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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 Laird, Esq.

Today is Opening Day for the 2018 Major League Baseball season. Spring training is over, and while the Major Leaguers head back to their stadiums, the Minor League players who didn’t make the cut are headed back to work as well. Those Minor Leaguers might be a little worse off this year because of the sweeping $1.3 trillion budget bill that President Trump signed last week. One of the more nuanced aspects of the bill is an amendment to the Fair Labor Standards Act (“FLSA”) known as the “Save America’s Pastime Act.” This amendment aims to “save” baseball by suppressing the wages that minor league teams pay to their players.

While major league baseball players enjoy a minimum annual salary—which amounts to hundreds of thousands of dollars per year, with top players earning tens of millions of dollars a year—minor league baseball players are a different story. Not only do minor league players significantly outnumber major league players, but, unlike major league players, minor leaguers are not unionized. As a result, baseball’s minor leagues are populated with thousands of players, many of whom are barely squeaking by.

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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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The Harman Firm is proud to report that on February 12, 2018, Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York denied summary judgment in Umanzor v. New York City Police Department. The court’s decision allows the disability discrimination claims brought against the New York City Police Department (NYPD) by plaintiff Randy Umanzor, who is represented by The Harman Firm, LLP, to proceed to trial.

In May 2013, Mr. Umanzor was diagnosed with multiple sclerosis (MS) after experiencing symptoms of weakness and numbness. After his diagnosis, Mr. Umanzor began a treatment regimen, including a prescribed steroid medication and Vitamin B12 injections, but continued to experience some minor MS-related symptoms, like tingling, numbness, and fatigue. Mr. Umanzor applied to join the NYPD’s Police Cadet Corps in February 2014, after being diagnosed with and treated for MS. He passed the physical examination with flying colors.

However, after Mr. Umanzor disclosed his MS diagnosis during the application process, the NYPD placed him “on review.” Mr. Umanzor provided the NYPD with his medical records—which were unintentionally incomplete—and a note from his neurologist, confirming that Mr. Umanzor was “medically stable” to join the NYPD and that his neurological exam was “normal except for mild sensory loss in the first two fingers on the left hand.” After receiving these documents, the NYPD disqualified Mr. Umanzor based on the “brief period of time that had elapsed between his MS diagnosis and the date that he applied to the Police Cadet Corps.”

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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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On February 21, 2018, the U.S. Supreme Court ruled in favor of petitioner Digital Realty Trust (“Digital Realty”) in Digital Realty Trust Inc. v. Somers, narrowing the definition of “whistleblower” under the 2010 Dodd–Frank Wall Street Reform and Consumer Protection Act (“Dodd–Frank”). The decision clarifies that Dodd–Frank’s anti-retaliation provisions do not apply to employees who only report violations internally within their company. In order to be covered by Dodd–Frank’s employee whistleblower protections, employees reporting securities law misconduct must go to the Securities and Exchange Commission (SEC).

Dodd–Frank was passed in 2010 in response to the 2007–2008 financial crisis with the aim of increasing responsibility and transparency in the financial industry, ending bailouts and “too-big-to-fail” banks, and creating restrictions on abusive financial services practices that hurt consumers. The law made many significant changes to financial regulations in government agencies, banks, and other financial services entities, including creating whistleblower protections for those who report unlawful activities in the financial industry. As the SEC explains, Dodd–Frank “expressly prohibits retaliation by employers against whistleblowers and provides them with a private cause of action in the event that they are discharged or discriminated against by their employers in violation of the Act.”

In Digital Reality Trust, Paul Somers alleged that his former employer—Digital Realty, a real estate investment trust—terminated his employment after he internally reported suspected violations of securities law to Digital Realty’s management. Somers then brought suit against his former employer alleging whistleblower retaliation claims under Dodd–Frank, which Digital Realty moved to dismiss on the grounds that Somers was not covered by Dodd–Frank because he had brought his concerns only to internal management, not the SEC. The district court and U.S. Circuit Court of Appeals for the Ninth Circuit denied Digital Realty’s motion, allowing Somers’s whistleblower claim to proceed. Digital Realty then appealed to the U.S. Supreme Court, which reversed the Ninth Circuit’s decision and dismissed Somers’s Dodd–Frank whistleblower claim.

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Edgar M. Rivera, Esq.

On February 26, 2018, in Smith v. North Shore-Long Island Jewish Health System, the U.S. District Court for the Southern District of New York denied a motion for summary judgment submitted by North Shore–Long Island Jewish Health System (the “Hospital”) to dismiss claims under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and New York City Human Rights Law (NYCHRL) brought by Nola Smith, a former registered nurse with the Hospital, finding triable issues based largely on evidence that the hospital strayed from following its established policy.

Throughout Ms. Smith’s tenure with the Hospital, she suffered from anxiety disorders and panic attacks. The Hospital accommodated her with a lighter work schedule than other nurses, and she took intermittent leaves of absence under the FMLA.  The Hospital, however, issued Ms. Smith multiple warnings for her use of leave, even though some of the leave was under the FMLA and therefore protected. (The Hospital generated a spreadsheet of nurses who called in sick more than three times per quarter, regardless of whether the absences were covered by approved leave under the FMLA.)  The Hospital also allegedly denied Ms. Smith’s transfer requests and did not allow her to attend career-enhancing conferences because of the number of her leaves of absence. At one point, the Hospital did allow Ms. Smith to attend a conference, but she could not find anyone to cover her shift and ended up missing the conference.  The Hospital, however, paid Ms. Smith for the conference attendance, which payment Ms. Smith assumed represented accrued paid time off.  The Hospital later discovered that Ms. Smith had not attended the conference and fired her for accepting pay for a conference she failed to attend.

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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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