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In a recent ruling, New York’s highest court recognized the right to counsel when a student is accused of serious misconduct. Matter of Bursch v. Purchase Coll. of the State Univ. of N.Y. In this instance, a college student was accused of multiple violations of the College’s code of conduct, including sexual assault. At…

Contrary to the U.S. Supreme Court’s restriction of class actions in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), courts have granted the Equal Employment Opportunity Commission (“EEOC”) broad power to issue nationwide pattern-or-practice subpoenas even though only individual charges were filed against the employer. For example, eleven current and former employees, working…

The Second Circuit recently held that the Americans with Disabilities Act (“ADA”) encompasses claims for hostile work environment harassment (“HWE”). Fox v. Costco Wholesale Corporation. While this plaintiff-friendly ruling may be disappointing to employers, the decision also contains some helpful analysis for defense of those claims.

In Fox, Plaintiff brought ADA claims alleging…

The general rule is that a federal discrimination claim should be dismissed unless a timely charge was filed with the Equal Employment Opportunity Commission (EEOC). Whether that statutory requirement was jurisdictional (and could not be waived) or procedural (and must be presented to the Court in a timely manner or the defense is waived) was…

As recently reaffirmed by the U.S. Court of Appeals for the Second Circuit, neutral application of a policy to prorate incentive compensation contributions during leaves of absence does not unlawfully interfere with an employee’s rights under the Family and Medical Leave Act (FMLA).  In Clemens v. Moody’s Analytics, Inc., Plaintiff contended that he was…

Workplace law changes constantly. Employers and EPL carriers need to keep up with expanding risks, changing legal obligations, reason-defying jury verdicts, the #MeToo movement, and a record number of threatened and asserted claims associated with these changes. Our 2019 EPLI Trends Report gives an overview of the related risks and exposures employers and, by extension, …

Having the power to grant, deny, or revoke hospital privileges does not give rise to liability under Title VII of the Civil Rights Act of 1964, according to a recent decision by the Court of Appeals for the Seventh Circuit. Yelena Levitin, M.D. v. Northwest Community Hospital.

For almost thirteen years, Dr. Yelena Levitin had…

Faced with a question not yet addressed by the Third Circuit, a federal judge in Pennsylvania found an employer, as well as individual managers, may be held liable for an employee’s claim of a hostile work environment based on conduct by a non-employee who had regular contact with the employee. Hewitt v. BS Transp. of …

Employers often are reluctant to take adverse actions against poorly performing employees with a history of medical conditions due to the cost and risk involved in litigation (even though no federal, state or local law is intended to protect deficient job performance).   In an instance where an employer decided to discharge a worker whose job…