Employment Lawyer Blog

A former fashion director at the men's magazine Playboy has filed a high-profile suit against his former employer in Manhattan Supreme Court, seeking damages of $4 million for age and sex discrimination. The plaintiff, a man named Joseph DeAcetis, alleges that his boss, the director of Playboy's editorial section, teased and criticized him for his "old" appearance and sexual orientation. Among the slights alleged:

•    The director made fun of DeAcetis for liking baseball, claiming that baseball is not a sport that "girls" typically enjoy.

•    After DeAcetis did an interview on a local TV station to plug Playboy, he returned to the office to suffer an avalanche of abuse from his boss, who said he looked "old" on TV and that his "gray hair" was off-putting and projected the wrong attitude for the brand.

•    DeAcetis worked for Playboy since 2000; he'd been on staff since 2005. But despite receiving high praise from Playboy's CEO and introducing numerous innovative concepts, he found his work responsibilities methodically stripped away by his boss and handed to younger, more inexperienced people.

•    Two months after appearing on the aforementioned TV show, DeAcetis was fired. He claims he lost his job because of his age and his homosexuality.

The plaintiff is seeking damages for emotional distress and anguish as well as for back pay owed. A Playboy representative provided a statement to reporters that the magazine would conduct an internal investigation to sort out the facts.

Discrimination and retaliation at fashion magazines seems to be a hot button issue of late. Consider, for instance, the TV series Ugly Betty and Mad Men -- both of which portray the lives of cutthroat strivers at high-profile magazine/ad firms. The Devil Wears Prada - a bestselling book later adapted into a popular movie starring Meryl Streep - depicted a fictional fashion magazine editor as the ultimate "Boss From Hell."

Perhaps one reason why these fictional exposes of the magazine/ad industries appeal to the zeitgeist is that they tap into something real that's going on. In other words, perhaps these industries promote a mindset that cultivates age and sex discrimination.

According to a March 18, 2009 article, a New York noodle shop owner named Tsu Yue Wang has been ordered to shell out more than $2.3 million in back pay owed to hundreds of current and former employees at his restaurants in Queens, Flushing, and the Upper West Side. The suit alleges long term and systematic violations of labor laws.

 

Mr. Wang was accused of failing to pay minimum wage to his delivery people, cooks, wait staff, and other employees and denying overtime legally due. Kitchen staff, for instance, regularly labored more than 60 hours a week and received just $300 in compensation - a rate well below New York City's minimum wage. A separate lawsuit filed against Mr. Wang in 2007 alleges even grosser abuses of Wage and Hour rules - some of Mr. Wang's employees claimed to have earned just $1.40 per hour for brutal and demanding restaurant work.

 

Unfortunately, this noodle shop abuse case appears to be more the rule than the exception when it comes to restaurant Wage and Hour violations. Joseph, Herzfeld, Hester & Kirschenbaum's attorney Maimon Kirschenbaum has prosecuted many similar Wage and Hour matters over the past several years. Three conclusions can be drawn:

1.  Wage and hour violations seem systemic and built into the culture of the U.S. restaurant industry.

2. Despite the rash of recent lawsuits filed as well as education efforts made by groups like the Department of Labor, many restaurateurs stubbornly refuse to change their employee-abusive labor practices, while denying  it is occurring.

3. The employees harmed by these violations tend to be from particularly vulnerable and defenseless classes. That is, abused employees disproportionately tend to be relatively uneducated, poor, and foreign born.

Fremantle North America - a massive reality TV production company best known for co-producing the world's biggest television program, American Idol - has come under the gun for Wage and Hour violations. Several Fremantle employees filed suit against Fremantle in Los Angeles Superior Court on March 19, 2009, accusing the company of forcing producers and coordinators to work seven days a week without appropriate breaks for food or downtime. In some cases, employees had to work as many as 20 hours or more during shifts. The suit also alleges that Fremantle illegally doctored its payroll.

 

Fremantle isn't the only reality TV production company facing potential Wage and Hour violations. Producers of other hit shows, like Temptation, The Janice Dickinson Modeling Agency, and The Bachelor have also come under fire.

 

Over the past several years, reality TV segment and story producers have attempted to unionize or otherwise stand up for their collective rights. But despite the support of many of their brethren in the scripted entertainment world (represented by the Writers Guild of America), this effort to date has yielded little fruit.

 

Moreover, the Wage and Hour violations described in these suits seem to be culturally normative within the universe of reality television.  Inside experts speculate that cost cutting measures employed by the "majors" (NBC, ABC, CBS, & FOX) as well as cable networks may be indirectly responsible for this epidemic of Wage and Hour violations. Since production companies don't have their previous (larger) budgets for their shows, they're forced to scrimp and cut corners; as a result, producers, coordinators, and other employees often must "pick up the slack" to make sure shows get in on time and on budget.

According to a press release from the United States Equal Employment Opportunity Commission dated March 16, 2009, United Airlines has agreed to pay one of its disabled workers $850,000 to settle a claim of disability discrimination. The employee, Samuel Chetcuti, worked at the United San Francisco terminal. Mr. Chetcuti has epilepsy and, as a result, can only perform light work. However, his condition does not prohibit him from working overtime. Unfortunately for Mr. Chetcuti, his bosses at United prevented him from working overtime - even though doing so was in direct violation of the Americans with Disability Act (ADA).

 

According to the details of the settlement, not only must United pay out to Mr. Chetcuti, but the company also must investigate any other similar disability discrimination charges filed on behalf of its 52,000+ employees.

 

While at first blush, this violation of the ADA may seem relatively minor and "nitpicky" to the casual observer, it's important to calculate the costs to workers. Overtime pay for service jobs in the airline industry can add up to a significant income per month; individuals who can physically do overtime work but who are unfairly denied the chance can suffer severe financial hardships for this lack of opportunity.

 

Hopefully, United's proactive response to this matter will lead to a more rigorous adherence to ADA protocols among all airlines.

According to a March 11, 2009 press release put out by the United States Equal Employment Opportunity Commission, a Las Vegas based business called N-W Ventures, LLC has been ordered to pay out a settlement of over $450,000 to past and current employees for violating Title VII of the 1964 Civil Rights Act. NW Ventures LLC owns entertainment and restaurant properties in Texas, Chicago, and Nevada.

 

The lawsuit alleges that eight African-American employees endured name calling and discrimination on the job. When the employees complained to upper management about the problems that they were having, they were summarily fired. On top of this indignity, the workers suffered insult to injury when their bosses retroactively invented reasons for the terminations to avoid being sued.

 

Both retaliation and race-based employment discrimination can be actionable. Yet despite widespread campaigns to snuff out these kinds of abusive practices, unfortunately, many employers continue to flout the law. Particularly in the restaurant and bar industries, harassment and retaliation practices persist and seem almost de rigueur.

 

The good news is that lawsuits like this one brought by the EEOC and others brought by firms like Joseph, Herzfeld, Hester & Kirschenbaum, hit violators where it counts - in the pocketbook. These legal actions financially motivate offenders to change their ways and come more into line with legal and ethical norms.

According to a December 24, 2008 story in The Associated Press, the discount retail giant Wal-Mart has been ordered to pay out well over half a billion dollars to settle dozens of lawsuits for violations of Wage and Hour laws.

 

This settlement marks the culmination of years of legal wars between Wal-Mart and its employees. Wal-Mart's alleged violations have been documented in countless newspaper articles, magazine stories, books, and even a documentary movie (Wal-Mart: the High Cost of Low Prices). Allegations against the company have included:

 

• Failing to pay employees for over time.

 

• Forcing employees to do work "off the clock."

 

• Illegally withholding benefits.

 

• Failing to give meal and rest breaks to workers.

 

• Putting workers in dangerous situations.

 

In a spectacular example of the perils Wal-Mart employees have faced, last year an employee was literally trampled to death by customers stampeding to take advantage of an early morning clearance sale on electronics. This tragedy stirred even the most apathetic and Wal-Mart friendly media to demand better treatment for workers.

 

Now that the Bentonville, Arkansas based firm has been ordered to remunerate employees on this massive scale, hopefully the company will be motivated to modify its corporate culture to avoid future Wage and Hour violations.

Manhattan Supreme Court will hear the case of a latina waitress named Melody Morales, who has accused the Hawaiian Tropic Zone Restaurant of race-based job discrimination. Morales claims that her application for employment was turned down -- despite her "ample" qualifications in the looks department -- due to the fact that she is Puerto Rican and Dominican in ethnicity.

Morales's suit is not the first discrimination or harassment suit to be brought against the Hawaiian Tropic Zone. In a separate matter, four female employees have also sued the restaurant. In their Federal Court case, they're seeking over half a billion dollars in damages. These women claim that the management of the restaurant allowed a chronic and pervasive atmosphere of sexual harassment and discrimination to flourish.

The cases of Melody Morales and these four women force one to conjure up interesting questions of law, ethics, and even feminist theory. On the one hand, Morales and the other four women who've sued the Hawaiian Tropic Zone all ostensibly didn't mind exploiting their bodily assets to earn money. On the other hand, these women refused to endure harassment and bullying without putting up a fight. So their roles as feminist icons (or antifeminist icons, as it were) are complicated and not subject to easy analysis.

What's not complicated is the fact that sexual harassment and race-based discrimination cases like Morales's appear to be a problem endemic to many restaurants. With better legal protections in place for women and minorities -- and better education for managers and owners -- hopefully we will see the number of these types of discrimination suits dwindle.

Older Americans (55 years plus) have historically often found themselves at disadvantage on the job market. Not only must older Americans contend with age related job discrimination, but they also have less time to wrangle with retirement related financial concerns. In addition, given that the U.S. boasts such a youth centric culture, elderly Americans often find it difficult to navigate the cultural mores of the modern workplace.

Experts in the field of work discrimination fear that more and more elderly Americans will find themselves out of work, out of place, and out of luck because of the increasing role that technology has been playing in shaping business processes. In the past five years, for instance, the world of e-commerce and social networking has exploded. YouTube, Facebook, LinkedIn, and MySpace may seem unfamiliar to members of the so-called "Greatest Generation." Technologies like Twitter, RSS, and Skype, moreover, may seem utterly foreign.

Even more discouraging is the fact that employers and clients seem to be leaning on these technologies and communication modes more and more. A "hot to trot" 34 year old boss at a telecom company may be loathe to even consider résumés of applicants who are older than 50 just because she may fear that they won't possess an adequate understanding of the cultural business landscape.

To prevent age related job discrimination or harassment from impeding opportunities, older Americans would do well to become at least proficient in relevant technologies. At risk individuals should also study up on their rights as employees and be prepared to strike back against overt discrimination or violations of equal opportunity laws.

A new book published by Harvard historian and sociologist William Julius Wilson, entitled "More Than Just Race," has stirred the always-tempestuous cauldron that is our "national discussion about race." Wilson's politically unique prospective offers new insights into the origins of race-based job discrimination. His book examines the legacy of racism in the US from multiple perspectives and comes to a constellation of complex conclusions. Whereas liberal scholars have tended to blame societal racism for impeding the upward mobility of African Americans and other minorities; and conservatives have blamed degenerative "ghetto culture" for impeding employment opportunities for minorities; Wilson takes a broader view.

According to Wilson's philosophy, both demographic and social cultural trends have influenced the trajectory of America's minority communities. In other words, Wilson rejects neither the conservative nor the liberal view. Instead, he synthesizes them into a more unified theory. The result is a fascinating multi-pronged analysis that defies easy stereotyping.

Wilson opines that socioeconomic status can be much more important than race in determining destiny. He acknowledges the many successes of the Civil Rights movement but suggests that those victories may have accidentally (and ironically) made life tougher for very low income African Americans. The so-called "white flight" of upwardly mobile white Americans out of the inner city wasn't purely "white." The exodus included many of the African American community's most promising leaders, businesses, and educators and left the inner city even more "ghetto-ized" than before the Civil Rights movement.

As a result of his contrarian tactics, Wilson has taken flak from intellectuals on both the left and the right of the political spectrum. His non-polemical prose may leave leaders hungry for "red meat" disappointed. But his scholarly analysis of the depth and breadth of inequality in the US cannot be undersold. Some have even compared his work to a book published in the 1960's by the controversial politician Daniel Patrick Moynihan, who -- at the time -- received tremendous flak for voicing views counter to those held by mainstream liberal theory.

There seem at first glance to be few practical implications for job discrimination and race based employment discrimination theory in Wilson's work. But perhaps deeper analysis will yield more real world applications. At the very least, if he can influence the field of jurisprudence to view job and race discrimination cases in a more historically-grounded light, we will all be the better for his efforts.

For years, Manhattan residents have enjoyed the delights of Saigon Grill, a Vietnamese restaurant owned and operated by a self made entrepreneur from Cambodia named Simon Nget. Unfortunately, behind the scenes of this bustling eatery, serious wage theft violations were going on. According to a New York Post article from October 22, 2008, these blatant violations included the following:

•    Paying delivery workers $2 an hour - well under the minimum wage of $7.15.
•    Demanding that employees cash their paychecks and then return significant portions of the money to Nget in cash.
•    Fining employees for failing to put orders into the system computer.
•    Firing workers who picketed the restaurant for unfair practices.

The District Court judge who oversaw the case, Michael Dolinger, drove home a message -- not just to Nget but also to other restauranters in New York City who might be unfairly garnishing their employees' wages or committing other forms of wage theft -- that behavior like failing to pay overtime and unfairly classifying employees as independent contractors would not be tolerated.

All told, the Vietnamese cuisine owner was ordered to pay out $4.6 million to three dozen delivery employees - many of whom were illegal immigrants from China - to cover wages lost, punitive damages, Federal and State wage violations, and other fines and expenses. One delivery worker was awarded over $300,000.

Whether Judge Dolinger's ruling will send an effective message to others in the business to community remains to be seen. But it's good to see at least some crackdown on egregious wage violations and harassment practices.

On Wednesday March 4th, 2009, a group organized by Richard Iannuzzi of the New York City United Teachers Union and local city Bishop, Howard Hubert, sought to raise awareness about the growing problem of wage theft in the city. This unfortunate and unethical practice involves the exploitation of wage level laborers. For instance, a boss or shift manager at a coffee shop may "take" (steal) money from the tip jar, thereby depriving baristas of their weekly tips. Or a shop owner may - illegally  - categorize a full-time worker as a freelance worker or independent contractor to get out of paying benefits.

At this media conference, Iannuzzi discussed how significant a problem wage theft has become in America--and it's a particularly pernicious one during the current down economy. Some studies suggest that 10 million US workers may already have been victims of wage theft. And regulators seem to be doing less and less about it!

Consider that, last July, the Government Accounting Office came down hard against the Wage and Hour Division of the Labor Department for being lax in enforcing violations of Wage Theft Law. For instance, a decade ago, the Labor Department was on average pursuing nearly 50,000 violations. By 2007, that number had dropped to under 30,000. Punitive tactics--to prevent recidivism among offending employers--have also been watered down significantly. And the GAO estimates that, over the past decade, hundreds if not thousands of wage theft cases have gone unresolved due to bureaucratic incompetence or improper handling.

New York boasts a Wage Watch Program which goes to bat on behalf of around 17,000 jilted New York employees every year. But programs like this notwithstanding, the issue will likely remain at the forefront of the American consciousness for some time.

Consider that, in the 1940s, the ratio of federal wage investigators to workers was more than 1,000% of today's ratio of investigators to workers. A disturbing trend, indeed!

In March, 2009, the U.S. Supreme Court plans to hear the case of Ricci v. DeStefano -- a pivotal affirmative action related matter that has been migrating through the court system for more than 6 years.

Here's the backstory. Back in 2003, the City of New Haven subjected candidate firefighters to a qualifying exam. Despite going to extensive lengths to ensure that the exam was "race neutral," the results skewed dramatically along racial lines. African-American candidates for Lieutenant and Captain positions passed at half the rate of white firefighters. Fearing that allowing the results of the exam to stand could violate prima-facie rules of Equal Employment, (which hold employers in suspicion if they promote one ethnic group disproportionately to another ethnic group), Mayor John DeStefano office's nullified the results.

This action brought charges of reverse discrimination -- the 19 white firefighters and one Latino firefighter who had passed the exam alleged that they had been denied opportunity based on the color of their skin -- in direct violation of Title VII. Ironically, claimed the plaintiffs, in bending over backwards to ensure equal opportunity to African American firefighter candidates, the city had in effect resorted to racial typecasting.

The battle over interpretation of Title VII may have significant impacts for future affirmative action and employment discrimination cases. It also raises a number of thorny ethical and legal philosophical questions. For instance:

•    If the defendants win, will other employers take race even more into account when assessing candidates for promotion?

•    If the New Haven 20 (as the plaintiffs have come to be called) prevail, will other similar racially tinged antidiscrimination cases deluge the court system?

•    In general terms, does it make sense to correct for past racial injustices by using race-based affirmative action to "balance the scales"? Or does this practice merely rub salt in our nation's racial woods?

•    How will the outcome of Ricci v. DeStefano impact race relations in the City of New Haven? Given that the New Haven is famous for its racial and class divides -- prestigious Yale University, for instance, is located just blocks away from some of Connecticut's poorest urban areas -- might The Supreme Court's ruling touch off frustrations in this community?

Although President Obama has been quick to take measures to make it easier for discriminated employees to file claims against culpable parties -- most significantly by passing the Lilly Ledbetter Fair Pay Act in February '09 -- newly released statistics show that plaintiffs in job discrimination lawsuits seem to be having a tougher road to hoe than ever in prevailing at trial.

According to a recent Harvard Law Review study, over the past 30 years, plaintiffs in job discrimination lawsuits have won only 15% of their cases; whereas plaintiffs in other civil matters have won over 50% of their legal battles.

A number of factors may be at play in defining this trend:

1.    Employers seem to be far more cautious in terms of documenting the reasons for why they fire people. By establishing a paper trail -- dotting all the "i's" and crossing all the "t's" -- employers leave themselves less vulnerable to discrimination lawsuits.

2.    Several crucial Supreme Court cases have made it more difficult for plaintiffs to get comprehensive hearings. One such precedent-setting matter was Bell Atlantic Corporation v. Twombly, which shifted more burden to plaintiffs to prove the "plausibility" of claims.

3.    More discrimination cases are dispatched via "summary judgment" than in the past. According to the Federal Judicial Center, on average, in 9 out of 10 Federal job discrimination cases, employers now opt to settle at summary judgment.

4.    Whereas in the past, a Federal employer might fight tooth and nail against a reasonable or even an obvious claim; thanks to the precedent that's been set over the past decade, employers now take discrimination suits much more seriously and thus work harder to settle out of court.

5.    The job discrimination cases that do go to trial now tend to be more frivolous because more legitimate claims are more often settled during pre trial. 

Maya Perez, a transgendered employee of a San Francisco franchise of Burlington Coat Factory, has filed a wrongful termination suit against her employer based on an interpretation of California's 2004 Fair Employment and Housing Act.  

Perez alleges that she was wrongfully terminated from her job after complaining on several occasions of harassment directed at her by both employees and customers.  Perez--who was born a male named "Steven" but who transformed her gender identity beginning in 2001--alleges that she was the victim of pervasive and knowing harassment.  She claims fellow employees groped her, called her slurs like "faggot," and even physically assaulted her.  In addition, she claims to have been the victim of customer aggression.  In one instance, an angry customer threw a table at her; management did little to defend her. 

Even after filing formal complaints with the company's HR chief and the State's Department of Fair Employment and Housing, Perez found no relief from the harassment.  In January 2009, Burlington terminated her employment, provoking her to finally file a discrimination suit.

Perez's case is one of only of a handful of transgender employment discrimination cases currently being litigated. Since plaintiffs, defendants, and judges alike seem to be swimming in uncharted legal waters, it will be interesting to watch whether Perez's matter sets a precedent for how future transgender job discrimination cases might be handled.

In addition to seeking her job back, Perez is also asking for punitive damages, legal fees, and money to compensate for her distress and wages lost.  Perez's case is being handled by the San Francisco Legal Aid Society's Employment Law Center, which also provides legal guidance for many plaintiffs in San Francisco's gay and lesbian community.  

Especially in light of California's recent turn in the spotlight for its passage of Proposition 8 (banning homosexual marriages), this case will likely receive some serious media attention. After all, California has often been a bellwether state for antidiscrimination law; the verdict in this matter could presage how similar cases may be handed across the nation in the nest few years.

A recent court decision in the matter of Williams v. New York City Housing Authority has made it even easier for discriminated-against parties in the city of New York to sue their employers.

Even prior to the verdict in Williams, New York City's human rights law was already widely seen as far more liberal than both State and Federal guidelines. In Williams, the Court interpreted the local Civil Rights Restoration Act of 2005 to expansively redefine the obligations of both employers and employees when it comes to on the job harassment.

The new interpretation will likely have profound consequences for corporate cultures in NYC.  For instance, a NYC employee used to be able to file a discrimination claim only after being the victim of protracted and pervasive harassment.  

Under the new guidelines, however, an employee can file a claim for practically any harassment in excess of "petty slights" and "trivial inconveniences."  Moreover, it's the employer's responsibility--not the employee's--to prove that the harassing conduct was indeed petty/trivial.

The Williams decision has already rippled through the New York City business community and led to institutional changes. Word of mouth reports, for instance, suggest that city officials have seen a marked uptick in the number of discrimination filings.

In 2008, a perfusionist at an Indiana Hospital sued a cardiovascular surgeon for workplace bullying and won an award of $325,000.  Although the surgeon appealed the ruling, the Indiana Supreme Court upheld the decision in this case (Raess v. Doescher). Part of the reason the Court found in favor of the plaintiff, no doubt, was the overt nature of the bullying in
this case. The Defendant was alleged to have sworn at the perfusionist; backed him into walls; and screamed at him in a beet red rage that boarded on actual physical assault.  Moreover, numerous witnesses attested to the surgeon's outbursts, and there was a significant paper trail.

Will the decision in Raess v. Doescher drive Indiana or other states to adopt workplace bullying laws?  A recent Zogby survey found that more than a third of American workers report having been bullied at their jobs.  Yet out of the more than one dozen bills proposed to make workplace bullying illegal, to date, none has passed.

Several arguments have been made to stall anti-bullying legislation. These include:

1. The slippery slope argument--one person's bullying may be another person's gentle ribbing.  If bullying is made illegal, so this argument goes, we'll see a rash of lawsuits that will choke productivity and glut the court systems.

2. The problem is overblown--sure, nearly 40% of Americans claim to have been "bullied" at work, but the vast majority of these cases have been minor and short lasting.

3. On the job bullying is a "rite of passage"--moderate hazing is a healthy ritual and could actually lead to solidarity.  Consider that recruits for the Armed Services, for instance, must go through basic training and deal with testing that borders on bullying--and that these exercises seem to make the Armed Forces stronger and more unified.

4. Employees already have enough protections--given that, if you are member of a so called "protected class," you can already file suit for harassment or discrimination, there is no need for the introduction of yet another way potentially to sue employers.