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Carl E. Person
225 E. 36th St Suite 3A
New York NY 10016-3664
Tel. No. - 212-307-4444
Fax No. - 212-307-0247
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FIRED, LAID OFF or DEMOTED? -- Your Legal Rights and Options
by Attorney Carl E. Person
(June 1994 Revision)
Office and Telephone Consultations Are Free
Carl E. Person, Attorney at Law
325 W. 45th Street - Suite 201
New York, NY 10036-3803
Tel: (212) 307-4444
Fax: (212) 307-0247
- Disclaimer - READ THIS PART FIRST
- What to Do If You Are Fired (or Threatened with Being Fired)
- How Much Could a Case Be Worth?
- Governing Law - the Meaning of and Determining
- New York law - Terminable at Will
- Statutes of Limitations - MOST CRITICAL FOR YOU TO READ
- Don't Sign Anything or Deposit Check without Consulting Attorney
- Gathering All Needed Documents before Departure
- Conducting Your Own Exit Interview (to Gather Evidence)
- Whistle Blowing Laws in a Nutshell
- NYC Commission on Human Rights & NYC Human Rights Law
- NYS Division of Human Rights & NYS Human Rights Law
- Federal Equal Employment Opportunities Commission (EEOC) & Title VII, ADA
- Federal Civil Rights Act, 42 U.S.C. 1981 - Direct Action
- Rehabilitation Act of 1973 - Handicapped
- Costs of Litigation
- Finding an Experienced Lawyer
- Which is Best for You: Governmental or Private Assistance - or Both?
Table of Contents
1. Disclaimer - Read This Part First
Employment discrimination law is tricky, changing, difficult to pin down and impossible to describe accurately in a few pages (such as this booklet). Accordingly, you are being warned with all seriousness that what follows in this booklet may not cover your own situation or be accurate for that matter. So, don't rely on this effort to summarize employment-discrimination law for New York employees. You must obtain answers tailored to your own situation from an experienced lawyer. This booklet will help you to raise appropriate questions for which your lawyer can determine the correct answers.
The main thing you should do, accordingly, is to communicate with your lawyer as fast as you know how if you believe you have an employment-discrimination claim. This will minimize the possibilities that you will lose your case by a short statute of limitations or notice requirement. So, with this warning in mind, please keep reading.
2. What to Do If You Are Fired (or Threatened with Being Fired)
Join the club! You and millions of other faithful employees have been fired (or terminated, or downsized, or released, or demoted, or laid off or shunted off to something less remunerative or less desirable), all of which I consider a "termination" or "firing".
The causes for these millions of terminations are many, and some of them violate the rights of the affected employees, and some of them do not. There is a process of identifying whether the rights of a terminated employee have been violated and this booklet is an effort to guide you, the terminated employee, through the laws and loopholes which may relate to your termination problem.
A word of precaution is in order: This booklet does not purport to give any "legal advice", and is solely intended for informational purposes, to give a terminated employee a quick look at the areas of law which might relate to his/her termination problem. You should consult with a lawyer experienced in employment-termination matters who, after obtaining the relevant information from you, can give you the legal advice you need.
In a nutshell, if you have been terminated (or are being threatened with termination), you should seek legal advice as fast as you can. The reason for speed is that there are various statutes of limitations and/or notice requirements which could eliminate an otherwise valid claim if not complied with on a timely basis. Of equal importance is that you should not sign anything (such as a release, receipt, termination agreement or even a payroll or termination check) without first consulting with a lawyer experienced in employment-termination cases.
So, the first four things you should do upon termination (or even threat of termination) are:
1. Don't sign anything with or for your employer (unless you have prior legal advice);
2. Avoid meetings with your employer where you might make admissions against your interests in an effort to preserve your threatened job (unless you have prior legal advice);
3. Act as fast as you can (to prevent barring of your cases through various statutes of limitations and notice of claim requirements) to take whatever steps you are going to take; and
4. Consult with an experienced lawyer before taking the needed steps.
3. How Much Could a Case Be Worth?
After an employee goes through the shock of being fired, with consequent emotional trauma, guilty and worthlessness feelings, and the desire to obtain retribution including all moneys to which he/she is entitled, the employee would like to have an idea of how much money he/she could collect by bringing a lawsuit against the former employer and possibly others.
The answer ranges from nothing to millions of dollars, which answer is of little help, I realize.
Whether a terminated employee has a right to recover even a single penny depends on various points of fact and law which I will try to cover in this booklet.
Without saying when a terminated person is entitled to any monetary or other "recovery" in a lawsuit or administrative proceeding, I can list various elements of damages which should be considered when trying to recover damages and other relief for an improper employment termination. These elements (in no particular order) include:
A. Reinstatement with the same, comparable or different job
B. Back pay;
C. Interest on the back pay (usually at 9% simple interest, the statutory rate of interest on judgments);
D. Loss of future income which would have been earned if the employment relationship had not been terminated (subject to a strict requirement that the employee make a bona fide effort to reduce his/her damages by looking for and accepting, if offered, comparable employment); often the plaintiff will ask for a period of 10 to 20 years of future income, whereas (obviously) the defendant will try to limit the years to somewhere between 0 and 3 or so; both sides will probably try to use tables of life expectancy and employment expectancies in support of their respect positions;
E. Loss of future income which might have been obtained through customary raises and promotions, something more difficult to prove than the preceding element of damages;
F. Reasonable attorneys' fees;
G. Certain costs (but certainly not all costs) of obtaining the award or judgment;
H. Punitive damages (also known as "smart money", to make the defendant's eyes "smart" or produce tears), which could be the largest element of monetary recovery, but which is the least likely type of recovery obtainable. Punitive damages under NYS law are seldom awarded because of the difficulty in proving that the defendant's conduct was with "near criminal indifference to his civil obligations". Walker v. Sheldon, 10 N.Y.2d 401 (1961) and New York cases thereafter. When punitive damages are to be awarded, however, the jury is entitled to know the net worth of the defendant, and to consider such net worth when assessing the punitive-damages award. Punitive damages are not assessable against a city or governmental agency or subdivision as a named defendant, but can be assessed against individual employees who are sued in their individual capacity, with the governmental employer often making the payment in spite of the governmental immunity.
I. Loss of medical and dental benefits.
J. Loss of stock options.
K. Loss of retirement or pension plan contributions.
L. Loss of expenses incurred by employee in reliance upon continuation of the employment (such as expenses of selling a house at a loss and moving to another city to obtain the job from which the employee was subsequently fired).
M. Medical expenses incurred as a result of the firing (such as for psychological or psychiatric counseling).
These items of damages can be considerable. Assume that a middle manager, age 40, earning $100,000 per year for a major corporation was
improperly terminated. He/she would claim 25 years at $100,000 per year (minimum), or $100,000 in year 1 and (judging from rates of inflation,
which would have to be proven at trial), $400,000 in year 25, or about $250,000 per year on the average, for a total of $6,250,000 in future salary loss,
plus attorneys' fees, and costs, less an interest factor representing the present value of the right to receive such future income. Income taxes would not
ordinarily be deducted from the $100,000 or $250,000 per year, because the employee would still have to pay taxes on the settlement in many
instances. Also, the defendant would be arguing that in 25 years the plaintiff should be able to get a job and that 25 years of loss of employment
would be an outrageous result to assess against the defendant, and that perhaps 2 years would be an appropriate time in which the plaintiff could be
expected to find a comparable job.
You can see how the argument goes back and forth. But for many terminated persons there could be substantial monetary recovery at stake, assuming that the law in fact provides a remedy for the person's termination. In many instances (especially in New York State) the law does not, so read carefully what I have prepared in the booklet, to give you a handle on what matters you will want to discuss with an attorney.
4. Governing Law - the Meaning of and Determining
When any case goes into the courts, or into arbitration, or before a governmental agency, one of the first things which the tribunal (and the parties and their attorneys) would like to know is "What law governs this case?" In other words, when you go into the courts of, say, New Jersey, to sue someone, the laws of New Jersey do not necessarily govern the relationship between the plaintiff and the person the plaintiff is suing.
Assuming that the plaintiff lived and worked in New York, and the employer was a Texas airline. The contract of employment, if any, might have a provision such as "This contract is to be construed under and governed by the laws of the State of Ohio." In such case, the New York courts or the courts of any other state hearing the case would be required to apply the laws of the State of Ohio to determine the meaning of the employment contract, including how the relevant paragraphs are to be "construed" (i.e., interpreted) by the courts.
The reason that a Texas airline might put such a provision in its employment contract with a New York pilot may never be known. The attorneys for the Texas airline who drafted the contract might have been an Ohio law firm who put the provision in such contract solely because they were familiar with Ohio law. But for whatever reason such provision (if any) is put in an employment or other contract, the courts will usually uphold such provision, in which case the contract would be construed under Ohio law by the New York courts who have the contract before them in a specific case.
It is important for you to gather together all documents which relate to your employment, including any company or employee or personnel manuals or booklets, any company-prepared descriptions of stock-option, bonus, medical, dental, pension, retirement, investment, charitable contribution, vacation, or other plans for the employees, and for all years of your employment if possible, to enable your lawyer to see what the contract was (if possible) when you first started your employment. These papers might well say what law is to govern.
5. New York Law - Terminable at Will
New York State has the toughest law from an employee's standpoint. In defense of New York, which generally is the worst state for anyone trying to do business, New York has adopted the "at will" rule relating to all employment which does not have any specific agreement for duration of employment.
Some states say that when an employee is hired, he/she cannot be arbitrarily dismissed, and if an employee is arbitrarily dismissed, the employer is breaching its duty to the employee and the employee may recover damages for the termination because of such breach of duty.
This is not so in New York State. The highest Court in New York has repeatedly held that New York is an "at will" state, which means that any employer may fire any employee without liability if the parties had not agreed to the period of employment and, most importantly, if none of various exceptions to such rule apply.
This booklet discusses the exceptions to the "at will" rule, without which (unless there had been a specified period of employment) there would be no claim for wrongful employment termination.
Thus, to make the at will rule perfectly clear, the employer in New York (unless there was an agreement for so many years or months of the employment or unless one of the exceptions applies) has a right to terminate an employee because the employer:
i. doesn't like the person's attitude;
ii. doesn't like the person's performance;
iii. believes the employee doesn't fit in;
iv. believes the employee is overeducated, undereducated, or even perfectly educated for the job at hand;
v. doesn't like green-eyed persons;
vi. doesn't like talkative or non-talkative employees;
vii. doesn't like moonlighters or doesn't like persons complaining about being underpaid.
I trust that you get my point. When an employment relationship in New York is at will, the employer can fire the employee for any (lawful) reason, and doesn't have to state why, for that matter, or can state, for example, "I just don't know why I'm firing you. I really have no cause; I just though I wanted to fire you and have no reason why."
Employment termination of at will employment relationships require no just cause or bona fide reason.
However, many "at will" employees are terminated for reasons which are prohibited by one or more of the exceptions to the at will rule, and it is necessary to understand these exceptions to determine if a terminated employee in an at will employment relationship has a claim for wrongful termination of employment. Each of these exceptions is referred to below.
6. Statutes of Limitations - MOST CRITICAL FOR YOU TO READ
The statute of limitations is a legislative enactment or statute which places an outside limit, after the occurrence of an act creating a cause of action, in which the injured party must commence his/her action. Failure to commence an action within the limiting period means that the action, if brought thereafter, can and will be dismissed by the court upon request of the defendant. Thus, if the limiting period for an action for breach of contract is six years, a person who waits for 6 years and one day after a breach occurs to bring suit will find that he/she has brought the suit too late. The defendant merely makes a motion to dismiss the action based on the applicable (6-year) statute of limitations, and the court will grant the motion and dismiss the action.
When an employee is termination from his/her employment, there are various statutes of limitations to consider, assuming that the person does in fact have a cause of action (or meritorious claim) for wrongful termination. If there is no meritorious claim, there is no need to worry about statutes of limitations.
In the case of claims against a government or governmental agency or instrumentality, there may well be a requirement of serving a notice of claim within a specified period. For claims brought against New York City or any of its governmental agencies, there is a requirement that notice of claim be filed with the Office of the Comptroller within 90 days after the claim arises. Even if this deadline is not met, there is a provision in the New York law which permits an application to be made to the courts for an order extending the period of time in which to make the required notice, which request can be made after the original 90-day period has expired. Thus, even if the period to make your notice has expired, you can still obtain an extended period in which to give the notice. Such extension does not have to be granted, however, but will ordinarily be granted where New York City has already been informed about the claim in some fashion, such as the existence of an arbitration proceeding prior to the end of the 90-day period.
In addition to the foregoing notice requirements for claims made against New York City and its agencies, you have to bring any action within the limiting period set forth in the applicable statute of limitations for each claim you make.
Thus, if you claim that your termination was a breach of contract, you would have to commence your lawsuit (under New York law) within six years of the breach. If your claim is also based on violation of the New York State Human Rights Law, you would have to commence your action within 3 years from the date on which the act creating liability occurred.
If your claim is for unlawful discrimination under federal law, you would have to commence your action within 3 years (or in some instances 90 days) from the date the act creating liability occurred. And if your claim is for unlawful discrimination under New York City's Human Rights Law, you would have to file your action within 1 year from the date the act creating liability occurred. REMEMBER, you must speak to your lawyer about the statute of limitations as applied to your own claim. This summary may not provide you with the correct answer.
If your action is governed under the law of a state other than New York, you would have to determine what state and what number of years applied to the type of claim(s) you were going to make.
The statute of limitations has a nasty habit of sneaking up on litigants and their attorneys, and should be something which is dealt with as a priority matter at the outset, and calendared by client and attorney to ensure that the limiting dates do not slip by without the filing of the notice, if needed, and complaint.
7. Don't Sign Anything or Deposit Check without Consulting Attorney
When an employer terminates an employee, the employer hopes that it is able to do so without any repercussions. Often the employer will capitalize on the embarrassment of the situation and ask the employee to sign on the dotted line to receive the employee's last paycheck, sometimes including an additional amount of several weeks' pay to induce the terminated employee to sign the offered papers and deposit the check.
A WORD OF WARNING! Do not sign or agree to anything and do not deposit the check(s) without first consulting with an attorney. The reason is that what you are offered to sign will probably be a general release which releases the employer from any and all liability to you. This release probably cannot be avoided in a court of law, unless it was procured by use of fraud, which is often difficult to prove.
Also, the check or checks offered to you as part of the termination package will probably have some type of notation on them that by depositing the check you are releasing the employer from all past liability. You cannot cross out such language and then deposit the check, because you will be held to have agreed to such offensive language by your act of accepting and depositing the check.
Accordingly, the best thing you can do for yourself is see an attorney and show him/her the check, the offered papers for you to sign, and tell him/her your story about why you think you were terminated from your employment.
Let your attorney advise you on what you should do. It is possible that you have no claim at all and should take the check and run. But it is also probable that you have a claim for a large sum of money which would be lost if you signed the release and accepted the small check.
Accordingly, do nothing until you have seen an attorney.
Don't even quit your job until you have seen an attorney because by quitting your job you may be destroying a cause of action for wrongful termination which might be just around the corner, if you don't quit when pressured to do so.
8. Gathering All Needed Documents before Departure
Also, before leaving your job, it would be appropriate for you to obtain copies of manual, agreements and other documents you may need to prove your case. You should consult with your attorney about the proper way of doing this, since some of the documents you may need may have to be obtained through request of others working for your employer. Your attorney can talk with you about the best way of going about this tricky business.
Also, there is the possibility that you may want this last chance to have your employer make statements to you about your employment which will (or could) be binding on them once you bring suit. You should talk about this with your attorney and draw up a plan for obtaining such evidence before you are terminated or before you leave your employment.
Be aware that the employer is (or should be) conscious of the activities you may be making to obtain evidence for use against the employer and may place obstructions in your path, such as evicting you from the premises as soon as you are terminated. Thus, it may be better to obtain the evidence you need before your employment problem reaches the point where your termination is disclosed to you.
9. Conducting Your Own Exit Interview (to Gather Evidence)
Thus, as part of your efforts to gather evidence before you leave, you may wish to conduct your own "exit interview" with persons in the organization who appear to have been instrumental in your termination or anticipated termination.
For example, you might wish to arrange for a discussion of things you can do to improve your performance, and the employer may make statements that your work is entirely satisfactory. Better yet, someone in a position of authority may make a statement that you are getting old, and someone younger is needed to give life to the organization, or something like that. It all depends on the facts, but it would be good to get something like that before you leave, when some of the persons in authority may not be aware that you are going to be terminated or may not be alerted to the right and wrong things to say to you.
10. Whistle Blowing Laws in a Nutshell
There are some statutes which specifically protect an employee who blows the whistle on his employer. One such federal statute protects surface transportation employees (such as truckers) who report on truck maintenance violations, for example. Another whistle-blower protection is discussed below, in the statutes which prohibit reprisals against persons attempting to enforce the rights of persons who are victims of employment discrimination.
But in most instances of "whistle blowing" (with exceptions noted below), there may be little or no protection under New York law because of the "at will" basis upon which employees are hired, when there is no specific provision for duration of the employment relationship.
Before giving up, however, consult a lawyer on the issue of whistle blowing. An interesting federal statute, the False Claims Act, compensates a whistle blower with a fee ranging from 10% to 25% of the moneys recovered by the federal government in an action commenced by the whistle blower against the company or person defrauding the U.S. government. 31 U.S.C. Section 3730(d). Often, the plaintiff (acting for the United States) was an employee of the defendant.
Also, there is 41 U.S.C. Sections 53, et seq., the Anti-Kickback Act, which prohibits contractors and subcontractors from accepting or charging kickbacks. New York's Whistle Blower statute, Section 740 of the New York Labor Law, permits an employee subjected to adverse personnel action for reporting hazards to public health or safety which violate laws or regulations. The remedy includes reinstatement, back pay and other relief.
The statute of limitations for claims under the False Claims Act is 6 years from the commission of the act or up to 4 additional years if material facts weren't known to the appropriate official of the U.S. government. 31 U.S.C. Section 3731(b). United States ex rel. and Duvall v. Scott Aviation, 733 F.Supp. 159 (W.D.N.Y. 1990).
11. NYC Commission on Human Rights & NYC Human Rights Law
New York City, by the New York City Human Rights Law, has the most liberal set of rules prohibiting discrimination in employment. In NYC, it is illegal to discriminate against a person on the basis of actual or perceived race, color, national origin, religion, gender, sexual orientation, disability (including HIV infection and related conditions), marital status, age or alienage or citizenship status. Also, it is illegal to retaliate against any person for having complained about alleged discrimination or opposed discriminatory practices in some other way.
If you are a victim of employment discrimination, under the NYC Human Rights Law you may be entitled to (1) reinstatement to your job; (2) services denied; (3) back pay; (4) compensatory damages for your emotional distress or other intangible costs; (5) punitive damages.
The NYC Commission on Human Rights has the power to order the employer to hire, reinstate or upgrade you in your job, or to pay you back pay, out-of-pocket expenses actually incurred by you and a monetary award for emotional distress, pain and suffering.
The discriminatory act(s) must have occurred in New York City, and there is a statute of limitations of one year from the date of the act(s) in which to file your complaint with the NYC Commission on Human Rights. Also, you should remember, that an employer must have four or more employees to be covered by the NYC Human Rights Law.
The New York City Commission on Human Rights is located at 40 Rector Street - 9th Floor, New York, New York 10006, telephone number 212-306-7500. There are also 7 field offices: in The Bronx (718-798-3542 and 718-430-0140), Brooklyn (718-230-3600, 718-853-8400 and 718-722-3130) and Queens (718-886-6162 and 718-657-9333).
Whether you should file a complaint with the NYC Commission on Human Rights and/or file an action in court is something which you should discuss with your attorney.
A private cause of action is created under the NYC Human Rights Act, Administrative Code Section 8-502, for compensatory and punitive damages. Bracker v. Cohen, 1994 N.Y. App. Div. LEXIS 5216 (1st Dept. 1994) (a case involving sexual discrimination).
12. NYS Division of Human Rights & NYS Human Rights Law
The NYS Human Rights Law, Executive Law Section 296, et seq., creates a private right of action for victims of discrimination. Victims may sue governmental as well as private employers. Punitive damages are not recoverable under the state Human Rights Act. Bracker v. Cohen, 1994 N.Y. App. Div. LEXIS 5216 (1st Dept. 1994) (a case involving sexual discrimination which upheld punitive damages under the NYC Human Rights Law). Section 291 of the statute provides that "The opportunity to obtain employment without discrimination because of age, race, creed, color, national origin, sex (including sexual harassment) or marital status is hereby recognized as and declared to be a civil right." Section 196(a) prohibits discrimination "in compensation or in terms, conditions or privileges of employment".
The New York State Division of Human Rights is located in NYC at 55 W. 125th Street - 13th Floor, New York, New York 10027, telephone number 212-961-8400.
Whether you should file a complaint with the NYS Division of Human Rights and/or file an action in court is something which you should discuss with your attorney. Section 297 provides in part:
"Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, ...,provided that, where the division has dismissed such complaint on the grounds of administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed.A private cause of action is created under the New York Human Rights Law, Sections 290, et seq. of the New York Executive Law for compensatory (but not punitive) damages. Bracker v. Cohen, 1994 N.Y. App. Div. LEXIS 5216 (1st Dept. 1994) (a case involving sexual discrimination).
"A complaint filed by the Equal Employment Opportunity Commission to comply with the requirements of 42 USC 2000e-5(c) shall not constitute the filing of a complaint within the meaning of this subdivision. No person who has initiated any action in a court of competent jurisdiction or who has an action pending before any administrative agency under any other law of the state based upon an act which would be an unlawful discriminatory practice under this article, may file a complaint with respect to the same grievance under this section...."
The statute of limitations for commencement of an action under the NYS Human Rights Law is 3 years (if brought in the regular courts and not in the New York Court of Claims, which may have a substantially shorter statute of limitations than when a governmental agency is sued in the other courts) or within 1 year from the date at which the person learns about the acts creating liability. See Sections 297 and 296 of the Executive Law and CPLR 217. Koerner v. State of New York, 62 N.Y.S.2d 442, 467 N.E.2d 232, 478 N.Y.S.2d 584 (1984).
13. Federal Equal Employment Opportunities Commission & Title VII, ADA
Federal laws exist which prohibit various types of discrimination in employment. A brief review of these federal laws follows:
- A. Employment Discrimination - National Origin, Race, Color, Religion, Sex
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of national origin, race, color, religion and sex.
- B. Employment Discrimination - National Origin Harassment
Harassment on the basis of national origin is also a violation of Title VII of the Civil Rights Act of 1964, which requires that the harassing activities create an intimidating, hostile or offensive working environment, unreasonably interfere with work performance or negatively affect an individual's employment opportunities.
- C. Employment Discrimination - Sexual Harassment
Sexual harassment during employment is a form of sex discrimination which violates Title VII of the Civil Rights Act of 1964. Victims are entitled to be placed in the position they would have obtained had there been no discrimination. Other remedies include hiring, promotion, reinstatement, back pay and other remuneration. A victim may be entitled to damages to compensate him/her for future pecuniary losses, mental anguish and inconvenience, and attorney's fees.
- D. Employment Discrimination - Pregnancy Discrimination
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions. Employers must treat employees with pregnancy related disabilities the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.
- E. Employment Discrimination - Religious
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment.
Remedies include placing the person in a position he/she would have had in absence of the discrimination; hiring, promotion, reinstatement, back pay or other remuneration, or reasonable accommodation, including reassignment; damages to compensate for future pecuniary losses, mental anguish and inconvenience; punitive damages (if employer acted with malice or reckless indifference); and attorney's fees.
- F. Employment Discrimination - Age (Age Discrimination in Employment Act - ADEA)
United States statute 29 U.S.C. Section 621, et seq., known as the Age Discrimination in Employment Act ("ADEA"), prohibits discrimination on the basis of against persons 40 years of age or older. Any aggrieved person may bring an action in a court of competent jurisdiction, but such action shall terminate upon the commencement of an action by the EEOC to enforce such person's rights under this act. Furthermore, no civil action may be brought in the first place by the aggrieved employee unless he/she first files a charge with the EEOC within 180 days after the alleged unlawful practice occurred or 300 days where a state or local agency has similar jurisdiction under state law. The individual's action cannot be filed until after 60 days after the charge has been filed (on a timely basis) with the EEOC. 29 U.S.C. Section 626(d). The statute preserved the right to trial by jury even if state law (when joining a request for equitable relief) would deprive the aggrieved person of a jury trial. 29 U.S.C. Section 626(c)(2). The statute of limitations is 2 years (for non-willful violations) and 3 years (for willful violations). See Sections 255, 259 and 626(e)(1), with possible extension for up to one year based on EEOC conciliation activities.
- G. Disability Employment Discrimination (ADA)
Title I of the Americans with Disabilities Act of 1990 ("ADA", effective July 26, 1992) prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment.
A disabled person must be provided with reasonable accommodations to enable the person to do his job, which could include: (i) making existing facilities used by employees readily accessible to and usable by persons with disabilities; (ii) job restructuring, modifying work schedules, reassignment to a vacant position; and (iii) acquiring or modifying equipment or devices, adjusting modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
Employers may not ask job applicants about the existence, nature or severity of a disability. Applicants may be asked about their ability to perform specific job functions.
On July 26, 1994, employers with 15 or more employees will be covered. Prior to that date, employers with 25 or more employees were covered.
Remedies are to place the person in a position he/she would have had in absence of the discrimination; hiring, promotion, reinstatement, back pay or other remuneration, or reasonable accommodation including reassignment; damages to compensate for future pecuniary losses, mental anguish and inconvenience; punitive damages (if an employer acted with malice or reckless indifference); and attorney's fees.
Persons seeking relief from disability employment discrimination must file a charge of discrimination with the EEOC (in New York City, located at 7 World Trade Center, 18th Floor, New York, New York) within 180 days of the discrimination, unless there is a state or local law that also provides relief for the discrimination on the basis of disability. In most cases where there is such a law, the complainant has 300 days to file a charge with the EEOC. A word of caution: it would be most prudent to consider the 180 day period as the limiting period for every claim, just to be safe.
A prerequisite to the maintenance of a Title VII proceeding is a timely filing of a complaint with the EEOC. A complaint must be filed with the EEOC within 300 days after the acts have occurred (which is longer than other states because of the existence of NY state and local agencies to deal with the same discrimination). 42 U.S.C. Section 2000e-5(e). Butts v. City of New York Dept. of Hous. Preservation & Dev., 990 F.2d 1397 (2nd Cir. 1993) After 180 days, if there has been no resolution of the matter, the complainant may ask for a "Notice of Right to Sue". Within 90 days after receipt of such Notice of Right to Sue, the complainant must file his/her action in a federal court, or be barred from filing such "EEOC-commenced" action thereafter. Ortiz v. Stickley Furniture, 1993 U.S. Dist. LEXIS 7844 (N.D.N.Y. 1993) citing 42 U.S.C. Section 2000e-5(e).
These EEOC-commenced claims are to be treated separately from the similar claims arising under 42 U.S.C. Section 1981. The statute of limitations for claims brought under 42 U.S.C. Section 1981 is derived under federal law from the most analogous state statute, which is New York's 3-year period provided under CPLR 214(2). Keyse v. California Texas Oil Corp., 590 F.2d 45, 18 Fair Empl. Prac. Cas. (BNA) 1397; 18 Empl. Prac. Dec. (CCH) Para. 8771 (2nd Cir. 1978). This type of action (1981) must be commenced within such 3-year period even if the EEOC claims are still pending. One has nothing to do with the other from the standpoint of the applicable statutes of limitations.
Provided that there has been such a timely filing with the EEOC, the complainant has a 3-year period in which to commence the action from the date the cause of action accrued.
- H. Employment Discrimination Complaints - Statutes of Limitations
A claim must be made on a timely basis to the EEOC as a condition of any relief under Title VII, whether by the EEOC or by the courts. Pursuant to 42 USC 2000(e-5), a plaintiff must file his claim within 90 days of the act(s) creating liability. This is a very short statute of limitations. Also,if the EEOC denies the claim, the statute of limitations in which an action must be brought on the Title VII claims is 90 days from the date of receipt of the EEOC's Notice of Right to Sue, which the EEOC issues when it denies relief to a complainant. Thus, there are two very short statutes of limitations governing claims made under Title VII both to the EEOC and to the courts. Ortiz v. Stickley Furniture, 1993 U.S. Dist. LEXIS 7844 (N.D.N.Y. 1933).
- I. Employment Discrimination Complaints - Generally
Complaint (i.e., "charges") may be filed at the (United States) Equal Employment Opportunities Commission, 7 World Trade Center, 18th Floor, New York, New York 10047 (NY office tel: 1-800-669-4000 ).
14. Federal Civil Rights Act, 42 U.S.C. Section 1981 - Direct Action
Protection against employment discrimination under federal law consists of Title VII (see above) administered by the EEOC and the right to direct action in federal court for violation of 42 U.S.C. Section 1981, entitled "Equal Rights Under Law", which provides as follows:
"(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
"(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
"(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
This federal statute clearly provides protects from racial and alienage (nation-of-origin) employment discrimination, and can be used through construction (or interpretation) of the contractual portion to be applicable to all types of employment discrimination prohibited under Title VII. In effect, 42 U.S.C. Section 1981 is a way of getting into court on an employment discrimination claim without having to wait the 180-day period for the EEOC to consider similar claims under Title VII.
The statute of limitations for New York cases to be commenced in court directly under 42 U.S.C. Section 1981 is 3 years. Woods v. Dunlop Tire Corp., 972 F.2d 36 (2nd Cir. 1992). However, your lawyer and you must consider the problems of res judicata and collateral estoppel but problems as to any administrative decisions which are rendered on your termination prior to a final decision in your 1981 Action. An adverse decision in administrative forums such as the EEOC, NYC Human Rights Commission, NYS Division of Human Rights, Labor Relations Management Act arbitrations, etc. could terminate your lawsuit relating to your employment discrimination claims. You must discuss this with your attorney.
15. Rehabilitation Act of 1973
This statute preceded the creation of the U.S. Equal Employment Opportunities Commission and is important for persons discriminated against in their employment opportunities due to handicap or disability. The statute does have some limitations, however, which make it less effective or important except where institutions which discriminate are using federal funds in any of their departments and the person's handicap or disability is the "sole reason" for the termination or refusal to hire. The statute, 29 U.S.C. section 794 in its relevant parts are set forth below:
Section 794. Nondiscrimination under federal grants and programs; promulgation of rules and regulations
(a) Promulgation of rules and regulations
No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitations, Comprehensive Services, and Developmental Disabilities Act of 1978. ...
(b) "Program or activity" defined
For the purposes of this section, the term "program or activity" means all of the operations of--
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or
(B) a local educational agency (as defined in section 2891(12) of Title 20) system of vocational education, or other school system;
(3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship--
(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3);
any part of which is extended Federal financial assistance.
Significant structural alterations by small providers; exception
Small providers are not required by subsection (a) of this section to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services are available. The terms used in this subsection shall be construed with reference to the regulations existing on March 22, 1988.
16. Costs of Litigation
The out-of-pocket costs (not including attorney's fees) of maintaining an employment discrimination lawsuit in New York City can range from under $3,000 to more than $50,000. Some of the costs to be considered are the court filing fee, transcript (i.e., court-reporter) costs of taking various depositions of witnesses, witness fees, photocopying costs, travel, trial transcript costs, and appellate costs.
Some attorneys may be willing to take an action on contingent-fee basis, without requiring the client to advance any costs or pay any legal fees; some lawyers will not take a case other than on an hourly-rate basis (which fees could add up to tens or even hundreds of thousands of dollars); and some lawyers take employment discrimination on a contingent-fee basis with some money paid up front to defray some of the anticipated out-of-pocket expenses.
When a complainant decides to rely on a government agency to determine and pursue his/her claim, the agency does pick up the costs, but you should discuss with your lawyer whether in your particular case the use of a governmental agency in lieu of a lawsuit would be appropriate under the circumstances of your case.
17. Finding an Experienced Lawyer
Employment discrimination litigation (as with other types of litigation) is tricky and specialized, and a client should try to obtain the services of a lawyer or law firm which is experienced in the field. The author of this booklet is experienced in this type of litigation. And so are many other lawyers. One way of identifying such lawyers is to cull through court cases to find employment discrimination cases and then determine the name of the plaintiff's lawyer. The defendant's lawyer is less likely to be interested in taking a plaintiff's case (but this is not necessarily so in all cases). Also, you could call your local Bar Association to see if they can refer you to several experienced employment-discrimination lawyers; look through lawyer classified advertisements published in the Yellow Pages and in various newspapers; and finally through asking lawyers who they might recommend.
To encourage a lawyer to take your case on a contingency-fee basis, you should prepare your estimate of damages before talking with the lawyer. The lawyer may be looking at several hundred hours of work on a case at his/her perceived hourly value of say $175 per hour, which for 200 hours adds up to $35,000 of legal work. If your damages don't add up to at least that amount (hopefully a lot more), the lawyer may not have as much interest in taking the case. Technically, I suppose, a lawyer could win $1,000 and recover statutory legal fees of $35,000, but the likelihood of this result is not too great especially considering that most court cases are settled instead of tried.
The most important thing to remember is to obtain legal advice quickly, because of the various statutes of limitations and notice requirements which are often involved.
18. Which is Best for You: Governmental or Private Assistance - or Both?
The main problem for any person unfamiliar with his or her legal rights is the lack of experience and the unavailability of advice to be able to decide how to deal with a specific legal problem. A main problem, as you have determined by now, is whether to go to one of the three governmental agencies which handle employment discrimination problems or to try to obtain help from an attorney. Another possibility is to go to one or more of the three governmental agencies and to obtain the services of an attorney.
What you should decide depends on many factors, including (i) whether you have any money to spend in seeking a redress; (ii) how much you would have to spend through a private attorney; (iii) the strength of your employment discrimination case (a strong case may be more desirable to a lawyer and give you some bargaining chips with the lawyer, whereas a weaker case might get far less attention by a governmental agency); (iv) whether you are able to talk with a lawyer or law firm experienced in employment discrimination matters; (v) whether any delay by you has caused valuable rights to expire (making it less likely for an attorney or agency to want to assist you in whatever remaining rights you may have); and (v) various other reasons which could be listed.
There is the problem of which government agency you should or could go to, and whether one agency may refer you to another. Also, there is the problem of whether you might be precluded from suing by reason of the filing of a claim with a government agency or because of an adverse decision resulting from the administrative process.
The best thing I can say is that the matter is often complicated, and an experienced attorney should be able to help you see and deal with these problems better than you can deal with them by yourself. For this reason I suggest that you consult a lawyer before filing any complaint with any governmental agency, so that you at least know the effect of any such filing on your right to sue. But you should see a lawyer immediately, to avoid the above-described problems concerning the statutes of limitations and various notice requirements.
Also, you might want to use one or more of the three government agencies to obtain additional opinions on whether you have a case. If you can't find a lawyer willing to bring an action on your behalf, for whatever reason, you might be able to convince a governmental agency (i.e., one of the 3 mentioned earlier). The agency might know more about the specific employer in question; or it might be willing to undertake a case which for economic reasons might not be attractive to a private lawyer or law firm. For example, a 70-year old employee who is hired solely because of his age might be of interest to one of the three government agencies, but a private lawyer may wonder how much in damages could be obtained, and whether his client would be able to last through the lengthy court proceedings (unless a trial preference were obtained).
Carl E. Person, attorney
325 W. 45th Street - Suite 201
New York NY 10036-3803
Tel: (212) 307-4444
Fax: (212) 307-0247
For the c.v. (resume) of Attorney Carl E. Person, click on Carl Person C.V.
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