March, 2013

March 14, 2013

U.S. Second Circuit Court of Appeals Upholds Same-Sex Harassment Claim

by Salvatore Gangemi of Murtha Cullina LLP

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in employment. In 1998, the United States Supreme Court held in Oncale v. Sundowner Offshore Servs., Inc. that sexual harassment also included same-sex harassment and violated Title VII. Recently, the United States Court of Appeals for the Second Circuit, which covers New York, Vermont and Connecticut, reversed a decision of a District Court in the Western District of New York, dismissing a same-sex harassment claim on summary judgment grounds. The Second Circuit concluded that there was ample evidence and issues of fact that could support a jury verdict in favor of the harassed employee.

In Barrows v. Seneca Foods Corp., Jeffrey Barrows alleged that his male supervisor, Victor Sanabria, sexually harassed him by touching his genitals and otherwise creating a hostile working environment on the basis of sex. Among other things, Sanabria referred to Barrows as a “faggot” and leveled vulgar sexual comments at him during work. In addition, Barrows alleged that Sanabria had likewise harassed other men in similar fashion, but not women. The District Court for the Western District of New York had previously dismissed the lawsuit, holding that “there was no evidence that [Barrows] had suffered discrimination because of his sex.” (emphasis in original).

The Second Circuit reversed, noting that under the Supreme Court’s decision in Oncale, the focus on whether sexual harassment has occurred is on “whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g. hostile work environment] to which members of the other sex are not.” Indeed, this is the very essence of a sexual harassment claim, and it does not matter that the harasser and victim are of the same sex. In addition, in order for the sexual harassment to be illegal, it needed to be “severe or pervasive.” The Second Circuit held that a jury could find that “Sanabria treated women better than men and that, therefore, men were ‘exposed to [a] disadvantageous term[ ] or condition [ ] of employment to which [women] were not.'” (alterations in original).

March 12, 2013

Congress Considers Bill to Increase Minimum Wage

by Salvatore Gangemi of Murtha Cullina LLP

Earlier this month, on March 5, 2013, a bill was introduced to increase the federal minimum wage from the current hourly rate of $7.25 to $10.10. According to the proposed Fair Minimum Wage Act of 2013 (S.460, H.R. 1010), the minimum wage would increase by .95 each year for three years. Thereafter, the minimum wage would increase automatically as a result of cost of living factors. A hearing on the bill will be held on March 13, 2013 before the Senate Committee on Health Education, Labor and Pensions.

March 11, 2013

Second Circuit Holds that Timely Arrival to Work Is not Always an Essential Function of the Job Under Disability Discrimination Laws

by Salvatore Gangemi of Murtha Cullina LLP

Last week, on March 4, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), reaffirmed the importance for an employer to conduct a fact-specific analysis in considering requests for reasonable accommodation under the Americans with Disabilities Act (ADA).
In McMillan v. City of New York, it was undisputed that McMillan’s disability necessitated treatment that prevented him from arriving to work at a consistent time each day. The Second Circuit noted that although in most contexts, timely arrival at work is considered an essential function of the job, which could render futile any attempts to reasonably accommodate the situation, it was not at all entirely clear whether timely arrival at work was an essential function of McMillan’s job. Under McMillan’s circumstances, he could offset the time missed with additional work hours in order to complete the essential functions of his job.
Ultimately, McMillan sued the City under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law, alleging among other things that because the office remained open until 10:00pm, and he often worked past 7:00pm, he would still be able to arrive late and work the requisite number of full time hours per week.

March 6, 2013

Movie Chain Sued in Putative Class Action for Overtime Pay in New York

by Salvatore Gangemi of Murtha Cullina LLP

On March 4, 2013, AMC Entertainment Inc. was named a defendant in an overtime lawsuit, alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law. The complaint, which was filed in the United States District Court for the Southern District of New York, alleges that AMC failed to provide overtime pay to employees, who worked as ticket sellers, ushers, concession workers and ticket takers, for the period commencing in March 2007 to the present.
According to the overtime complaint, the named plaintiff was not permitted to “punch in” until after she changed into her uniform, and was forced to punch out prior to changing out of her uniform at the end of her shift. The complaint alleges that, as a result of this “time shaving,” her time cards do not accurately reflect the number of hours she was required to work.