NYC Employment, Civil Rights and Criminal Defense Law Blog

Monday, June 18, 2012

Free Speech Rights for Public Employees?

The United States Supreme Court has made it very difficult for public employees to get relief when they speak out about their jobs and are then retaliated against because of what they said.  In the case of Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that to have an actionable claim, the employee must be able to show not just that their speech involved a matter of public concern, but also that their speech was not made pursuant to their official job duties.  While public employees often speak out on matters of public concern, they typically do so with respect to their official job duties – matters like how they have been directed or misdirected to perform their jobs in their honest belief that they will accomplish positive change by voicing their concerns.  Unfortunately, while common sense may make one think such speech should be protected; it often is not. 


Recently, we had another illustration of this principle in the case of Matthews v. City of New York, 12 CV 1354 (S.D.N.Y. 2012).  In Matthews, a police officer claimed that commanders in his precinct used a quota system that required officers to make a minimum numbers of arrests, issue a minimum number of summonses and engage in a minimum number of stop-and-frisks - conduct he alleged resulted in wrongful police action.  The officer claimed that soon after he complained about this practice, his supervisors retaliated against him by, among other things, harassing him with undesirable job assignments, issuing him negative performance evaluations, and denying him overtime.  He brought suit, alleging a violation of his First Amendment rights. 


The Court dismissed the officer’s suit, following the Supreme Court’s guidance in Garcetti, finding that his speech was “pursuant to his job duties” or “employee speech” and not protected “private citizen speech”. 


The lesson here is that public employees must be careful when speaking out about their jobs, even when they are well motivated and their concerns are legitimate because, if retaliation follows, they may find themselves without an effective avenue of relief. 


Friday, May 4, 2012

EEOC Issues Guidance on Use of Arrest and Conviction Records in Employment Decisions.

Many employers conduct criminal background checks before deciding whether to hire someone and this can be a tremendous problem for individuals who may have had an arrest or conviction in their past – even their distant past.  Last week, the U.S. Equal Employment Opportunity Commission issued new Enforcement Guidance on the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 that may be of help.  The EEOC explained that while Title VII, the federal law that prohibits discrimination based on race, color, national origin, religion or sex does not prohibit an employer from requiring employees and job applicants to provide information about past arrests and convictions, use of criminal records as a “blanket exclusion” could violate the law because of the disparate impact on individuals who are African-American or Hispanic.  Moreover, the new Guidance calls upon employers to conduct individual assessments that look at reasonable factors, such as the nature and gravity of the criminal offense, how long ago the offense occurred and the nature of the job at issue.  The new Guidance makes clear that treating applicants with similar records differently because of their race or national origin will constitute a violation of Title VII.  Finally, the EEOC reinforced the important distinction between arrests and convictions, since an arrest does not establish or serve as proof that any criminal conduct occurred.  Issuance of the new EEOC Guidance is surely a positive step.  The difficulty is that most employers are unaware that such Guidance exists and may unfairly bar individuals from employment because of a prior arrest or conviction or treat individuals with similar records differently based on their race or national origin.  If you think this may have occurred, it is important to reach out promptly to an attorney to discuss the possibility of taking legal action.



Monday, April 30, 2012

EEOC Declares Discrimination Based on Transgender Status Actionable as Sex Discrimination.

The U.S. Equal Employment Opportunity Commission has ruled in a case brought by an applicant for federal employment with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives that complaints based on gender identity, sex change or transgender status are actionable forms of sex discrimination under Title VII of the Civil Rights Act of 1964 and should be processed as such under the federal EEO regulations. 


The complainant in the case of Macy v. Holder, EEOC Appeal No. 0120120821, alleged that she was not hired after she made her status as a transgender individual known.  The EEOC issued a decision in line with its responsibilities to enforce federal EEO laws, to lead “the Federal government’s efforts to eradicate workplace discrimination,” and to “ensure that uniform standards be implemented defining the nature of employment discrimination”.  The EEOC held unequivocally that “discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition, and may therefore be processed under Part 1614 of EEOC’s federal sector EEO complaints process.”  The EEOC explained that Title VII’s protections “sweep far broader” than discrimination based only on the basis of biological sex and include discrimination based on “the cultural and social aspects associated with masculinity and femininity.”  The EEOC concluded in no uncertain terms that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on …sex,’ and such discrimination therefore violates Title VII.”

To read the full EEOC decision click here



Tuesday, April 3, 2012

United States Supreme Court Allows Strip-Searches for Minor Offenses

The United States Supreme Court issued a decision yesterday in the case of Florence v. County of Burlington that has shocking implications.  The Court ruled 5 to 4 that individuals who have been arrested may be strip-searched when they enter jails, even when they have been arrested for only minor offenses.  The Court held that the Fourth Amendment to the Constitution, which protects individuals from unreasonable searches, does not prohibit strip-searches that a correction facility might find advisable, even in the absence of any reasonable suspicion that the person might be hiding drugs, weapons or other contraband.  This means that, under the United States Supreme Court decision, people may be strip-searched after being arrested for offenses that don’t even rise to the level of “criminal” conduct, such as driving in excess of the speed limit or making an illegal U-turn.  While correctional officers are not required to strip-search everyone who enters a correctional facility after arrest, it leaves the decision to do so entirely in their hands, yielding to them a tremendous amount of discretion and leaving individuals vulnerable to the demeaning humiliation of a strip-search.  This decision is a terrible blow to individual rights under the U.S. Constitution.



Traub & Traub, P.C., a law firm located in New York City, New York, has as its mission the advancement and protection of the rights of the individual in cases involving employment, civil rights, criminal defense and general litigation. The firm handles cases throughout the five boroughs of NYC, as well as Nassau, Suffolk, Westchester, Dutchess and Rockland Counties. In addition to its work in New York, the firm has extensive knowledge and experience in the representation of federal employees in all criminal and employment-related matters and represents federal employees throughout the Northeastern United States.

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