Articles Posted in Second Circuit

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Edgar M. Rivera, Esq.

On March 16, 2018, in Chauca v. Abraham, the Second Circuit vacated a district court’s denial of a plaintiff’s request for a jury instruction on punitive damages for pregnancy discrimination under the New York City Human Rights Law (NYCHRL). The Second Circuit explained that the lower court had erred in applying the federal test because the New York State Court of Appeals, on certified question, had expressly rejected the application of the federal standard for punitive damages under the NYCHRL. The case was remanded for further proceedings consistent with the opinion.

The Harman Firm, LLP, reported on Chauca v. Abraham on November 20, 2017. In our post “New York Court of Appeals Sets Punitive Damages Standard for NYCHRL Claims”, we explained how the New York State Court of Appeals set the standard for punitive damages awards in claims brought under the NYCHRL. The New York State Court of Appeals, in keeping with the New York State common law standard, held that the NYCHRL entitles a plaintiff to punitive damages “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”

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Lev Craig and Leah Kessler

This summer, we reported on the Second Circuit’s decision to review en banc its holding in Zarda v. Altitude Express, Inc., where the Second Circuit had affirmed the dismissal of the plaintiff’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) on the grounds that Title VII does not cover sexual orientation discrimination. On Monday, the Second Circuit broke with precedent and reversed that decision, finding that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

While Title VII forbids discrimination in the workplace based on race, color, sex, religion, and national origin, the statute does not explicitly prohibit sexual orientation–based discrimination. This has historically left many employees vulnerable to discrimination because of their sexuality: No federal law explicitly forbids discrimination against LGBT people in the workplace, local laws differ considerably from state to state, and the U.S. Supreme Court has never addressed whether Title VII covers sexual orientation discrimination. While, under the Obama administration, the Equal Employment Opportunity Commission (EEOC)—the government agency that interprets and enforces Title VII—made clear that it views sexual orientation discrimination as a violation of Title VII, the EEOC’s interpretations don’t have legal force in federal court, and courts have typically dismissed Title VII sexual orientation claims in the past.

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Today, the Second Circuit Court of Appeals issued a landmark decision in Zarda v. Altitude Express, Inc., breaking with precedent and holding that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. The court found that Title VII’s sex discrimination provision covers discrimination on the basis of sexual orientation, writing that it is “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” The decision, which makes the Second Circuit the second circuit court to arrive at such a ruling, means that LGBT New Yorkers are now protected by federal law against sexual orientation discrimination in the workplace.

We’ll post a blog exploring this decision in more detail later this week, and the Second Circuit’s opinion can be found here. If your employer has discriminated against you based on your sexual orientation, contact The Harman Firm, LLP.

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Edgar M. Rivera, Esq.

On November 21, 2017, in Martinez v. Davis Polk & Wardwell LLP, the Second Circuit affirmed the district court’s dismissal of a race discrimination case at summary judgment. Plaintiff Eunice Martinez, a web editor at the law firm Davis Polk & Wardwell LLP (“Davis Polk”), claimed that Davis Polk—despite Martinez’s repeated requests to be promoted to a management-level position—awarded her lower salary raises and failed to promote her into a managerial position because she is Hispanic. The district court concluded that Martinez failed to establish a prima facie case for either claim. Second Circuit Judges Rosemary S. Pooler, Debra Ann Livingston, and Denny Chin affirmed the decision.

To prove pay discrimination, Martinez had to satisfy the “demanding” standard of the equal work inquiry, which requires evidence that the jobs compared are “substantially equal.” Showing that two positions are “substantially equal” is easier said than done, as even small differences in duties or responsibilities can suffice to show that two positions are not “substantially equal.” Here, Martinez conceded that she “holds a unique position and there is no point of comparison” for her particular job and testified during her deposition that she was not qualified to do the jobs of six of her proposed seven comparators. As a result, Martinez could not show that her comparators were “substantially equal” and therefore could not show that they did “equal work.”

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Lev Craig

Last week, on November 20, 2017, in Chauca v. Abraham, the New York State Court of Appeals set the standard for punitive damages awards in claims brought under the New York City Human Rights Law (NYCHRL). The New York  Court of Appeals, in keeping with the New York State common law standard, held that the NYCHRL entitles a plaintiff to punitive damages “where the wrongdoer’s actions amount to willful or wanton negligence” or “recklessness” or involve “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”

In 2009, Plaintiff Veronika Chauca became pregnant, took a period of maternity leave from her job as a physical therapy aide, and was terminated after her return from leave. She then filed suit in the U.S. District Court for the Eastern District of New York, bringing sex and pregnancy discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York State Human Rights Law (NYSHRL), and the NYCHRL.

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Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

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Lev Craig

On August 10, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated the lower court’s dismissal of the plaintiff’s sex discrimination and FMLA interference claims in Shultz v. Congregation Shearith Israel of the City of New York. The Second Circuit found that the defendant’s notice to the plaintiff of her future termination constituted an adverse employment action, even though the notice of termination was later revoked.

Alana Shultz began working as Program Director at a New York City synagogue in 2004. In June 2015, Shultz, who was pregnant at the time, got married and notified her employer that she was pregnant. Shortly after Shultz disclosed her pregnancy, the synagogue notified Shultz that her employment would be terminated effective August 14, 2015, purportedly due to “restructuring.” Suspecting that the supposed “restructuring” was pretext for terminating her because of her pregnancy and because the synagogue’s leadership “disapproved of the fact that she was pregnant at the time of her marriage,” Shultz retained counsel, who then notified the synagogue of Shultz’s intent to pursue legal claims. Several days later, the synagogue rescinded its notice of termination, telling Shultz that it had “reinstated” the Program Director position and that she would therefore retain her position.

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Owen H. Laird and Walker G. Harman, Jr.

On Wednesday, President Trump and his administration took two major actions against LGBT rights: First, President Trump tweeted that transgender people would no longer be allowed to serve in the U.S. military; then, the Department of Justice (DoJ) filed a brief in an ongoing Second Circuit case, arguing that Title VII of the Civil Rights Act of 1964 (Title VII)—a major federal anti-discrimination statute—does not prohibit discrimination based on sexual orientation. These two actions clearly demonstrate Trump’s position on LGBT rights: He does not support them, and his actions are disturbing and intolerant. As Trump forces the LGBT community—and all of us—to take giant steps backward, we all need to bear arms (so to speak) to protect the rights of all those marginalized within the LGBT community.

Last year, President Obama instituted a new policy allowing transgender people to serve in the military. On Wednesday, President Trump, via Twitter, announced that transgender people would no longer be able to serve, claiming that the armed forces could not afford the “tremendous medical costs and disruption” supposedly caused by transgender people serving in the military. Trump provided no empirical support for his offensive statement. The backlash against Trump’s statement was swift, with Democrats and LGBT advocates swiftly decrying the decision. There are estimated to be anywhere between 5,000 and 15,000 transgender people currently serving in the U.S. military, and Trump’s announcement puts their careers at risk.

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Lev Craig

On July 19, 2017, the U.S. Circuit Court of Appeals for the Second Circuit vacated a jury verdict for the defendant in Woods v. START Treatment & Recovery Centers, Inc. In Woods, the plaintiff claimed that she had been terminated in retaliation for taking leave under the Family and Medical Leave Act (FMLA). The court held that FMLA retaliation claims should be evaluated using the “motivating factor” causation standard and found that the jury had been incorrectly instructed on the applicable law, as the Woods jury had been instructed to apply the “but-for” causation standard, not the motivating factor standard. Accordingly, the Second Circuit vacated the lower court’s verdict and remanded the case for a new trial.

In 2007, Cassandra Woods began working as a substance abuse counselor at START, a New York–based nonprofit providing treatment and counselling to individuals addicted to narcotics. Woods has several debilitating medical conditions, including severe anemia. According to Woods, she repeatedly asked to take FMLA leave due to these medical conditions during her employment at START, but was denied on multiple occasions. In April 2012, Woods was hospitalized for a week, a period which START acknowledged was protected by the FMLA. Shortly after Woods’s return to work, START terminated her employment, purportedly because of performance deficiencies.

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By Harrison C. Paige

On April 18, 2017, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Eastern District of New York’s decision in Zarda v. Altitude Express, dismissing Donald Zarda’s sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). In reaching its decision, the Second Circuit relied on its 2000 decision in Simonton v. Runyon, where the court held that Title VII does not protect against discrimination based on sexual orientation. However, on May 25, 2017, the Second Circuit granted en banc review in Zarda, signaling that the Second Circuit may be ready to reexamine Simonton and revisit its position on Title VII sexual orientation discrimination claims.

In Simonton, Dwayne Simonton, a postal worker, was harassed because of his sexual orientation. The harassment was so severe that Simonton suffered a heart attack as a direct result of the abuse. While the Second Circuit’s decision noted the severity of the harassment and rebuked the behavior, the court nonetheless held that Title VII’s prohibition against discrimination based on “sex” does not include discrimination based on sexual orientation and dismissed Mr. Simonton’s Title VII sexual orientation discrimination claims. The precedent set by Simonton has prevented countless individuals from bringing sexual orientation discrimination claims under Title VII, leaving individuals stranded in their search for justice.

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