Expert lawyer, Tayeb Hyderally spends a large amount of his time educating both employees and employers about the various aspects of discrimination in the workplace and how it can be avoided. Both groups need to be well informed about their rights and responsibilities to ensure that all individuals are allowed the opportunity to work in a workplace which is free from discriminatory practices. And employees as well as employers are responsible to ensure that it does not occur and if it does that it is reported properly and taken care of quickly. No matter how educated we become regarding these very important employment law issues, sadly it occurs in many establishments today. In our thinking sometimes there are certain classes of people, such as doctors and lawyers, who are “above” discrimination. This is not the case as we will see in this case concerning a doctor who was the object of age discrimination in the workplace.
Dr. Zane Hurkin VS Woodward Resource Center
Dr. Zane Hurkin of Clive, Iowa was hired at Woodward Resource Center which is a facility through which treatment and services for mentally disabled individuals are provided. Dr. Hurkin was only on the job for 8 days before he was unjustly fired. Jill Zwagerman, his attorney, stated that he had been asked questions that were age-related during the interviewing process and upon being hired he was inadequately trained. His pay was also several thousand dollars less than the pay grade that had been posted.
Dr. Hurkin alleged that he was subjected to discriminatory treatment as well as harassment regarding his age and was denied job responsibilities. He stated that he did not receive training for some aspects of his job. He also alleged that his hours and pay had been reduced and he was not paid on an equal level with his peers and then he was terminated.
Dr. Hurkin stated that he had been asked some age related questions when he was interviewed for the job and after he was hired he was harassed and discriminated against because he was 81 years old. The company first cut his pay and then his hours before they fired him after only 8 days on the job. He had been a practicing physician for about 55 years and following the termination, Dr. Hurkin suffered from depression and required medical treatment.
According to the official court documents, the pay scale normally allotted to the position Dr. Hurkin was hired for paid somewhere between $162,843 and $231,608 annually. However, the doctor was only being paid $105,000 per year. The lawsuit alleged that he had indeed been subject to discriminatory practices. The courts agreed and he was awarded $140,000 in lost wages. He also received another $200,000 for emotional distress, both past and future. According to the Iowa Attorney General’s office a representative of Woodward Resources Center stated that they did not know if the facility would pursue an appeal of the jury’s decision or not. Their spokesman, Geoff Greenwood said that they would review their options.
Sexual harassment in the workplace can quickly contribute to a hostile work environment. On top of this injustice, those who report such misbehavior are many times retaliated against in many ways. This is when it is time for employment law experts such as Ty Hyderally to step in and take action. Both of these actions, sexual harassment and retaliation for reporting are in violation of employment laws that are in place. When these types of injustices occur, the U.S. Equal Employment Opportunity Commission (EEOC) steps in to litigate. In order to avoid such a big mess in the workplace, expert lawyers like Tayeb Hyderally work to inform businesses and workers of their rights and responsibilities as they pertain to employment law.
A jury just awarded $350,000 to three women who used to work at Endoscopic Microsurgery Associates which is a medical practice located in the Baltimore area. The women alleged that they were exposed to unwanted and unsolicited sexual advances by the company’s CEO. The EEOC’s suit states that Linda Lux, the company’s receptionist was repeatedly suffering unwanted sexual advancements which was creating a hostile environment in which she had to work. The company’s CEO, Dr. Mark Noar and its CFO, Martin Virga continually made sexually motivated advances toward Ms. Luz who kept on refusing the advancements. The practice then began to retaliate against her by disciplining her for nonexistent infractions in behavior and rescinding leave that had been approved before. Eventually these built up until she was terminated. Study coordinator Jacqueline Huskins and Nurse Kimberly Hutchinson both reported that they also suffered similar experiences and advances from both Virga and Noar.
The company and the EEOC could not reach a suitable settlement through the conciliation process. It went before a jury of 9 Baltimore residents who found unanimously that the ladies were entitled to compensatory damages in varying amounts from $4,000 to $110,000. Each of the women also received $110,000.
This is a very significant verdict as it sends a message to those in high positions. It lets them know that just because they work at a high level in a reputable company; it does not mean that they are exempt from employment laws. They must continue to treat other employees in a professional manner. Cases such as these help remind companies how important it is for sexual harassment policies to be in place in their company. Their employees should know how, where and to whom these types of behaviors must be reported. They must also realize that retaliatory actions for reporting an incident such as this will be penalized.
The EEOC is the government agency which has the responsibility of enforcing Title VII of the Civil Rights Act of 1964. They work with lawyers such as Tayeb Hyderally to prepare companies for these types of situations. Employment law specialists such as Ty Hyderally can help companies develop policies which inform employees of their rights and responsibilities in dealing with sexual harassment and retaliatory actions for reporting in the workplace.
It is somewhat like adding insult to injury when a termination follows a sexual harassment complaint. These discriminatory actions are prohibited by employment law and businesses who do not comply by addressing a situation properly when sexual misconduct. It is the responsibility of the worker to report the sexual harassment or hostile work environment, and then it is the company’s responsibility to investigate and take appropriate measures to protect their workers. Company’s who do not adequately protect employees can be sued by employees who have been discriminated against. Sadly, some companies retaliate against the person reporting the misconduct. Employment lawyers such as Tayeb Hyderally educate businesses and their employees on employment law. When companies do not comply or fail to properly protect their employees, expert employment law attorneys like Ty Hyderally are prepared to successfully litigate.
A recent employment law case involving sexual harassment and retaliation occurred in Southeast Texas. A woman was working at Excel maintenance Services Inc. where she states that she was constantly subjected to sexual harassment and a hostile environment along with illegal retaliation. Ruby Thomas stated in her suit which was filed in a Galveston federal court, that she was the object of verbal and physical actions involving harassment while she was employed as a bagging operator at the facility.
Ms. Thomas alleged that the foreman requested sexual favors, touched her inappropriately and made many lewd comments. However, the company took no immediate action in order to correct, prevent or in any way address the alleged misconduct. She stated that she reported the abuse to her superiors in 2010 and she was immediately placed on a paid leave of absence so that an investigation could be conducted. Stated in her original petition is that the supervisor who was accused of the inappropriate sexual actions began to retaliate against her when she returned to work by assigning her to work in undesirable, remote or dangerous locations which also secluded her from her fellow employees.
On April 119, 2011 Ms. Thomas was terminated for an alleged accident while operating a forklift. Her suit claims that it is in retaliation and a “pretext for illegal discrimination.” The suit also states that other workers were in similar “accidents” and in violation of safety regulations but were not treated as severely. Ms. Thomas states that she had maintained a spotless work record before her termination and she is seeking for monetary damages as well as a jury trial.
Ty Hyderally and other employment law attorneys will be waiting to see the outcome of this case which involves two alleged infractions of employment law. It is important that employees retain their right to report a hostile work environment, sexual harassment or other abuse in the workplace without fearing retaliation from those who are responsible for protecting these rights and maintaining a safe workplace for all workers. If the allegations are accurate the company will likely be penalized and pay damages to Ms. Thomas. Employers should be held responsible for the actions of employees and take immediate action to investigate in the event abuse is reported.
According to Equal Employment Opportunity Commission (EEOC) guidelines, a qualified person applying for a job cannot be denied employment based solely on their age. Tayeb Hyderally is an expert in employment law NJ who diligently represents cases where employment laws have been violated. He is also dedicated to help employees and employers become aware of various applicable employment laws. Ty Hyderally speaks to different types of groups to help inform individuals of their rights and responsibilities regarding employment laws. Texas Roadhouse is currently involved in a case where there has allegedly been repeated age discrimination in their hiring policies.
Because of increased claims citing age discrimination the EEOC filed a suit against Texas Roadhouse. The restaurant chain is accused of discriminating against job applicants because of their age. The EEOC stated in a press release that there had been a significant increase in complaints since 2007. Upon investigating the allegations, the EEOC pursued the lawsuit.
According to the suit filed the company officials told hiring personnel that younger people were preferred for open positions. Older applicants were told that they seemed old to be applying for a job in the restaurant; and many were told that the hiring officials were looking for people “on the younger side.”
The Age Discrimination in Employment Act (ADEA) is a federal statute which protects employees who are 40 years old or above from discriminatory practices based solely on their age. According to the ADEA guidelines, it is prohibited to favor a person who is younger over an older person (40 years old or older) based only on their age. These regulations include hiring, promotions, job duties, assignments, layoff, benefits and firing. It also prohibits any type of harassment based on the age of the employee, specifically for individuals who are 40 years of age or older. This is built to include offensive statements or comments about the individual’s age. However, this type of conduct has to be a part of the work place becoming a “hostile work environment” before the law applies. It can be applied to any supervisor or a co-worker. If a client or customer makes derogatory remarks the company can be held liable, if the employer does not at least attempt to make reasonable effort to prevent the harassment. The law also states that policies cannot be put in place that have a negative impact on workers aged 40 or above.
Many applicants believe they have been denied employment at Texas Roadhouse based solely on their age. These instances are also cited at various locations of the restaurant chain, and are not isolated to only a single location. The EEOC tried to reach a pre-litigation settlement according to its conciliation process. The intent is to obtain monetary amounts for those applicants who were not hired based on their age. The second part of the EEOC’s case is to help the restaurant change its hiring policies and training so that age discrimination does not occur in future hiring practices.
Age Discrimination in Employment Act of 1967 (ADEA)
The Age Discrimination in Employment Act of 1967 (ADEA) requires that businesses make no distinction among employee’s pay based on their ages. They cannot be paid less due to their age as long as they are performing their jobs effectively; they must be paid the same as younger counterparts. Ty Hyderally is an expert in employment law who works diligently to inform employees and employers of their rights and responsibilities concerning employment law NJ, including ADEA guidelines. Individuals can file against corporations, as can groups. However, just because the complaint arises from an affected group, is no guarantee that the courts will act on their behalf; or agree that a disparity has taken place. This is the case with Smith v. City of Jackson, Miss.
A group of police department employees which included Azel Smith sued the city of Jackson, Mississippi and their police department. The city’s police department in an attempt to make their pay scale competitive with surrounding departments gave officers raises. Officers who worked for the department for less than 5 years were given larger pay raises than employees who had over 5 years of tenure. Since many of those with more than 5 years of tenure were over the age of 40, the group sued the city alleging that the salary changes was in violation of the Age Discrimination in Employment Act.
The Fifth Circuit dismissed the claim because they said it was not a violation of ADEA. Upon appeal the Supreme Court upheld this dismissal. One reason for this dismissal was the particular wording of the language used in the ADEA. Another cause for the dismissal of their claim was the history of legislative rulings and statutes. The court recognized that these types of disparate impact claims can indeed be classified under the ADEA, however, the group (Smith) failed to be able to prove their claim.
The group of officers could not isolate a specific practice carried out by the department that would prove the disparities according to statistical analysis. The officers stated that the pay plan that was put in place was not as generous to older officers and therefore had an impact on the age group. The group failed to prove that the raises were made on solely on the basis of age. The city was trying to ensure that the police department offered salaries that were competitive with other communities in the area. Since the pay scale was not based at all on an employee’s age there was no act of discrimination to be found.
To prove a case of age discrimination it is very important to be able to statistically show that the disparities occurred solely based on age. The group of officers could not do this in this case and the dismissal was upheld.
This post was written by: Francine Foner, Esq.
The New Jersey Law Against Discrimination (“LAD”), is intended to prohibit discrimination on the basis of several protected categories, including age. owever, the LAD contains an exception which permits employers to discriminate against individuals over 70. The “over 70 exception” to the LAD provides that, “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age….”
But should this exception permit employers to refuse to renew the contracts of employees based upon their being over 70? Not according to the New Jersey Supreme Court’s recent holding in Nini v. Mercer County Community College (2010).
Rose Nini worked for Mercer Community College continuously for twenty-six years under a series of contracts. Her last contract was not renewed and she sued the school for age discrimination. The school countered that since Nini was over 70 she was not covered by the LAD because of its “over 70 exception.” Nini lost in the lower courts, but prevailed in the New Jersey Supreme Court. The Nini majority found that the “over 70 exception” applies to initial hiring decisions, but not to contract renewals. The Nini Court reasoned that a contract renewal amounts to the same thing as a termination, and termination based upon age is prohibited by the LAD’s broad remedial purpose and strong public policy of eradicating discrimination in the workplace.
The Supreme Court also observed that it would create a loophole in the LAD’s protections by permitting employers who want to terminate their aging employees to simply put them under contract and then not renew the contract. The Nini Court further noted that it would also have the absurd result of giving greater protections to “at will” employees (i.e., those without contracts) than to contract employees.
One caveat to the Supreme Court’s holding might be the extent of the employee’s pre-existing relationship with the employer. Nini had a long-term and successful pre-existing relationship with the college, which was a significant factor in the Supreme Court’s finding in her favor. What about the over-70 employee whose relationship is only a year or less? The Nini Court failed to address whether or not the pre-existing relationship must be of any specific length or scope. Thus, chances are that employers will try to distinguish cases in which the employee has a short pre-existing relationship from the type of lengthy career that Nini had at the college. Thus, it remains to be seen whether this will be a hard and fast rule, or may be modified down the road.
Discrimination in the workplace is not a new issue. It has been an issue for many years. Ty Hyderally has many years of successful litigation in cases dealing with employment law. Ty Hyderally is considered an expert on employment law in New York and the surrounding areas. Cases like Griggs v Duke Power Co. help to set the precedent in cases that are still being heard by the courts today.
Griggs v. Duke Power Company was one of the fist causes of its type. It was presented before the US Supreme Court in December of 1970 and was decided in March of the next year. The major concern was employment discrimination as well as the disparate impact theory. The court found that the company had requirements in place for applicants that were not pertinent to be able to properly perform the job as required. Thus, it was indirectly discriminating against African American employees, although that was not the company’s original intention.
The Duke Power’s Dan River plant’s policy in 1950 was that African Americans could only work in its labor department. These were the lowest paying jobs that the company had available. Later, in 1955, the company also stipulated that higher paying jobs must be filled with personnel who had obtained a high school diploma.
When the Civil Rights Act was passed Duke Power Plant removed racial restrictions concerning employment but the high school diploma policy remained. They also added that an IQ test was required for employment. Because African American applicants were not likely to have obtained a high school diploma, and scored lower average scores on IQ tests, they were selected for employment for these positions fewer times than white applicants.
The Supreme Court’s ruling was that businesses must show that such requirements must be directly, or at least reasonably, related to the job for which testing is required. Title VII of the Civil Rights Act prohibits the use of testing as a decisive factor for employment, if it is not a “reasonable measure of job performance.” This is regarded as the rule whether or not discrimination towards any group was intentional or not. Duke Power’s procedure for transferring employees was found to be a violation of the Civil Rights Act, since the requirements of a high school diploma and aptitude tests were not directly related to the performance levels required by the position. Griggs v Duke Power Company held that an employer has the burden of proving the necessity of the testing before being able to require it as a basis of employment.
I am Ty Hyderally; I am an employment law attorney in New Jersey
For years there remained a discrepancy over the amount of pay for men versus women. When performing the same job responsibilities and skill women were paid far less. In February 1963 Secretary of Labor Willard Wirtz sent submitted a letter and a bill to the Speaker of the House of Representatives recommending legislation for “equal pay.” Initially, Congress rejected the bill but after some rewording the bill passed. The wording was changed from “equal pay to comparable work” to “equal pay for equal work.” The new wording indicates that there should be no pay discrepancy for those who perform identical job skills, regardless of whether they are male or female.
The Equal Pay Act of 1963 makes it illegal for employers to pay workers varying rates for the same job performance based on the employee’s gender. The goal of this legislation is to abolish pay discrepancies between men and women for the same job positions, responsibilities and skills.
These discrepancies were deemed to be difficult on the economy. They caused many labor disputes as well was contributed to unequal methods of competition. Wages were depressed and it caused a lowering of the overall standard of living.
The Equal Pay Act of 1963 (EPA) (P.L. No. 88-38, 77 Stat. 56, 59) protects workers from discrimination on the basis of their gender. Employers are prohibited from paying varied wages between the genders for the same job. To the layman, it means that women and men who do exactly the same job and skill levels cannot be paid at different rates of pay. They must be paid based solely on their capabilities to do the specific job as well as carry out all the required responsibilities. An individual cannot be compensated any less in wages or other amenities simply because they are female or male; rather it states equal pay for equal work.
There has been much progress in trying to alleviate discrimination in the workplace. Discrimination law has been through many changes over the past 40 years. In 1964 the Civil Rights Act was enacted to protect workers from discrimination based on race, religion, national origin or gender. In 1967 Congress then adapted the law to also prohibit discrimination based on age. And in 1990, Congress once again made changes to discrimination law which also makes it illegal to discriminate against an individual based on a disability. Many states have followed suit and also prohibited discrimination based on sexual orientation.
Many of the worst discriminatory practices were alleviated by the 1964 Civil Rights Act. Resistance to enforcement of the laws is what makes it so difficult to eliminate in the workplace. Political resistance to any form of remedial action has made this a very difficult task to undertake and to succeed. Businesses have become much craftier in their employment schemes which make it even more difficult to detect and even harder to correct. Thus the workplace continues to practice unjust and illegal discriminatory practices. Despite the government’s best attempts to eradicate discrimination in the workplace it sadly still exists.
Only about 2% of cases heard on discrimination are won by the plaintiff, the worker who feels they were discriminated against. However, unfair treatment must not be confused with illegal discrimination. Treating an individual differently than others is in violation of discrimination law when the ill treatment is based on the existence of a characteristic which is protected. Actions by a company based on job performance or even something as subjective as personality do not necessarily indicate discriminatory practices.
When it is proven that a company has been engaged in such illegal actions they can be made to pay up to $300,000 in punitive damages. The person who was dealt with unfairly based on one of the protected groups can receive back pay or reinstatement of their previous position or their job if they were fired. They can be compensated for any pain and suffering that was due to the illegal practices of the business.
The Federal law carries a statute of limitations for most forms of discrimination in the workplace. The complaint must be filed within 180 days of the alleged occurrence. The exception occurs for sexual discrimination. Claims for these cases must be filed within 90 days of receiving the “right to sue” letter from the EEO certifying the individual’s right to file a claim for sexual discrimination.
The Federal law that protects individuals who are 40 years old or older is called the Age Discrimination in Employment Act, or ADEA. The intent of the age discrimination law is to protect employers from making decisions about an employee based solely on age. It is illegal for a business to refuse to hire a person just because they are aged 40 or above. Also, it is an illegal practice to fire an older person and then hire a younger person to fill the same position.
The Older Workers Benefit Protection act of 1990 added an amendment to the ADEA that prohibits business owners from denying benefits to its older employees. These two laws are in place specifically to protect older workers from being discriminated against based on age.
The laws dealing with age discrimination in the workplace only apply to businesses who hire more than 20 employees. Independent contractors are not bound by these laws. However, to protect older workers, some states may have other types of discrimination laws in place. Or there may be some added protection against age discrimination under other state employment guidelines.
Discriminatory practices that are prohibited by the law include hiring and firing as well as any types of transfers, promotions or layoffs. A person cannot receive more or less compensation based on age, nor can a business alter fringe benefits because of an employee’s age. But they also make it illegal to harass someone in regards to age.
Businesses are offered some exemptions from these laws. For instance, a company may offer early retirement to older workers as long as it will not affect their benefits and as long as it is purely voluntary. An early retirement cannot be forced and it cannot reduce the worker’s benefits as their age increases.
A few jobs in which an age restriction clause is allowed are exempt. These are typically jobs which deal with public safety such as fire or police workers. Some companies may carry this restriction for top level executives. And a company is allowed to use a seniority system. However, if utilizing a seniority system it must be based on years of employment not based solely on age.
Businesses are encouraged to find solutions for the problems that arise from the impacts that age can have on employment. Younger and older workers are assured that they each have equal access to benefits and pay. Health care and pension cannot be manipulated to the advantage of the business just because a worker is aging. There must be fair treatment across the board.