing any preference, limitation, specification, or discrimination based upon race, color, religion, sex, or national origin.
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Section 2000e‐3
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Establishing a Claim Under Title VII
Disparate treatment– Two part test
Impermissible Motivating Factor Procedural requirements of the Equal
Employment Opportunity Commission – Recovery is limited by 42 U.S.C. 1981a and 42
U.S.C. 2000e‐5 Compensatory damages Back pay up to two years Enjoin the unlawful employment practice Order appropriate affirmative action
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Americans with Disabilities Act (ADA) Discrimination under the ADA
– Limiting, segregating or classifying a disabled employee – Subjecting employees of contractors to the behaviors
prohibited by the ADA– Excluding or denying equal jobs or benefits due to a
qualified individual’s disabilities– Failing or denying a qualified individual a reasonable
accommodation – Denial of employment opportunities because it would
require the employer to make reasonable accommodations– Use of qualifications tending to screen out qualified – Failing to design qualifying exams to the job related skills
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Filing Under the ADA A claimant must demonstrate:
– The employer is subject to the ADA– A disability within the meaning of the law– Qualification to perform the essential job junctions
with or without an accommodation– An adverse employment action because of the
disability
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Procedural Requirements of the Equal Employment Opportunity
Commission Recovery is limited by 42 U.S.C. 1981a and 42 U.S.C.
2000e‐5 Under 2000e‐5, a court may order compensatory
damages Back pay up to two years May enjoin the unlawful employment practice May order appropriate accommodations be made by the
employer
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The Age Discrimination Employment Act of 1967
ADEA protects individuals over the age of forty (40) from discrimination based on age
The law is substantially similar to Title VII and the ADA
Claimants under the ADEA must comport to the Equal Employment Opportunity Commission procedural requirements, which can be found at 42 U.S.C. 2000e‐5
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The ADEA defines employers as having twenty (20) or more employees
Does not allow for compensatory or punitive damages May award double liquidated damages Covers a variety of subjects Establishes procedural requirements for waiver of claim Establishes minimum requirements for pensions Prohibits mandatory retirement ages across most sectors
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Family Medical Leave Act Requires covered employers to provide employees with certain
lengths of unpaid leave for qualified medical and familial reasons Total of twelve (12) work weeks of leave during any twelve (12)
month period for the following reasons: – The birth of a son or daughter of the employee– Placement of child with the employee to foster or adopt– To care for a spouse, child, or parent of the employee if the spouse,
child or parent has a serious health condition– The employee has a serious health condition– For a qualified emergency
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Employees are entitled to be restored to the position held prior to the commencement of the leave or to an equivalent position with equivalent pay, benefits and other terms or conditions
Employer is required to furnish health insurance– May recover amounts paid towards the employee’s
premiums if the employee fails to return to work after the leave
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Violation of FMLA Employee may take a private action against the employer for
equitable relief and damages equal to lost wages The statute offers as an example of actual costs incurred, the cost
in caring for a spouse, child, or parent suffering a serious health condition for a period up to 12 weeks
If the employer cannot show a good faith belief with reasonable grounds for the denial of the leave was not in violation of the FMLA then the employee is entitled to double damages
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NY Human Rights Law Encompasses all of Article 15 of the Executive Law
– Section 296 Provides employees with a choice of remedies
– State Division of Human Rights – Private claim in an applicable court
Prohibits discrimination against persons because of the individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, pre‐disposing genetic characteristics, marital status, or domestic violence victim status.
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Prohibits publishing or advertising prohibited discriminatory considerations in ads for available employment
Protects employees who speak out about employment practices prohibited by the HRL and prohibits retaliation for filing a complaint
NY HRL requires employers to make reasonable accommodations for employee’s physical or mental disabilities unless the accommodation would impose undue hardship on the employer’s business
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Determines when employment interference with religious practices rises to the level of an unlawful discriminatory practice
An employer is obligated to make a bona fide effort to reasonably accommodate the employee’s religious needs unless such accommodation would cause undue hardship on the conduct of the employer’s business
Holy Days or Sabbaths– The employer may elect to consider time off for holy days as paid
leave (but not sick leave), have the employee make up the hours at another time without the right for commiserate pay, or taken as unpaid leave
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Filing Claims with the EEOC Commence any state law remedies
– The claimant may not file a complaint with the Commission until the earlier of sixty (60) days after commencement of proceedings under state or local law or until such state or local claim is denied
The claimant must file his or her complaint with the Commission on or before one hundred and eighty (180) days after the alleged illegal employment practice occurred
– If the claimant was required to file proceedings in state or local courts first, then that period is modified to the earlier of three hundred (300) days or thirty (30) days after denial of the state or local claim
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• The Commission will notify the employer of the complaint and perform its own investigation
• If the Commission’s investigation finds no reasonable cause to believe the complaint is true, the Commission will dismiss the complaint and notify all parties
• If it finds reasonable cause, then the Commission is charged to eliminate the discriminatory employment practice through informal methods like conference, conciliation, and persuasion
– All discussions held at these conferences are confidential and cannot be admitted in court without the consent of all parties
– The Commission has one hundred twenty (120) days to render its determination regarding the reasonable cause to believe the complaint is true.
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If the Commission is unable to secure an acceptable conciliation agreement from the employer within thirty (30) days of the filing of the complaint, then the Commission may commence a civil action against a non‐governmental employer.
For governmental employers, the Commission is required to hand the case over the Attorney General’s office for pursuit of claim and the claimant may immediately intervene in the civil claim.
The claimant may maintain a private right of action if the Commission denies his or her complaint or after the passing of one hundred eighty (180) days following the filing of the complaint.
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Actions made pursuant to the Commissions procedures may seek injunctive relief including:– Prohibition of the discriminatory acts as well as affirmative
action to prevent future discrimination– Actual damages including lost wages going back two years– Attorney’s fees if they proceed in the courts
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Filing Under NYS Division of Human Rights
Claimants are not required to utilize the Division of Human Rights
The Division may hear complaints against all employers in New York State, with itself being the only exception
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The complaint must be filed with the Division within one year of the unlawful employment practice occurring
Division determines the necessary parties and completes service
Commission is authorized to file a complaint on the claimant’s behalf to satisfy the requirements of the EEOC without interfering with the individual’s private right of claim
The respondent is not required to file an answer until two days prior to the hearing
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The Division shall make the determination if respondent’s offer of conciliation is sufficient to satisfy the complaint
The claimant has 15 days to object to the conciliation plan in writing
Division may dismiss the complaint or take other actions Claimant may withdraw his or her complaint at any time
prior to a Notice of Hearing being issued The Division may dismiss the complaint if the claimant
refuses to participate in the process, refuses a reasonable offer of conciliation, or upon the claimant’s request to pursue claims in other forums
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• If the Division is unable to reach a reasonable conciliation, the complaint shall proceed to a hearing• Failure to answer may result in loss of the right to present
evidence at the hearing• Hearings are conducted before an administrative law
judge designated by the Division– The Rules of Evidence – The Commissioner of the Division issues an order– The Division is authorized to monitor the respondent – There is no entitlement to recovery of attorney’s fees
under the New York State Human Rights Law
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Latest Trends & Hot Topics in Employment Laws
Arbitration– Several courts across the country have recently upheld
arbitration agreements that prohibit class claims– EEOC v. Waffle House, Inc., 534 U.S. 279, 288‐9 (U.S. 2002)– Stolt‐Nielsen S.A. v. Animal Feeds Int'l Corp., 559 U.S. 662, 130 S.
Ct. 1758, 1775 (U.S., 2010– AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (U.S. 2011– Sutherland v. Ernst & Young LLC, 726 F.3d 290, 296‐297 (2d Cir.,
2013
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FMLA forms and regulations– Department of Labor continues to tweak FMLA forms for different
types of leave requests. You can access the new forms at: http://www.dol.gov/compliance/laws/comp‐fmla.htm
NYC Unemployment Discrimination Law – Effective July 11, 2013, New York City included “unemployment” in
the list of considerations employers with greater than 4 employees may not consider when making employment decisions. “Unemployment” is defined as “not having a job, being available for work, and seeking employment”.
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Medical Marijuana Laws – Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348
Ore. 159 (Or. 2010): – An in depth analysis of the pre‐emption of Oregon State Law permitting
the growing, possession, and consumption of marijuana due to the laws enacted under the Controlled Substances Act. The Court finds that even state discrimination laws which use state law definitions of controlled substances do not require Oregon employers to follow reasonable accommodation procedures regarding employees possessing and consuming marijuana under prescription from their doctor due to the pre‐emption of federal law designating marijuana as a Schedule I substance, meaning that it cannot have any legitimate medical use.
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Graig F. Zappia, Esq. Tully Rinckey PLLC
441 New Karner RoadAlbany, New York 12205
©2015
Questions?
