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John Gaal's Ethics Corner
February 09, 2004
Your ethics questions answered by the expert.
Citigroup Executive Properly Denied Benefits
February 09, 2004
Citigroup properly exercised its discretion when it denied a terminated executive the right to exercise his unvested shares of stock, cancelled his unvested stock options, and denied benefits to him under its severance, deferred compensation, and supplemental executive retirement plans, rules Judge Naomi Buckwald in granting Citigroup's motion for summary judgment. <i>Welland v. Citigroup, Inc.</i>, 2003 WL 22973574 (S.D.N.Y. 12/17/03)
Update: Danger to Unsuccessful Employment Discrimination Plaintiffs
February 09, 2004
The September 2003 issue of <i>New York Employment Law &amp; Practice</i> published my article entitled "Be Wary of Rule 54(d)'s Costs Provision," in which I discussed the award of costs to prevailing defendant employers in employment law cases. I observed that courts have often assessed substantial costs awards against even low-income plaintiffs whose employment law cases are dismissed or lost at trial, although there are arguments available to plaintiffs' counsel in some situations that can be used to minimize or eliminate such awards. A January 2004 decision on a costs motion by Eastern District of New York Judge Arthur D. Spatt reinforces several of the points made in the September article, and further dramatizes the dangers of potential costs awards to plaintiffs with marginal cases.
Workplace Rights of Domestic Violence Victims
February 09, 2004
The New York City Human Rights Law was amended to require employers to provide reasonable accommodation to employees and applicants who are victims of domestic violence, sex offenses or stalking, and to prevent employers from discriminating against them because of their status as victims. NYC Adm. Code '' 8-101, 8-102, 8-107 and 8-107.1 According to Mayor Bloomberg, who signed the amendment into law on Dec. 22, 2003, these people are often unable to separate their status as victims from their jobs due to outside harassment or sexual assault impacting them at their workplace. Many times, victims of these crimes are late or miss several days of work, which can eventually lead to the loss of a job. Mayor Bloomberg believes that providing "reasonable accommodation" in the workplace will enable victims to remain productive and self-reliant, as well as help employers to retain their employees, minimize on-the-job disruptions and increase productivity.
National Litigation Hotline
February 09, 2004
National rulings of importance to you and your practice.
ADA Denial of Rehire
February 09, 2004
Recently, a unanimous, seven-member, United States Supreme Court held that the only relevant question on summary judgment in an action alleging disparate treatment under the American with Disabilities Act (ADA) was whether there was sufficient evidence from which a jury could conclude that an employer made its decision based on an employee's status as disabled, notwithstanding the employer's proffered explanation. <i>Raytheon Company v. Hernandez</i>, 504 US __ , 124 S.Ct. 513 (2003). The Court further held that the employer's unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules was a legitimate, non-discriminatory reason under the ADA. This case briefing discusses the Court's opinion in <i>Raytheon</i>, and the decision's implications for employers.
Recent Developments from Around the States
February 09, 2004
Recent rulings of importance to you and your practice.
Lump Sum Damages: What Happens to Employers?
February 09, 2004
More often than not, it is the defendant who brings the post-trial motions that follow a jury finding that an employer is liable for employment discrimination. Those motions normally seek, among other things, a new trial, a judicial determination that the evidence did not support the verdict, and/or a remittitur of the damages awarded. Less common are substantive motions brought by the victorious plaintiff, such as a motion for additur, where a damages award larger than that assessed by the jury is sought. That may soon change, as victims of discrimination, bolstered by a new trial court decision from New Jersey, may seek to hold their employer responsible for any increased taxes that he or she may have to pay as a result of winning at trial. Such a tactic has the potential to increase greatly -- perhaps into six figures -- the amount of damages for which the employer found to have discriminated may be liable.
Does Constructive Discharge Bar an Employer's Defense?
February 09, 2004
In last month's <i>Employment Law Strategist</i>, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called <i>Ellerth/Faragher</i> affirmative defense in constructive discharge cases. We began with an analysis of <i>Suders v. Easton</i>, 325 F.3d 432 (3d Cir. 2003), in which the Third Circuit held that holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in <i>Ellerth</i> and <i>Faragher</i>. Granting <i>certiorari</i> to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.
Practice Tip
February 09, 2004
Multiple regression analysis, a statistical tool often used in litigation as evidence in employment-discrimination suits, can also be useful in product liability matters to show probable causation and also to show the probable range of economic damages.

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