employment law practice

How do Employment Discrimination Lawsuits Work?

This post is probably more for the lawyers out there who are curious about employment discrimination lawsuits, but below is a (relatively) simple breakdown of how these cases are analyzed.  Most employment discrimination cases are analyzed by what is called a McDonnell Douglas burden shifting framework. Under this burden shifting framework, there are 3 burdens, which shift between Plaintiff/Employee) and Defendant/Employer).First Burden: Plaintiff/Employee has a burden of production with respect to a prima facie case of discrimination.

  1. Burden of Production: This means you have to “show,” but not prove.
  2. “Prima Facie Case of Discrimination” “Prima facie” is Latin for first impression. So you have to show (burden of production) a first impression case (prima facie) of discrimination. To do this, Courts require Plaintiff/Employee to show (not prove) four elements:
    • Plaintiff/Employee belongs to a “protected class”
      • “Protected class” is a characteristic of a person which cannot be targeted for discrimination. This includes: race, gender, religion, national origin, age, pregnancy, disability, sexual orientation, and more.
    • Plaintiff/Employee suffered an “adverse employment action”
      • “Adverse employment action” means something bad happening at work. This includes: termination of employment, harassment (but it has to be pretty bad), demotion, suspension, etc.
    • Plaintiff/Employee is “qualified for the position”
      • Typically this is only relevant for failure to hire cases, as opposed to “wrongful termination” cases. If Plaintiff/Employee worked at a job and was subsequently terminated, they are almost always “qualified for the position.”
    • Adverse employment action occurred under circumstances “giving rise to an inference of discrimination”
      • “Giving rise to an inference of discrimination” means something which makes it plausible that the action taken against the employee was related to his or her protected class. Evidence can include being replaced by a person outside the protected class, timing, comments by supervisors and/or decision-makers.

If Plaintiff can meet this burden of production, the burden then shifts to Employer/Defendant Second Burden: Defendant/Employer has a burden of production to produce a legitimate, non-discriminatory justification for the adverse employment action.

  1. Legitimate, non-discriminatory justification. This means the employer has an obligation to come up with a reason for the termination, demotion, etc., other than the protected class.

Third/Final Burden: Plaintiff/Employee has a burden of proof by a preponderance of the evidence that Defendant/Employer’s stated reason is pretext for discrimination.

  1. Preponderance of the evidence. This means more likely than not. 51%.
  2. Pretext. This means that the reason put forth by Defendant/Employer is bs, and the real reason for the adverse employment action was discrimination. This is where discrimination cases are won and lost.

At the end of the day, the burden is on Plaintiff/Employee to show that, irrespective of the reason, discrimination was the real reason (or at least a big part of the real reason) for Defendant/Employer’s decision to terminate the employee. If you have any questions, feel free to contact us. We welcome calls from potential clients as well as fellow attorneys in need of guidance.



EEOC Releases Workplace Discrimination Charge Statistics

The Equal Employment Opportunity Commission (“EEOC”) has made released its workplace discrimination litigation statistics for 2012.  In total, the EEOC received 99,412 charges of employment discrimination and unlawful termination from October 1, 2011 and September 30, 2012 (versus 99,947 charges in 2011).  The EEOC filed 122 in 2012 (as compared to 261 in 2011).  The 2012 lawsuits resulted in a total monetary recovery of $44.2 million. The EEOC enforces many federal unlawful discrimination statutes, prohibiting workplace discrimination, including Title VII (which covers race, gender, national origin, and sexual orientation, among other protected classes); the Age Discrimination in Employment Act (age discrimination); the Americans with Disabilities Act (disability discrimination); the Equal Pay Act (pay discrimination); and the Genetic Information Nondiscrimination Act (genetic information discrimination).

The most prevalent charges filed with the EEOC in 2012 were for retaliation (38.1%); race discrimination (33.7%) and sex discrimination (30.5%).

If you feel that you have suffered any workplace discrimination, harassment or have been unlawfully terminated, please contact us.

Do I Need An Employment Lawyer?

Do I need an employment lawyer? Our experienced New York Employment Lawyers get calls all the time for people who are not sure whether they need an employment lawyer. You cannot bring an action just because you think it was “unfair” to terminate your employment.  There is no such thing as “unlawful termination,” or “wrongful termination.”  Unless you have an employment contract, there is really no such thing as wrongful termination.  So how do you decide whether or not to contact an employment lawyer?

Why …

There are times during the course of your employment when you may need an attorney. For example:

Deadlines: Employment laws are a morass of confusing deadlines and procedural requirements.  If you do it yourself, you might miss something and lose your claim.

Confusing claims: There are some employment laws that you might not know about and there are some laws you think exist, that may not.

Being taken seriously: Some employers will not take you seriously unless you have representation.

Confrontation and advocacy: Some people do not want to find themselves in a confrontational situation or advocating for themselves. Sometimes it’s better to have someone else advocate for you.  Attorneys are trained advocates.

When …

You should contact a lawyer immediately if:

Your current or former employer sues or threatens to sue you;

You are being asked to sign an something that you don’t fully understand, like an employment agreement, non-compete, confidentiality clause, or arbitration agreement;

You have been retaliated against for complaining about discrimination or something illegal the employer has done;

You are not being paid all the wages you’re owed (including time and a half for overtime);

You are misclassified as exempt from overtime or as an independent contractor;

You believe that you have been a victim of discrimination based upon your race, sex, religion, ethnicity, disability, age, pregnancy, national origin, color, genetic information, objecting to discrimination, or request for medical leave to care for yourself or a family member.

Do I have a case?

That’s the million dollar question, isn’t it?  The devil is in the details, but the following checklist should be a good place to start:

Cases involving termination, demotion, or suspension without pay

If you answer “yes” to any of these questions, you may have a claim. Definitely contact us if any of these occurred shortly before you were terminated, demoted, suspended, or otherwise disciplined:

●          You made a worker’s compensation claim shortly before being fired.

●          You recently objected to, refused to participate in, or reported illegal activity or discrimination by the company

●          You recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy.

●          Your employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer.

●          You recently performed jury duty.

●          You recently served in the military.

●          You recently took family or medical leave.

●          You recently served as a witness in a lawsuit or provided testimony or evidence to EEOC.

●          You recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment.

●          Your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week.  Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It is not illegal to discriminate against you for being you. Your boss does not have to like you.  He/she does not have to be nice to you.  However, if the discrimination or harassment fits into one of the categories below, you should contact us to find out more about your rights and your responsibility to report it before you make a claim.

● Race ● Sex ● Sexual harassment ● Religion ● Ethnicity ● Disability ● Age ● Pregnancy ● National origin ● Color ● Genetic information ● Retaliation for objecting to discrimination

If you feel that you have been treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color you should contact us.

NY Labor Law Legislation Update

On September 7, 2012, Governor Cuomo signed legislation amending New York Labor Law §193.   The amendment goes into effect on November 6, 2012. Section 193 of the New York Labor Law prohibits employers from making “any deduction from the wages of an employee,” except for (1) deductions required by law or (2) deductions that are expressly authorized by the employee in writing and “are for the benefit of the employee.”  The second exception permits deductions for insurance premiums, pension or health benefits, charitable contributions, and dues for labor organizations, as well as other limited deductions.

The amendment expands the list of categories for which deductions may be taken by employers with an employee’s written consent and allows deductions for overpayments due to clerical or mathematical errors or for repayment of advances on wages or vacations paid to employees.

The permissible deductions under the amendment shall now include the following:

●             prepaid legal plans;

●             purchases made at events sponsored by a charitable organization affiliated with the employer;

●             discounted parking or discounted passes, tokens, fare cards, vouchers, or other items that entitle the employee to use mass transit;

●             fitness center, health club, and/or gym membership dues;

●             cafeteria and vending machine purchases made at the employer’s place of business, and purchases made at gift shops operated by the employer (if the employer is a  hospital, college, or university);

●             pharmacy purchases made at the employer’s place of business;

●             tuition, room, board, and fees for pre-school, nursery, primary, secondary, and/or post-secondary educational institutions;

●             day care, before-school and after-school care expenses;

●             payments for housing provided at no more than market rates by non-profit hospitals or affiliates thereof; and

●             similar payments for the benefit of the employee.

Most significantly, the amendment allows employers to make wage deductions to recover “an overpayment of wages where such overpayment is due to a mathematical or other clerical error by the employer” and “repayment of advances of salary or wages made by the employer to the employee.”

Under the amended law, deductions still are permitted only if expressly authorized in writing, signed by the employee and if the deductions are, generally, for the benefit of the employee.  The amendment requires that, before any deduction is made, the employee must receive “written notice of all terms and conditions of the payment and/or its benefits and the details of the manner in which deductions will be made.”


How Much is My Lawsuit Worth?

How much is my lawsuit worth? Let’s get real.  If you want to call a lawyer, you’re thinking about the money.  It’s an important question, but one that is very difficult to answer, especially during the first stages of a lawsuit.

So … What’s it worth?

  • Many people are disappointed to learn that their case may not be worth as much as they had hoped.
  • No matter how devastating losing your job might be, many terminations are simply not against the law.  Even where terminations or other negative job actions (such as demotion, failure to hire, failure to promote) are against the law, most cases have a modest value, at most.
  • The amount of recovery varies with the type of case.  Disability discrimination case under the Americans with Disabilities Act may allow for punitive damages (damages to punish the employer), while an age discrimination case under the Age Discrimination in Employment Act will not.
  • The amount of recovery varies with the employer, as some employers refuse to settle and tend to be more litigious than others.   You must also factor in the employer’s ability to pay.

What other factors impact the value of my case?

  • Your actual losses, including past and future wages.
  • The strength of the evidence you have, the evidence that could be obtained, and the availability of credible witnesses and documents.  Is it your word against theirs or is there objective evidence of wrongdoing?
  • The estimated cost of your lawsuit, including attorney’s fees and other costs.
  • The time it is going to take to get you a recovery. Money you get today may be worth more to you than money that takes three years to recover.
  • Note that it is difficult to value a case early on because one critical piece of information is missing:  what is the other side’s story and what evidence do they have to support it?

But I’ve read about verdicts that award millions of dollars?

  • Most cases settle well before trial, for much less money than would appear by reading media reports. Here are some things to consider when assessing how much your case is likely to be worth:
    • The overwhelming majority of cases settle without ever going to trial or even having a suit filed. Results in these cases are likely to be much lower than those cases settled after the investment of the time and money of litigation.
    • Even when large awards are granted by juries, many of these awards are reduced by a judge or settled for a much lower amount in an effort to avoid an appeal. These award reductions often go unreported or are reported with less fanfare than the original large verdict.
    • Many employment law matters permit an employee to recover "compensatory" damages only. This means that you may be able to recover the value of your lost wages and some future salary and maybe your attorney’s fees. The huge award reported in the paper typically deal swith massive punitive damages in non-employment cases.  Not every type of case permits for punitive damages.

But my case is a slam dunk!

  • "Slam dunk" cases very rarely exist.  This point cannot be over-emphasized. You may have documents to support your position, people who promise that they’ll testify on your behalf, and what appears to be a clear case of injustice.  But smoking gun documents are very rare, injustice is not always or even typically unlawful, and what people say they will do on your behalf often changes once they are asked to speak out in public and place their own employment at risk.
  • There are no certainties in the law. Sometimes, despite good lawyering, a case will end with no money award at all. Discoveries about the facts or the law made after the case has begun can change how a case develops as can matters entirely external to the case, such as getting assigned a judge who is known to be "bad" for plaintiffs or a state agency that takes years to adjudicate a matter.

What should I hope for?

Be realistic.  Focus on being compensated for the wrong committed against you and not on reaping a windfall.

What should I do?

Contact us, of course!

NY Employment Lawyers

State and federal law prohibit against employment discrimination based on your race/color, sex, sexual orientation, gender identity, national origin, and religion as well as discrimination based on pregnancy or a disability.  This discrimination may be in the form of unequal treatment regarding your pay, wage, medical leave, or you may be experiencing sexual harassment.   Unequal or unfair treatment and discrimination can take many forms.  This is why you should consult with our experienced NY employment lawyers to help educate you about your rights and fight for you. Granovsky & Sundaresh has extensive experience fighting for our clients’ rights in state and federal courts.  Our experienced NY Employment Lawyers will represent you aggressively, honestly and effectively. If you feel that you are a victim of discrimination, or otherwise a victim of unfair or unlawful termination, you should absolutely have one of our experienced NY Employment Lawyers review your potential claims.

We will give you an honest assessment of your situation and, if we decide to work together, we’ll develop a straightforward plan of attack to get you the results you deserve.  Contact us for a free consultation.  An experienced NY employment attorney at our firm will get back to you within 24 hours.

Motion to Dismiss vs Motion for Summary Judgment

What is the Difference:  Motion to Dismiss vs Motion for Summary Judgment

Typically, a defendant has two opportunities to get rid of a lawsuit before it goes to trial.  The first is a motion to dismiss, which is filed shortly after a complaint is filed.  The second is a motion for summary judgment, typically filed after discovery is completed.

A motion to dismiss essentially asserts that the plaintiff has failed to state a viable cause of action.  Typical examples are where a plaintiff fails to (or cannot) set forth all of the necessary elements of a claim or misses the statute of limitations.

The motion for summary judgment is typically filed after the parties have completed discovery (e.g., depositions, interrogatories, document demands, etc.).  A motion for summary judgment will be granted where there is no genuine issue as to any material fact.  If there is a dispute as to any material fact, the court is bound to side with the “non-moving party” (typically the plaintiff) on any such dispute.  Also, the court doesn't make any judgments about who is more believable – that is left to the jury.

A defendant’s chances of winning a motion for summary judgment are considerably greater than on a motion to dismiss.  If the motion for summary judgment fails, the complaint survives and the case proceeds to trial.  So there you have it, the whole "motion to dismiss vs motion for summary judgment" in a nutshell. If you have any questions, please contact Granovsky & Sundaresh PLLC.

Granovsky & Sundaresh PLLC - experienced employment lawyers can help
Granovsky & Sundaresh PLLC - experienced employment lawyers can help