Are “Cute” Employees A New Protected Class in New York?

New York employers now have a new class of employees to be wary of – the “cute”.  A New York appellate court just issued a decision reviving a gender discrimination claim brought by a female plaintiff, who alleged that she was fired because her employer’s wife thought she was too “cute” and a threat to her marriage. Edwards v. Nicolai.

The Claim

Plaintiff Dilek Edwards was hired by Charles Nicolai, a chiropractor, to be a yoga and massage therapist in his practice in April 2012. Nicolai’s wife, Stephanie Adams, a former Playboy Playmate, also works in his practice.  Plaintiff alleged that, despite defendant’s praise of her work, he also told her that his wife was “jealous” of her because she was “too cute”.  A few months later, Edwards was abruptly fired by the wife after a late night text rant from Ms. Adams telling the plaintiff she should “stay the — away from my husband.”

The text message went on to say: “you are NOT welcome at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the F*** away from my husband and family!!!!!!!.” The next day, Nicolai sent Edwards an email telling her she was fired.

Plaintiff sued for gender discrimination under the New York State and City Human Rights Laws as well as for defamation.

The Decision

Initially a lower court granted defendants’ motion to dismiss the complaint but the decision was just overturned by an appeals court in New York.

First, the appellate court held that malice could be inferred from the allegations in the complaint, and thus plaintiff did have a defamation claim.

Second, the court also revived plaintiff’s gender discrimination claim stating: “While plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant’s motivation to terminate plaintiff’s employment was sexual in nature.”

The panel noted that Plaintiff alleged that she had received praise for her work and reasoned that plaintiff did have a claim for gender discrimination because “adverse employment actions motivated by sexual attraction are gender based and, therefore, constitute unlawful gender discrimination.” Defendants argued that this case is similar to the line of ‘spousal jealousy’ cases involving employees being terminated after having consensual affairs with their boss. However, the court found them distinguishable and reasoned that in those cases it was the employee’s behavior (the affair), not just a perceived attraction, that led to termination.  The court found that there was no allegation that Plaintiff Edwards has ever behaved inappropriately or that she had any affair with Dr. Nicolai. Thus, it was only her gender that was the basis for the termination.

Lessons Learned

Of course, this is just an initial motion and Ms. Edwards has a long way to go and must now prove her claims.  Nonetheless, this case does signal yet another expansion of employment protections in New York.

The core lesson from this decision is – employers cannot assume New York is an “at will” state any more.  Due to the expanding breadth of our state and city discrimination laws, virtually every employee fits into some protected category and courts and juries will often find a way to challenge irrational or unfair employment decisions as discriminatory.

As a management attorney, I could argue the employer’s side, that a jealous wife should be able to fire a “cute” employee, as her employment was “at will”.  However, the First Department clearly did not agree and felt that this decision – as evidenced by the text message – was based on plaintiff’s female gender and some imagined threat that the wife perceived that plaintiff presented to the employer’s marriage.  It appears the judges on the panel did not believe there was a legitimate reason for the plaintiff to lose her job.

It’s an old adage, but the bottom line is – if you are going to terminate an employee, make sure that you have a legitimate reason for the decision.  It is also important to document work and performance issues to support that decision.

And lastly, don’t send angry text messages to your employees in the middle of the night.

 

 

New EU Privacy Legislation Clashes with US Discovery Obligations: Forewarning for companies with employees on both sides of the Atlantic

The European Union is launching new privacy and data protection rules in May 2018. This new regulatory framework, known as the General Data Protection Regulation (GDPR) is known to have a substantial extra territorial reach (also likely to apply to every US organization processing personal information of even a single individual in the EU) and boast sanctions of up to € 20 million in fines or, in the case of an undertaking, 4 percent of the annual worldwide turnover.

The GDPR prohibits the transfer of any personal data processed in the European Union to a country whose privacy laws are considered inadequate, as is the case for the US. This may create a problem when an employer needs to comply with US discovery obligations.

It is Article 48 of the GDPR which explicitly states that a judgment by a non-EU court or administrative authority is not a valid basis for transferring data. Such orders or judgments will only be recognized if based on an international agreement, convention or treaty between the third country and the EU or member state, such as e.g. mutual legal assistance treaties or the Hague Convention.

After May 2018, disclosures to opponents in response to U.S. civil discovery requests involving data protected under GDPR will either need to rely on an appropriate international agreement or find other acceptable bases in the GDPR for transferring data out of the EU.

Preparation and coordination of all data transfers will be key in reconciling US discovery obligations and EU privacy legislation. The stakes, both on the US and EU side, have never been higher. The Kelley Drye Labor and Employment team stand ready to assist clients prepare for and navigate this complex new process.

EU team: Bert Theeuwes, Saskia Lemeire
US team: Barbara Hoey, Mark Konkel

Is Misogyny Protected Activity?

The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world. Continue Reading

The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act

Under the federal WARN Act, companies that maintain a facility with 100 or more full-time employees are required to provide no less than 60 days’ written notice to employees affected by a mass layoff or facility closure. Many employers are faced with the difficult task of determining whether or when these notices should be distributed.

The WARN Act contains several affirmative defenses that are designed to address this conundrum, and provide employers with a complete defense to liability under the statute when a company’s exigent condition forces an immediate cessation of operations. These exceptions to the WARN notice obligations are identified as the ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ exceptions. Employers faced with possible pending layoffs or facility closures should consider both of them independently.

Read more in the Employment Law Strategist article, The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act, written by David Van Pelt (access may require subscription).

Banning Visible Political, Philosophical or Religious Signs in the European Workplace – Does Your Policy Need Updating?

The highest court of the European Union recently issued two judgments allowing employers to ban the visible wearing of political, philosophical or religious signs at the workplace (Judgment of the Court of Justice of the European Union in case C-157/15 and in case C-188/15). If you have a policy in place for your EU-based employees that touches upon the wearing of political, philosophical or religious signs, you should verify whether that policy is in line with this latest interpretation of the principle of equal treatment.

On 14 March 2017, the European Court of Justice ruled that “an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination”. The two cases concerned the dismissal of two women for wearing the Islamic headscarf, which was prohibited by the employer. The Court decided that wearing the Islamic headscarf could be banned without constituting discrimination, but only as part of a general policy barring all religious and political symbols. Furthermore, that policy must have a legitimate aim such as, for example, pursuing neutrality in the relation with customers. Lastly, such a policy must be achieved through appropriate and necessary means.

Continue Reading

Are We Being Taped? – The Second Circuit Weighs in on Workplace Taping

In the era of the ever-present cell phone, where many people seem to video and record (and then post to social media) virtually everything that goes on in their lives, employers have tried to limit such activity in the workplace with blanket “no recording” policies. These were just dealt a blow last week, when the Second Circuit affirmed a decision by the NLRB, which held that very broad  no-recording policies do violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). See Whole Foods Market Group Inc. v. NLRB, 16-0002 (2d Cir. June 1, 2017).

  • Are all such policies now unlawful?  NO.
  • What should employers do?  Read on. Employers now need to go back and review their policies and, if it can be justified, create a tailored policy designed to protect information that deserves protection, but is not so broad that it can be seen as curbing employee’s rights to organize and bargain collectively.

Continue Reading

Gay Bias Is Still In The News

The Second Circuit has announced that it is scheduling en banc review and has asked the EEOC to weigh in on the controversial question of whether Title VII covers discrimination on sexual orientation.  The court has invited the EEOC to brief and participate in oral argument in the case of Zarda v. Altitude Express, Inc. (15-3775), where a gay skydiving instructor has accused his employer of unlawful discrimination.

The Seventh Circuit has already held that Title VII does prohibit sexual orientation discrimination.  There is also a pending en banc appeal of this issue in the Eleventh Circuit.

We will be monitoring this and other Second Circuit cases closely and will let you know as things develop.

Should a Statement Made at Mediation Ever be Used in Court?

We have been watching with some concern recent developments in a much-publicized gender discrimination action filed in DC federal court by a female partner and practice group head in the Washington, D.C. office of Proskauer Rose LLP. The plaintiff filed her $500 million gender bias suit under a Jane Doe pseudonym on May 12, 2017, alleging that the firm engaged in salary discrimination and retaliation.  Proskauer vehemently denied Jane Doe’s allegations, and maintains that she was compensated fairly in accordance with her contribution to the firm, and its pay structure.

Last week, the legal press reported that the plaintiff was making the explosive allegation that she had been “threatened” with termination by the firm, after making an internal complaint of discrimination. It turns out that the alleged “threats” were made during a failed mediation held at JAMS, just before the suit was filed. Plaintiff “Jane Doe” claimed that a Proskauer attorney stated during mediation that she was “ going to be terminated,” because her “complaint upset a lot of people.”

This alleged “threat” was then made a matter of public record when Jane Doe’s counsel filed an emergency motion in the federal action, asking the court to order the mediator’s notes preserved, to settle a “potential he-said-she-said impasse,” on whether these alleged threats had been made. The same day Jane Doe filed her emergency motion, the court issued a minute order granting it, explaining “pursuant to the court’s inherent authority to oversee discovery and the need to preserve the status quo pending a fuller evaluation of the issues, JAMS must preserve the mediator’s notes from the parties’ March 23, 2017 mediation session and all other documents related to the mediation pending further order of the court.  Continue Reading

The “Knife’s Edge”: Second Circuit Dulls the Standard of Proof Needed for a Hostile Work Environment

The Second Circuit recently reversed a district court’s dismissal of a hostile work environment claim brought by a Muslim plaintiff.  See Ahmed v. Astoria Bank, et al., 16-1389 (2d Cir. May 9, 2017).  In-house counsel and human resources executives should take heed of this decision, which may signal a loosening standard for what may constitute a hostile work environment.  As we all know, once a plaintiff gets past summary judgment, the settlement value of a case will increase drastically.  As we will talk about below, it becomes even more important to be proactive and prevent these claims.

The Facts

The plaintiff, Sherin Ahmed, was an Egyptian and Muslim, and wore a hijab head covering.  She only worked for Astoria Bank for three months, but claimed that managers subjected her to a “hostile work environment” by:  (1) on the day of Ms. Ahmed’s interview (coincidently September 11, 2013), a vice president made comments insinuating that people of Arab or Middle Eastern ethnicity were “terrorists”; (2) on several occasions, the same employee made jokes regarding Ms. Ahmed’s hijab head covering; (3) Ms. Ahmed’s supervisor “singled her out” on the days she arrived late for work; (4) the supervisor would also speak slowly and use hand gestures to communicate with Ms. Ahmed, which she inferred as the supervisor not believing Ms. Ahmed spoke English; (5) the direct supervisor denied Ms. Ahmed’s request to be relieved without pay for a few hours on a major Muslim holiday, despite two other Muslim employees supervised by other managers being given the day off; (6) the direct supervisor made an allegedly “condescending” and “judgmental” comment about Arabic women wearing a head covering; (7) the supervisor also made a comment regarding terrorists; (8) the supervisor refused to allow Ms. Ahmed to take chocolate from the supervisor’s office, despite allowing other employees to do so; and (9) the supervisor reprimanded Ms. Ahmed for leaving early during inclement weather, despite Ms. Ahmed having permission to do so.

The District Court’s Decision

The district judge explained that Ms. Ahmed had a “weak case.”  Despite this view, the judge stated he was “right on the knife’s edge” of either dismissing the case or allowing it to go to a jury.  Ultimately, the judge dismissed the hostile work environment claim since Ms. Ahmed could only point to a few incidents over the course of her three-month employment period in support of her claim.  The district judge held this did not show there was a “steady barrage of opprobrious racial comments” to support a hostile work environment claim.

The Second Circuit’s Reversal

The Second Circuit took a different view from the district court and found that the knife’s edge favored Ms. Ahmed.  The Second Circuit was persuaded by the claims that the vice president “constantly” told Ms. Ahmed to remove her hijab, that he referred to the hijab as a “rag” and had demeaned Ms. Ahmed’s race, ethnicity, and religion.  They also credited her claim that the vice president made a derogatory comment towards Ms. Ahmed during her interview (that occurred on September 11, 2013) referencing “terrorism.”  The Court held that this evidence, together with the comments and conduct of Ms. Ahmed’s supervisor, was enough to allow the case to proceed to a jury since it may show a hostile work environment.

Employer Takeaways

This decision should serve to remind employers of the important lesson that there is no bright line rule as to what constitutes a hostile work environment, and even a few comments over a short period can be enough to support a claim.  Judges are forced to finely parse evidence and compare it to an ever-changing body of case law.  When a judge has to engage in these fact-specific inquiries, they are more likely to allow the case to go to trial for a jury to sort out the evidence.  Once the case is in the hands of a jury, all bets are off.

The first and best solution is prevention so that these incidents don’t happen.  You need:

  • Clear and simple policies, which are displayed and posted in multiple venues in the workplace;
  • The next thing you need is training. You cannot do enough training of all managers and any employee who does interviews.  They must understand that any “joke” or “innocent” comment can be misunderstood.  Second, train them to warn colleagues when a conversation is going astray;
  • Finally, you need a clear and simple complaint procedure, giving employees multiple avenues to complain, and you need to respond to complaints, promptly investigate and take real action to remediate the allegations.

Employers who are not proactive to ensure these incidents don’t happen in the first place may find themselves facing a lawsuit where, as this case shows, the outcome is entirely unpredictable.

One Employee in Europe Could Trigger New EU Data Protection Obligations

An Update on the New EU General Data Protection Regulation

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On 16 April 2016, the EU adopted the General Data Protection Regulation (“GDPR”), which largely rewrites and harmonizes the European legal framework of data protection. The new regulation will become applicable in May 2018, but given the scope and complexity of the GDPR it is important to prepare for this legal change well in advance.

Global scope?

With the GDPR, there will be a substantial expansion of the territorial scope of the EU data protection obligations, which may impact US companies and employers who were previously not affected by EU data protection rules. In determining its geographical reach, the GDPR considers not only the location of the processing, but also the location of the individual whose data is being processed. In this context, if your group of companies has one EU-based employee, the GDPR could be applicable to your organization. Note that the GDPR would also be triggered by processing personal data of EU-based customers.

Processing information?

If your group of companies has one EU-based employee, and it processes (i.e., collect, use, transfer or electronically store) personal data of this employee the GDPR may apply. “Personal data” includes information that is typically considered personal, such as an employee’s name, address, income details and medical condition, but also includes not always considered personal, such as an employee’s computer or device IP address device identifiers, or other “unique identifiers.” Even if you as an employer offer certain services that give you access to such personal data, such as an IT helpdesk, server access, etc., the GDPR could apply to you.

What do I need to do?

First, you should determine whether your group of companies has EU-based employees or is otherwise processing information related to EU-based employees.

If you have EU-based employees and are processing such information, you should conduct an internal GDPR review to determine which department or which companies (e.g. IT help desk, HR, accounting, etc.) are in scope for GDPR compliance obligations, evaluate current compliance and gaps to be resolved by May 2018, and set up the necessary structure for compliance with the GDPR. The level of data protection in the EU is considered (by the EU) to be higher than in the US, and US companies should be prepared for the disclosures, specific guarantees, and obligations under the GDPR. Depending on the circumstances, the GDPR will even require US-based companies with access to personal information to designate a representative based in an EU country to act as the point of contact for the relevant data protection authorities. Given the technical and detailed requirements companies may benefit from the use of targeted guidance.

Sanctions?

The global reach of the GDPR calls into question the enforceability on US-based employers. Violating the GDPR can result in penalties of up to € 20 million or 4% of the annual worldwide turnover of the company (i.e., annual worldwide gross income), whichever is higher.

Bottom line?

The GDPR will not apply until 25 May 2018, but the time for action is now. All HR departments and/or employers should carry out a data review and assess whether the GDPR is applicable and what impact it has on its activities, this in order to implement the necessary changes in time.

If you need additional guidance, an employment attorney will be able to provide guidance both on US and EU aspects of data protection law.

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