Articles Posted in Sex Discrimination

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WorldPride, organized by InterPride, is an event that promotes lesbian, gay, bisexual, transgender, queer, and other (LGBTQ+) issues on an international scale through parades, festivals, and other celebrations.  WorldPride has gone around 5 major cities in the world since its first parade in Rome, Italy, July 2000.  After 20 years of spreading pride and joy in Rome, Jerusalem, London, Toronto, and Madrid, WorldPride has finally arrived in New York City the last week of July 2019.

WorldPride NYC 2019 will be held in conjunction with Stonewall 50, a celebration of the 50th anniversary of the Stonewall Uprising of June 28, 1969, in which the modern LGBTQ Rights Movement began.

In the 1950s and 60s, police raids on gay bars were routine as they sought to arrest, punish, and oppress the gay community by enforcing an anti-gay legal system.  The marginalized, such as gay, transgenders, bisexuals and lesbians were arrested and publicly shamed for having a sexual orientation differ from heterosexuality.  For these individuals, simply being themselves was illegal, even in public places such as NYC’s Stonewall Inn. The gay community, however, stood united on June 28, 1969 and decided to no long endure the systemic mistreatment, rioting against the discriminatory police officers that arrived to put them in handcuffs.  What erupted from the Stonewall Uprising were protests and rebellion that catapulted the gay community into a liberation front, consisting of national awareness,  a New York City newspaper called Gay, Gay Activists Alliance,  Gay Pride marches, and gay rights groups in every American city.

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By Walker G. Harman, Jr.

Contrary to popular belief, the Me Too movement is not so new.  Beginning nearly 15 years ago, it was established to “help survivors of sexual violence, particularly Black women and girls, and other young women of color from low wealth communities, find pathways to healing.”  The original founders had a vision to address both the “dearth in resources” for survivors of sexual  violence” (emphasis added) and to “build a community” of advocates, politicians, lawyers, social workers and others to develop a grassroots approach to addressing and redressing sexual violence at its core.

Now, over a decade later, with many celebrities spear-heading the movement, thousands upon thousands of woman (and even some men) have come forward to say Me Too.  So, what does Me Too actually mean?  It seems via popular sentiment that the utterance of  Me Too signifies that the speaker is also a survivor or a victim of sexual violence.  However, sexual violence is generally associated with illegal conduct (both civil and criminal), such as rape, molestation, offensive touching, sexual harassment, and other vile and abhorrent conduct.  That is, the underlying conduct with a claim of sexual violence is so intrusive and offensive, that it gave rise to criminal and/or civil liability.  Keeping with the movement’s original intent and to this day, the official organizers of the Me Too movement describe the purpose as “helping those who need it to find entry points for individual healing and galvanizing a broad base of survivors to disrupt the systems that allow for the global proliferation of sexual violence.”

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Edgar M. Rivera, Esq.

On February 9, 2019, the Fourth Circuit in Parker v. Reema Consulting Services, Inc. reversed the district court by holding that an employer may be liable under Title VII for sex-based discrimination by participating in the circulation, and acting on, a false rumor that a female employee slept with her male boss to obtain a promotion.

In December 2014, Reema Consulting Services, Inc., (“RCSI”) hired Evangeline Parker as a clerk at one of its warehouse facilities.  After several promotions, in March 2016, RCSI promoted her to Assistant Operations Manager.  About two weeks after that promotion, she learned that several male employees were circulating an unfounded, sexually-explicit rumor that falsely portrayed her as having had a sexual relationship with a higher-ranking manager, Demarcus Pickett, to obtain her promotion.  The rumor originated with another RCSI employee, Donte Jennings, and the highest-ranking manager at the warehouse facility, Larry Moppins, participated in spreading it.

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The past six weeks of the Brett Kavanaugh confirmation have marked one of the most monumental political events of Trump’s presidency and Supreme Court History. Over 20 million people watched live as Dr. Christine Blasey Ford accused a Supreme Court nominee of sexual assault before the Senate Judiciary Committee.  The hearing highlighted critical issues of political agenda, government policy, and gender discrimination.  Additionally, it compelled viewers to consider the deep-seated, long-term impact of sexual trauma and the importance of sexual violence in today’s political and social climate.

According to the United States Department of Justice, sexual assault is “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.” Perpetrators of sexual abuse are not only physically abusive, but are verbally abusive, antagonistic, and emotionally manipulative. The topic of sexual violence in our society is multi-faceted and complex, rooted deeply in our historical and legal suppression of women. In examining these issues, cultural scientists often focus on the corrosive power of hyper-sexualization in media and  “rape culture,” a term coined by feminists in the late-70s that covers all “jokes, music, advertising, legal jargon, laws, words and imagery” that normalize sexual coercion. People promoting rape culture often regard the prominence of sexual assault as an “inevitable” facet of reality. The effects of over-sexualization and sexual commodification have been distinctly linked to mental conditions such as depression and eating disorders. Additionally, the hyper-sexualization of modern culture has enabled and permitted the ambiguity surrounding the definition of sexual abuse to continue.

Moreover, while there are 321,500 cases of rape and sexual assault reported annually in the U.S., this number is far less than the projected actual number, as victims are often too afraid to report their experiences. Dr. Christine Blasey Ford, whose traumatic experience of sexual assault went unreported for decades, is a classic example of “the silent victim.”  The uniqueness of her case being made public allows us to understand more deeply how an “indelible” trauma like sexual assault can affect our relationships, well-being and sense of safety for years following the incident. The effects of sexual abuse have been linked to an enormity of physiological conditions such as PTSD, borderline personality disorder, substance abuse, suicide, insomnia, panic attacks, generalized anxiety, sexual dysfunction, reproductive disease, cancer, digestive issues, emotional instability, autoimmune dysfunction, diabetes, and heart disease. (New Scientist, Committee on Healthcare) Sexual trauma impacts not only victims, but families, communities, companies, economies, and the environment.  Financially, rape is the “costliest crime for victims in the United States,” racking up to $127 billion annually.  These costs include medical, mental health, social and emergency services; insurance; legal costs; and lost productivity, wages, and fringe benefits.

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Lev Craig

This month, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, including the New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), general business law, and civil practice law and rules. Some of the most important changes involve extending legal protections against sexual harassment to previously unprotected workers, including independent contractors and other non-employees; prohibiting mandatory arbitration of sexual harassment claims and non-disclosure provisions in sexual harassment settlement agreements; and requiring employers to provide sexual harassment training to employees.

As of April 12, 2018, the NYSHRL now protects all non-employees in New York State against workplace sexual harassment. Most other state employment discrimination statutes cover only employees, leaving most independent contractors (including models, actors, and other entertainers who are typically represented by agents), consultants, and other non-employees with few legal protections against workplace discrimination. The new changes to the NYSHRL, however, extend sexual harassment protections under state law to any “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” Under the NYSHRL, an employer is liable for sexual harassment of a non-employee if the employer knew (or should have known) about the harassment but did not take immediate and appropriate corrective action.

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Leah Kessler

On March 27, 2018, in Del Toro Lopez v. Uber Technologies, Inc., Uber agreed to pay a $10 million settlement and make systemic changes to the way it evaluates employees to settle a class action brought by three Latina engineers, who alleged that they were paid less than their white and Asian male colleagues due to Uber’s unfair evaluative methods. The settlement will compensate about 285 women and 135 men of color for financial and emotional harm stemming from the alleged discriminatory practices.

In October 2017, Ingrid Avendaño, Roxana del Toro Lopez, and Ana Medina—all of whom are Latina women who were employed as software engineers at Uber—filed suit in California on behalf of themselves and other aggrieved employees, claiming that Uber engaged in unfair business practices and violated the California Equal Pay Act and Private Attorneys General Act. The complaint alleged that Uber uses a “stack ranking” system for evaluating employees, meaning that Uber evaluates each employee from “worst to best.” The result, as the suit claims, is that “female employees and employees of color are systematically undervalued….because [they] receive, on average, lower rankings despite equal or better performance.” These stack rankings are used, in part, to determine promotions.

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Owen H. Laird, Esq.

In 2016, we reported on Kerrie Campbell’s class action complaint against Chadbourne & Parke, LLP, in which Ms. Campbell alleged that Chadbourne & Park, LLP, had underpaid and blocked female partners from leadership roles at the firm.  Earlier this week, the parties filed papers revealing that they were able to reach a proposed settlement in the case.

Since the action began in 2016, Chadbourne & Parke merged with Norton Rose Fulbright, another large international law firm.  Additionally, two more plaintiffs joined the case, Mary Yelenick and Jaroslawa Johnson, former Chadbourne partners who allege similar facts as Ms. Campbell.

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Leah Kessler

This March we celebrate Women’s History Month (WHM) – an annual event highlighting the contributions of women to events in history and contemporary society. Congress designated March as National Women’s History Month in 1987, seven years after the National Women’s History Project (NWHP) was founded in Santa Rosa, California. The first observance of a Women’s Day, however, was celebrated on February 28, 1909, here in New York. A year later, March 8 was suggested by the 1910 International Socialist Woman’s Conference to become an “International Woman’s Day.”

According to the NWHP, “Today our aim is as clear and simple as it was 25 years ago: to teach as many people as possible about women’s role in history.” And while this goal of accrediting exceptional women for piloting reforms in a society obstructed by its own hatred and exclusionary practices is worthwhile, limiting this praise and tribute to one month out of the year does not feel like enough. This is perhaps due to the fact that this year, WHM comes on the heels of numerous, high-profile sexual harassment and sexual assault allegations—many, if not most, of which occurred in the workplace (see a previous blog on this topic here).

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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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