Our Blog Has Moved!

on Feb 14 in Social Media tagged by Anthony Rao

Anthony Rao and Michael Tiliakos have joined international law firm Duane Morris. You can find the same great insights on NY and other labor law issues on our new blog at Duane Morris New York Employment Law Blog.
 
http://blogs.duanemorris.com/DuaneMorrisNYEmploymentLawBlog/

EEOC Equal Pay Act Class Dismissed on the Pleadings After Three Year Investigation

on May 22 in Class/Collective Action, Discrimination tagged , , , by Anthony Rao

In EEOC v. Port Authority of NY and NY, 10 Civ. 7462 (here), the Southern District of New York granted the Port Authority’s motion for judgment on pleadings as to the EEOC’s Equal Pay Act claims on behalf of a class of non-supervisory female in-house attorneys.

After a three year investigation and the Port Authority’s refusal to engage in conciliation, the EEOC brought its class claims (the 2010 EEOC press release is here).  The complaint (and subsequent written responses to contention interrogatories detailing comparators) alleged the female employees were paid less than male employees “who have substantially similar lengths of service and experience” and who “hav[e] the same job code” for “jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”  At a court conference, the EEOC stated “an attorney is an attorney is an attorney.”

Although the court accepted as true “all well-pleaded facts alleged in the pleadings — including, … the [discovery] Responses — and dr[e]w all reasonable inferences in plaintiff’s favor,” the court held the allegations were not facially plausible.  The EEOC improperly focused on the employees themselves rather than examining the content of the jobs.  The court quoted the EEOC’s own regulations and stated: “When determining whether the claimants’ and comparators’ jobs require the same skill, we should consider such factors as experience, training, education, and ability … If the amount or degree of skill required for one job is significantly different from that required for another job, they cannot be deemed equal, regardless of how similar they otherwise are.  … The effort prong measures the physical or mental exertion needed for the performance of a job, while responsibility concerns the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation.”

The court thumped the EEOC for pleading conclusory allegations which did “nothing more than track the language of the statute.”  Although the contention interrogatory responses helped (the court found that “equal work” was adequately alleged), the EEOC failed to meet the required “skill” and “effort” prongs.  The EEOC “[did] little more than recite broad generalities about attorneys in general, rather than say anything about Port Authority’s attorneys in particular.”

Finally, the court analyzed the EEOC’s argument that it need not describe in detail the requirements of the jobs at issue if the Port Authority does not itself treat the jobs as different (the argument is that the Port Authority has “functionally conceded that all of the jobs in its law department require the same skills, effort, and responsibility”). The EEOC argued, among other things: (a) that the Port Authority applies similar performance objectives to the jobs, including certain competencies in its evaluations; (b) the employees do not practice in discrete, unconnected subject areas; and (c) the employee maturity curve, which dictates upper and lower ranges of salaries for employees at varying levels of experience, does not differentiate between divisions in the department.

The only close call was the EEOC’s “maturity curve” argument.  The court stated: “The maturity curve specifies ranges of possible salaries based on experience; determinations of specific salaries within those ranges must be based on other factors. The EEOC has alleged without substantiation that those determinations are based on sex, but — without any analysis of job content — we cannot rely on that bald assertion.”

Second Circuit Finds Sex Harassment Claim Was Not Accidental or Minor

on May 07 in Harassment tagged , , , , by Anthony Rao

A female plaintiff sued her employer (NY State Division of Parole) alleging sexual harassment by a female supervisor (not plaintiff’s supervisor) in violation of Title VII.  The Eastern District of New York granted summary judgment for the employer finding that the alleged touchings of plaintiff’s breasts were minor and incidental, episodic, may have been accidental, and did not occur because of plaintiff’s sex. The Second Circuit reversed.

Plaintiff’s complaint alleged that the female supervisor touched her breasts (she was “subjected to homosexual advances”) on three occasions between mid-April and mid-September 2005 (the supervisor allegedly brushed up against her breasts, rubbed up against her breasts in a hallway, and walked up behind her while she was seated and felt her breasts).  Plaintiff alleged she was uncomfortable, she complained to her supervisor and to Human Resources (but no action was taken), and attempted to avoid going into the supervisor’s office but was required to do so when called.

The Court stated the district court’s analysis that “[e]ven drawing all inferences in [plaintiff’s] favor, the contact may have been purely accidental” was flawed.  Because the supervisor repeatedly went out of her way to make contact with plaintiff, always made contact with the same part of plaintiff’s body, never apologized, and ‘rubbed up against’ and ‘felt’ plaintiff’s breasts, the touchings could not be considered “accidental.”  The Court stated “… the interpretation of whether [the touchings] were accidental or not – and whether or not they were because of [plaintiff’s] sex – were issues of fact for the jury to decide, not issues for the court to resolve as a matter of law.”

Although plaintiff stated that she did not attribute any suggestive or sexual remarks to the supervisor, the Court stated “if the claim were that a supervisor – of either gender – stated to a female employee ‘I want to feel your breasts,’ … a jury could easily infer that that stated desire was because of the employee’s sex … A district court could not properly rule as a matter of law that that gender-specific harassment was not because of the employee’s sex.”

The bottom line as stated by the Court: “the repeated touching of intimate parts of an unconsenting employee’s body is by its nature severely intrusive and cannot properly be characterized as abuse that is minor.”

The case is Redd v. New York State Division of Parole and can be found here.

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