"Leering" Does Not Create a Hostile Work Environment

The Second Circuit Court of Appeals recently ruled in Lewis v. City of Norwalk (2d Cir. 2014) that a supervisor's occasional "leering" and "licking of his lips" at a subordinate employee was insufficiently severe and too sporadic to create a hostile work environment.

The subordinate complained that beginning in 2006, his supervisor, who was openly gay, "leered" at him and "made gestures with his tongue."  Although it began in 2006 and went on for years thereafter, it became merely sporadic over time.

Eventually, the employee was up for a performance review and his review reflected unacceptable work performance.  He was offered to resign with a severance package, or the employer would fire him.  He refused to resign--so he was fired.  The employee then commenced suit for sexual harassment against his supervisor and former employer.  His claims, however, were dismissed by the federal district court and, on appeal to the Second Circuit, he lost again, the Court holding that the supervisor's conduct was insufficiently severe and too sporadic to constitute sexual harassment.

This case is a reminder that in New York what constitutes conduct that is sufficiently "severe" in the context of a claim of sexual harassment must reach a very high threshold.

The Stakes are High for Misclassifying Employees in 2014

Misclassifying a worker as an independent contractor instead of an employee is creating potentially greater problems for business in 2014.   And it may well prove to be a banner year for the IRS, the U.S. Department of Labor and the  EEOC, which have all articulated their aggressive pursuit of misclassification claims against employers this year. I have warned about the danger of misclassifying workers as independent contractors in the past, and the penalties imposed for doing so.  This year, with an increase in the minimum wage in NY to $8.00 per hour, the implementation of the Affordable Care Act  (ObamaCare) and certain amendments to the Americans with Disabilities Act (ADA), the stakes are even higher. In addition, the U.S. Senate is introducing a bill in Congress (the Payroll Fraud and Prevention Act) to impose more requirements and penalties for misclassification.    Under the new law, among other things, an employer will be required to give written notice to each worker that he/she is considered a non-employee.  If wrongly classified, and the result is a wage underpayment, then the additional amounts already imposed under the Fair Labor Standards Act as a liquidated penalty for violation will be doubled.  The law will also allow the Department of Labor to target certain industries with "frequent incidence of misclassifying employees...."  For example, the construction industry and the restaurant industry. What makes it difficult for businesses to comply with the classification rules is that each government agency has a different definition and a different test for making the determination.  Therefore, employers need to make sure they fit all of the definitions.

"Indefinite Leave" Declared a Reasonable Accomodation!

New York's highest court has ruled this month in Romanello v. Intesa San Paolo, S.p.a. that under the New York City Human Rights Law, an indefinite leave of absence for a disability is not in and of itself an unreasonable accommodation. Instead, says the court, it is up to the employer to prove that such an accommodation would be an undue hardship.

This new ruling stands in stark contrast to the New York State and federal disability discrimination statutes. The courts interpreting those statutes have consistently held that an indefinite leave of absence as the result of a disability is not a reasonable accommodation.

The Court's ruling is significant to employers who must now meet an additional pleading requirement, that is, that the indefinite leave will result in an undue hardship, to satisfy their burden under the New York City law.

Supreme Court Defines the Term "Supervisor" Under Title VII

Last October 2012, I wrote about the case of Vance v. Ball State University, a Seventh Circuit federal appeals court case that addressed the question of who a "supervisor" is for purposes of employer harassment claims alleged under Title VII.

The question is important because under federal law, when the alleged harasser is a co-worker, the employer will only be liable for the harasser's actions if the employee proves that the employer was negligent.  But when the employee is a supervisor who creates a hostile work environment, the employer is liable unless it can prove a defense, for instance, that it had an anti-harassment policy and that the employee who was the victim of the harassment failed to take advantage of such a policy.

The Seventh Circuit in Vance adopted a narrow definition of the term and ruled that a supervisor is  someone who has the authority to make tangible decisions about an employee's work conditions, including hiring, firing, demoting, promoting, transferring and disciplining.  To contrast this definition, the Second Circuit federal court in New York, defines a supervisor less restrictively as anyone who simply has authority to direct the employee's daily work activities.

Vance was appealed to the United States Supreme Court and the Supreme Court's decision was handed down this past June 24, 2013.  In a 5-4 majority opinion the Supreme Court has sided with the Seventh Circuit and ruled that a "supervisor" is someone with the authority to effect significant change in an employee's employment status or has the ability to cause a significant change in benefits.  If such a person is responsible for the harassment, then the employer may be liable, but the harasser's mere ability to direct or supervise another employee's work is not enough to hold the employer vicariously liable.

The Supreme Court's decision, at the same time, explicitly rejects the EEOC's broad definition of the term supervisor.

No doubt the decision will have a significant impact on employee harassment lawsuits going forward; giving employers a decided advantage in this area.

An Employer's Job Description of "Essential Job Functions" Carries Great Weight

What constitutes an "essential job function" under the Americans with Disabilities Act?  It is a question that the courts grapple with everyday because it is a critical element of any disability discrimination claim.  Well, the federal court for the Eighth Circuit Court of Appeals has recently answered the question and has decided that an employer's judgment carries great weight in making the determination. The court held that the job description by the employer, not the employee's specific experience on the job, is what counts most.

 In Knutson v. Schwan's Home Service Inc. (April 2013) an employee was terminated after two years on the job on the ground that the employer claimed that the employee was no longer able to meet the physical standards described in his job description. The employee sued under the ADA alleging discrimination. He claimed that he rarely drove a commercial vehicle as part of his normal job duties, and so, when he suffered a serious eye injury and could not obtain Department of Transportation certification to drive a commercial vehicle (a requirement in his job description), he could nevertheless perform "the essential job functions" of his work. His termination, he claimed, therefore violated the ADA.  The employer, however, proved that the employee's ability to drive a commercial vehicle was essential to the job no matter how infrequently this ability was used, and that it was listed in the job description as a qualification for the position.

 The Eighth Circuit agreed with the employer and held that the job description is what counts when determining whether an employee can perform the essential functions of the job.

Whether or not state or federal courts in New York presently agree with the Eighth Circuit, the decision underscores the importance of clear, complete and up-to-date job descriptions, and documented business-related reasons for decisions affecting employees.  Being able to document a consistent application of job requirements and the necessity of those requirements will bring employer's one step closer to successfully defending against a disability discrimination claim under the ADA.

Supreme Court to Decide Who's the Boss in Sexual Harassment Cases

Increasingly, individual employees are being named in employment lawsuits because of their perceived involvement in adverse employment decisions made by their employer.  The reason is:  if the employee is involved in an alleged incident of sexual harassment, for example, and he or she is a "supervisor," the employer may be held liable for the acts of that employee.

However, federal employment law, at least in the context of sexual harassment claims, makes a distinction between supervisors and non-supervisors or co-workers.  Under federal law, when the alleged harasser is a co-worker, the employer will only be liable for the harasser's actions if the employee proves that the employer was negligent.  But when the employee is a supervisor who creates a hostile work environment, the employer is liable unless it can prove a defense, for instance, that it had anti-harassment policy and that the employee who was the victim of the harassment failed to take advantage of such a policy.

This term, the U.S. Supreme Court is expected to decide, in the case of Vance v. Ball State, 2008 U.S. Dist. LEXIS 69288 (S.D. Ind. 2008) aff'd 646 F.3d 461 (7th Cir. 2011), the issue of the scope of supervisor liability, and resolve the question of who qualifies as a supervisor.  Here in the Second Circuit, the court of appeals has defined the term supervisor broadly to include any individual with the power to direct and oversee the work of the alleged victim. This is also the definition adopted by the EEOC.  More specifically, the Second Circuit has held that for the purpose of supervisor liability, a supervisor is one who possesses "authority to direct the employee's daily work activities" even if he lacks the authority to take tangible employment actions against the victim.  Mack v. Otis Elevator, 326 F.3d 116, 127 (2d Cir. 2003).  Other federal courts have applied more narrow definitions of the term.

The Supreme Court will likely adopt either a broad or a narrow definition, but until then employers in New York are well advised to follow the broader definition of "supervisor" and understand that they will be liable to an alleged victim of harassment for the acts of an employee who is responsible for directing and supervising work, not just one who has the authority to make employment decisions.

Stay posted for the Supreme Court's decision.

Defending Against Age Discrimination Claims Has Just Become a Little More Difficult

Recently, the EEOC issued a final rule making it more difficult for employers to establish the "reasonable factor other than age" defense for disparate impact age discrimination claims by employees.

Under the Age Discrimination in Employment Act an employee may bring an action against his or her employer for either disparate treatment or disparate impact.  A disparate impact claim alleges that the employer has a policy or procedure that may appear neutral, but in fact adversely affects employees who are older than 40 years of age.

One defense that employers have typically raised in the face of a disparate impact claim is that the policy or procedure was "reasonable and based upon factors other than age."  But now that defense has been heightened.

The new EEOC rule, which took effect on April 30, 2012, requires an employer to establish not only that the policy or procedure was based on reasonable factors other than age, but that it was reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known or should have been known to the employer at the time.

What this means to employers is that a much more thorough analysis of the business' circumstances and its needs must be conducted before changing or implementing any new policy or procedure that could impact the older employees even if there is a reasonable basis for the change.

New York Appellate Court Sets Standard for the Preservation of Electronically-Stored Information in Anticipation of Litigation

The preservation of electronically-stored data and documents, including email communications, when parties anticipate litigation, has been the subject of much debate and many court decisions in the past few years.

The obvious concerns are that parties that anticipate litigation may (a) intentionally destroy such data if it is believed to contain harmful evidence against the business, or (b) accidentally destroy the data, or (c) simply destroy the data as a routine part of their practice to purge certain documents and communications.

Until recently, the New York state courts had not articulated a set standard for when a party must implement an appropriate “hold” in order to avoid the destruction of electronic data and documents, including emails. The Federal courts had done so in 2003 with the notable decision in Zubulake v. UBS Warburg, LLC.

Now, at least one appellate court in New York, the Appellate Division, First Department, has adopted the same standard formulated by the Zubulake court.  The court in Voom HD Holdings, LLC v. EchoStar Satellite, LLC, 2012 WL 265833 (1st Dept. 2012) so held this past January 2012. 

According the Appellate Division, First Department, now, whenever a party reasonably anticipates litigation, the party must take steps to implement a hold policy on the destruction of the data even if litigation has not commenced, no notice of any claim has been served, or the parties are attempting to negotiate a resolution of the dispute.

Third Party Retaliation Claims Get a Little Help From the Supreme Court

Eric and his fiance, Miriam, work for the same employer.  Everyone in the workplace knows of their relationship. One day, Miriam files a charge with the EEOC alleging that she has been discriminated against on the basis of her gender.  After the employer is notified of the charge, Eric is fired.  Does Eric have a claim of retaliation against his employer even though he was not the one who complained about the discrimination?  Well, until recently Eric would not have had a claim of retaliation if he was not engaged in a protected activity at the time of the retaliatory action. However, this year the United States Supreme Court decided that he did.

Prior to the Supreme Court's decision in Thompson v. North American Stainless LP earlier this year, "third-party retaliation" claims were analyzed by reviewing the language of the anti-retaliation provision at issue. And, generally speaking, denial of the claim was based on a conclusion that the person retaliated against must be the same person who had engaged in a protected activity (like Miriam, who had complained about gender discrimination).

Lo and behold the Supreme Court now says that a person aggrieved under Title VII is one who is "within the zone of interests" protected under Title VII, and it concludes that Eric was within the "zone of interest," was aggrieved by the employer's actions, and had standing to sue.

Of course, this holding raises the obvious question: how big is this "zone of interest"? Do we include husbands and wives? Siblings? Cousins?  What about non-familial relationships?  What about a family member who is not employed by the same employer, but whose employer is somehow induced to fire him or her? 

While no New York court has specifically ruled on the question of third-party retaliation claims, recent New York federal court cases decided in the past few weeks seem to have applied the broad intention of the ruling in Thompson.  The Second Circuit, for example, in Tepperwien v. Entergy Nuclear Operations, Inc., (observing the Thompson court's dicta) stated that  “[g]iven the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII's antiretaliation provision is simply not reducible to a comprehensive set of clear rules.”

EEOC Expands Definition of Disability

The Equal Employment Opportunity Commission has issued final rules, effective May 24, 2011, interpreting the Americans with Disabilities Act Amendments Act of 2008. The new rules broaden coverage under the Act and change the focus from whether an employee has a disability to whether the employer has satisfied its obligation to accommodate a disability.

Until now, it was generally accepted that the determination of whether a particular condition constituted a legal disability was dependent upon an “individualized assessment.” Under the new regulations, however, the EEOC lists a number of conditions that will “virtually always” constitute a disability, including, for example, cancer, diabetes, HIV infection, bipolar disorder and schizophrenia. The rules also specify that a disability of any duration may be a covered disability, which would include episodic conditions and conditions that are in remission.

Greater protection is also afforded employees who are “regarded as” disabled. These employees are protected if the employer has a perception that the employee has an impairment—regardless of whether the impairment is perceived as an actual disability.


The Amendments Act of 2008 and the new EEOC rules are an attempt to reverse a series of relatively recent Supreme Court decisions that placed greater restrictions on the rights of individuals with disabilities. There is no question that now employers should interpret the concept of “disability” broadly, and that the focus of the employer should be less on whether or not the employee is disabled and more on whether it has policies and procedures in place to reasonably accommodate the disability.