by Stephen D. Hans | Nov 3, 2021 | Employment Discrimination
How does the change affect employers? Changes in private settlements for employment discrimination recently took another turn in New York State. The New York State Division of Human Rights (NYSDHR) announced it will no longer discontinue complaints after private settlement. In the past, if private attorneys reached a settlement, they did not have to disclose the settlement terms to the public or to the NYSDHR. The Commissioner would issue a discontinuance of the complaint. By comparison, under the new change, if a Division attorney represented the complainant, the NSYDHR would review the settlement. However, previously, they did not require review when a private attorney assisted the complainant. A press release issued by the NYSDHR describes the recent change and underlying reasons. Reasons for Changes in Private Settlements for Employment Discrimination The reasons that the NYSDHR gave for eliminating the discontinuance was to provide “increased transparency and good governance regarding settlements.” They explained that the Division had a vested interest in how all cases resolved. It was their responsibility to make sure that terms complied with their basic standards. In addition, they needed to ensure the settlement did not violate public policy. When seeking a discontinuance of a complaint, attorneys must submit the reason. If the reason given is due to private settlement, the NYSDHR will not grant the discontinuance. Parties must either settle through a commissioner’s order or proceed with the complaint through the public hearing process. New York State Human Rights Law In 2019, the New York legislature passed several amendments to the New York State Human Rights Law (NYSHRL). One amendment prohibited employers from requiring non-disclosure agreements...
by Stephen D. Hans | May 11, 2018 | Employment Discrimination
One Set of Rules for Men and a Different Set of Rules for Women Having company policies that discriminate between men and women can be lethal for an employer in today’s work environment. If you haven’t had an attorney review your employee handbook or policies in recent times, it would be wise to do so. Recent Lawsuit Filed by the EEOC Against the New Orleans Saints The New York Times published an article about how an Instagram post led to the EEOC’s discrimination lawsuit brought on behalf of a cheerleader against the New Orleans Saints. Saints officials fired Bailey Davis based on an Instagram post where she wore a one-piece outfit. They also conducted an inquiry about her attending a party where a Saints player was present. Davis denies being at the party. However, the scope of this case goes beyond wrongful termination and challenges the team’s policies by alleging a double standard for female and male employees. Are different rules for men and women discriminatory? Saints officials put an anti-fraternization policy in place to protect against domestic violence and sexual harassment among players and league employees. The following are the rules that the plaintiff alleges are discriminatory: Cheerleaders must block players from following them on social media and cannot post photos where they are wearing Saints gear. No such rules exist for the team’s players. Many players use pseudonyms on social media and yet it is the cheerleader’s responsibility to discover this and block them. Cheerleaders are penalized for pursuing engagement with players while players are not penalized for pursuing engagement with cheerleaders. Cheerleaders are told not to...
by Stephen D. Hans | Jan 17, 2018 | Business Attorney, Employment Defense Attorney, Employment Discrimination
Q&A that Applies to Sexual Harassment in Small Business Environments If you are a small business owner, you may wonder how to protect your small business from sexual harassment and resulting claims that put your business at risk. Here are some questions and answers (Q&A) that are a good place to start when dealing with sexual harassment. This Q&A relates to harassment by supervisors: Who is considered a supervisor? Any individual who has the authority to recommend tangible employment decisions affecting the employee is a supervisor. Tangible employment decisions include significant employment actions that change an employee’s status, such as: Hiring Firing Promotion Demotion Work assignment Undesirable reassignment Significant benefits changes Compensation decisions When are employers liable for a supervisor’s sexual harassment? Whenever a supervisor engages in harassment that results in a tangible employment action, the employers are always liable. When no tangible employment action occurs, employers are still liable unless they can show the following: They took reasonable care to prevent and promptly correct sexual harassment. The employee reasonably failed to complain to management or failed to otherwise avoid harm. What steps should employers take to prevent and correct sexual harassment? Employers need to establish policy that prohibits harassment, put it in writing and pass it out to all employers. Employers should create procedures for making complaints and notify employees. When a business is sufficiently small that the owner is regularly in contact with all employees, the employer does not have to put policies in writing. Employers can tell employees at staff meetings that harassment is not allowed, that employees should report harassment immediately and they can even...
by Stephen D. Hans | Sep 12, 2017 | Employment Defense Attorney, Employment Discrimination
Claims of national origin and race discrimination along with retaliation were the basis of an EEOC lawsuit brought against a Long Island Company headquartered in Massapequa, NY in August 2017. A&F Fire Protection Co, Inc. is a sprinkler installation company that allegedly violated federal law by allowing a hostile work environment where black and Hispanic employees were routinely subjected to racial insults. Details of the National Origin and Race Discrimination Allegations The EEOC’s lawsuit alleged that repeated racial harassment occurred with workers being called the “N-word,” “spics,” “jigaboo,” and “wetbacks.” The company failed to take action to end the discrimination and instead either forced complaining employees to quit or fired them, which is retaliation under federal law. Prior to filing a lawsuit, the EEOC used its conciliation process to try and reach a settlement. The lawsuit against the company seeks the following: Back wages Compensatory damages Punitive damages Changes in employment policies to prevent future harassment or retaliation The EEOC New York District Office Regional Attorney Burstein pointed out that the abuse was pervasive and that upon learning about racial harassment, employers are obligated by law to ensure it stopped. The EEOC New York District Office Director Kevin Berry emphasized that retaliation against the employee who complains against discriminatory behavior is one of the EEOC’s top priorities when reviewing claims. Another EEOC Trial Attorney, Kirsten Peters reminded employers that even one utterance of a racial slur by a supervisor in a workplace constitutes a hostile work environment and can be legally actionable based on recent case law. At the First Sign of a Discrimination Dispute, Consult with an Employment...
by Stephen D. Hans | May 16, 2017 | Employment Defense Attorney, Employment Discrimination, Employment Harassment
Many employers realize that preventing harassment in the workplace can mean the difference between a productive and profitable business and a business that faces legal threats and compromised profitability. Workplace harassment is a form of discrimination and can be based on sex, race, disability, age, ethnicity/national origin, color and religion. EEOC Study on Harassment Recently, the Equal Opportunity Commission (EEOC) released the results of a study about harassment along with recommendations that employers may find valuable in preventing workplace harassment. The study found that: Workplace harassment problems have persisted. In fact, about one-third (90,000) of the charges received by the EEOC in 2015 dealt with allegations of workplace harassment. Most employees fail to report workplace harassment and instead avoid the harasser, downplay the gravity of it, try to ignore it, forget or endure the harassment. The costs of workplace harassment through actions taken by the EEOC in 2016 totaled $164.5 million. Harassment is costly for businesses. Accountability for harassment must begin at the top of the work culture with its leaders. Training for sexual harassment over the past 30 years focuses on how to avoid legal liability rather than how to change the harassing behavior. This wrong form of training has allowed the problem to persist. EEOC Recommendations for Changing the Work Culture Different approaches to training would include some techniques that have proven to be effective on school campuses. The focus is on creating a culture that prevents discrimination. Approaches include: Bystander intervention training. Workers are trained to speak up and object when they see a co-worker being harassed by another worker. This is particularly necessary for supervisors...
by Stephen D. Hans | Nov 16, 2016 | Employment Defense Attorney, Employment Discrimination
It can be a relief when employers understand they can use best practices to avoid discrimination issues. As Benjamin Franklin said, “An ounce of prevention is worth a pound of cure,” and this holds true for businesses that want to avoid discrimination litigation. Not every business is subject to Equal Employment Opportunity Commission (EEOC) laws. Businesses with 15 or more employees are subject to Title VII laws and businesses with 20 or more employees are subject to Age Discrimination in Employment Act (ADEA) laws. However in New York, employees with four or more employees are subject to New York Anti-discrimination laws. Best Practices The EEOC outlines best practices for HR professionals and employers to follow that encompass: General work atmosphere Recruitment/hiring/promotion Terms, conditions and employment privileges Harassment General Work Atmosphere The top level of the business including HR professionals, managers and supervisors should receive training in EEO laws and so should employees. Top positions should enforce the laws and promote an inclusive workplace culture that fosters open communication and early dispute resolution. They should use neutral and objective criteria as opposed to subjective or stereotypical criteria to make employment decisions. Recruitment, Hiring and Promotion HR professionals should diversify the pool of candidates considered for positions. Self-analysis is important to determine whether minorities are being treated differently or being disadvantaged. HR should also ensure that qualifications for positions actually meet business needs and are important and do not involve educational requirements that disproportionately exclude certain racial or minority groups. HR should also ensure that job positions are communicated to all eligible employees. If HR uses an outside placement agency, it...
