HR and Legal Updates Week of August 2, 2010

New York - NYC Employers Are Strictly Liable For Supervisor Discriminatory
Behavior

This ruling by the NY Court of Appeals means that in NYC if a supervisor commits the discriminatory behavior (here sexual harassment) the employer will ALWAYS be liable even if the plaintiff never even reported it to anyone! In the past employers could avoid liability under the New York
City Human Rights Law if no adverse employment action took place, the employer took reasonable efforts to prevent or correct behavior, or the associate did not take advantage of any of the complaint reporting procedures the employer may have in place. But the Appeals court found this defense, known as Faragher-Ellerth Test is not available for claims brought under the NYCHR Law.


EEOC vs. Adecco - $62,500 Settlement for Retaliation Lawsuit

This settlement highlights a new disturbing trend in litigation which is the rise of the retaliation claim. In this claim a female supervisor filed a charge of sexual harassment against her supervisor. But the retaliation lawsuit was brought by her male subordinate who claimed that he was terminated for speaking out and supporting his manager's complaint! The important thing to remember with retaliation complaints is that the plaintiff does not have to prove the discrimination happened. For retaliation all that is required is that the plaintiff show they were penalized for "testifying, assisting in, or participating in" a proceeding that is protected by the law (someone filing a discrimination complaint). This settlement is just another reminder to document every step in the performance management process.


EEOC v. John Weiland Homes - $378,500 Settlement of Race and Gender Discrimination Claim

This case is a great example of "disparate impact" discrimination where what seems like a neutral employer policy can adversely affect a whole protected class of people (here African Americans). In this case the home builder assigned agents to sell homes in different areas based on the race of the surrounding community. This resulted in African American agents being assigned to similar communities and making less then their Caucasian counterparts who were assigned to higher home priced communities. An interesting detail about this settlement is that the agreement requires the company to hire at least 10 African American women into management positions within the next 6 years.


EEOC vs. Sears - $30,000 Settlement for Age Discrimination Lawsuit