Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, January 3, 2017

Sexual Harassment of Men By Women!

Sexual Harassment of Men, by Woman is on the rise. The January 3, 2016 Detroit Free Press, outlines some statistics, here. As the article states:

                            According to the U.S. Equal Employment Opportunity Commission, the percentage of sexual harassment                             complaints filed by men has more than doubled over the last 25 years, from 8% in 1990 to 17% in 2015.  That                             year, 1,165 men complained about sexual harassment, compared to 5,656 women.

                            Although the number of men filing claims has leveled off over the past five years, an average of 1,200 men claim                              sexual  harassment every year in American workplaces. Legal experts believe the number could be higher                             because there's still a stigma attached to men complaining about women's sexual advances.

                            "People are surprised that men would complain about this, and that could be a mistake," said Ernest Haffner, an                             EEOC attorney  in Washington, D.C., who tracks harassment in the workplace. "Employers should take                             harassment seriously, regardless of whether it's a man or a woman. They all need to be treated the same."

The law, of course, treats sexual harassment of men the same as for woman. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baskerville v. Culligan Int'l, 50 F. 3d 428 (7th Cir. 1995).


Mitchell Rubinstein


January 3, 2017 in Employment Discrimination, Interesting Cases, News | Permalink | Comments (2)

Wednesday, October 12, 2016

Supremes Grant Cert In Case That Has Implications For Summary Judgement Motions In Discrim Cases

The Supremes recently granted cert in  Zigler v. Turkmen, which involves pleading discriminatory intent. Though not an employment law case, intent and pleading issues are an important issue in employment discrimination cases-particularly in the summary judgement stage after Twombly and Iqbal. From Scotusblog, via Workplace Prof Blog, the issue in the case includes:

"whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims."

Mitchell H. Rubinstein

Hat Tip:   Workplace Prof Blog

October 12, 2016 in Discrimination Law, Employment Discrimination, Employment Law, Supreme Court | Permalink | Comments (1)

Tuesday, June 7, 2016

Major 2d Circuit Decision Discussing Whether Hispanic Ancestry Is A Race Under Title VII and 1981

Village of Freeport v. Barrella, ____F.3d____(2d Cir. 2016), is a major case discussing whether Hispanic ancestry is a race under Title VII or 1981. As the court explained:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII. Accordingly, we reject defendants’ argument that an employer who promotes a white Hispanic candidate over a white non‐Hispanic candidate cannot have engaged in racial discrimination, and we AFFIRM the judgment of the District Court insofar as it denied defendants’ motions for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure

Law review commentary on this important topic would be most welcomed.

Mitchell H. Rubinstein

June 7, 2016 in Discrimination Law, Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, October 6, 2015

Mandatory Retirement For Lawyers

An interesting Oct. 5, 2015 Findlaw article, here   raises the question how old to too old to practice law. 

As the article notes, many law firms have a mandatory retirement age of 65. Such mandatory retirement policies would expressly violate the ADEA unless the ADEA does not apply. As the article alludes to, the legal question is whether such partners are employees. If they are, the ADEA applies. If they are not, the ADEA does not apply. Though there has been litigation on this issue, it is not finally resolved. 

As the article notes, mandatory retirement of lawyers appears ridiculous when Supreme Court Justices routinely serve into their 80's.

Mitchell H. Rubinstein 

October 6, 2015 in Employment Discrimination, Lawyers | Permalink | Comments (0)

Tuesday, July 1, 2014

Employee in Process of Getting Divorce Protected From Marital Status Discrimination

In a major ruling, the NJ Appellate Division held that an employee who was going through a divorce stated a cause of action for marital status discrimination. Smith v. Millville, (June 27, 2014). As the court explained:

        "Marital status" necessarily embraces stages preliminary to
        marriage — one's engagement to be married. The term also covers
        stages preliminary to marital dissolution — separation and
        involvement in divorce proceedings. The apparent purpose of the
        ban on marital-status-based discrimination is to shield persons
        from an employer's interference in one of the most personal
        decisions an individual makes — whether to marry, and to remain

This is an important issue. Law review commentary on this most important topic would be most welcome.

Mitchell H. Rubinstein

July 1, 2014 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Monday, April 21, 2014

Boys Scouts Revokes Charter For Refusing To Fire Gay Scout Leader

Sometimes you cannnot make this stuff up. The NY Times reports that the Boy Scouts revoked the charter of an affiliate who refused the fire a Scout leader because he was gay. As the article states:

The Boy Scouts of America, whichvoted last year to allow gay scouts but not openly gay scout leaders, has revoked the charter of a church-sponsored troop here for refusing to fire its adult gay scoutmaster.

The decision, which one gay rights organization said was a first since the policy change last year, essentially bars the Rainier Beach United Methodist Church and its 15 scouts from using logos, uniforms or names associated with the Boy Scouts as long as the scoutmaster and Eagle Scout Geoffrey McGrath, 49, remains in charge.

Mitchell Rubinstein

April 21, 2014 in Discrimination Law, Employment Discrimination | Permalink | Comments (0)

Sunday, December 15, 2013

Pregnant Worker's Severe Morning Sickness Not Disability, but Retaliation Claim Survives

Plaintiff failed to prove disability discrimination because she didn't show that her pregnancy and morning sickness constituted a “disability” under federal or state law, a federal judge ruledNov. 22 (Wonasue v. Univ. of Md. Alumni Ass'n, 2013 BL 326278, D. Md., No. 8:11-cv-03657-DKC, 11/22/13).
The court reasoned that pregnancy alone isn't a disability under the Americans with Disabilities Act, the Rehabilitation Act or the Maryland Employment Discrimination Law. It added that pregnancy-based medical complications may rise to the level of disability but felt contrained by 4th Circuit precedent which found that a similar plaintiff did not establish that this condition  substantially limited a worker in the performance of a major life activity, as required to prove a disability.
But she may go forward with a retaliation claim under the Rehabilitation Act, the court decided.
Denying an employee experiencing pregnancy-related complications permission to work from home may constitute an adverse employment action for purposes of federal disability rights law.

December 15, 2013 in Employment Discrimination | Permalink | Comments (0)

Sunday, November 24, 2013

Title VII Claim Survives Where Plaintiff Called a Skinny Bitch

A school bus driver who allegedly was fired for complaining that co-workers spread false rumors that she engaged in extramarital affairs and called her names such as “skinny bitch” and “whore” can pursue a retaliation claim under Title VII of the 1964 Civil Rights Act. Billings v. Sw. Allen Cnty. Sch., ___F.Supp. 2d ___(N.D. Ind. 10-17-13).

November 24, 2013 in Employment Discrimination | Permalink | Comments (1)

Sunday, September 29, 2013

Discrimination and Criminal Background Checks

EEOC v Freeman, ____F.Supp.2d ____(D. Maryland August 9, 2013) is an important case. In a well written decision, the court rejects the EEOC claim that an employer violated Title VII by refusing to hire a minority applicant after a criminal background check was performed. 

This case contains an excellent review of disparate impact and was very critical of the statistical experts retained by the EEOC.

Law review commentary on this important issue would be most welcome.

Mitchell H. Rubinstein

September 29, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Monday, September 2, 2013

Victimless Sexual Harassment

Professor Charles Sullivan (Seton Hall) wrote an interesting blog posting on victimless sexual harassment where the harasser degrades woman in general, but not a particular individual. He cites to a NJ Supreme Court decision which found this conduct actionable. 

Law review commentary would be most welcome.

Mitchell H. Rubinstein

September 2, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Wednesday, August 14, 2013

Association Discrimination Against The Disabled

A medical supply company employee in Massachusetts fired for alleged time fraud while his wife was receiving inpatient treatment for a brain tumor may pursue a state law civil rights claim based on alleged bias for his association with a disabled family member, the Massachusetts Supreme Judicial Court unanimously rules (Flagg v. AliMed, Inc., Mass., No. SJC-11182, 7/19/13).

August 14, 2013 in Employment Discrimination | Permalink | Comments (0)

Sunday, August 11, 2013

7th Cir. Holds Claim For Same Sex Harassment Stated


A black male former concrete yard worker in Illinois provided sufficient notice of a male co-worker's alleged same-sex harassment by complaining to employees who had higher authority than he did but lacked the power to take tangible employment actions against other workers, the Seventh Circuitholds (Lambert v. Peri Formworks Sys., Inc., 7th Cir., No. 12-2502, 7/24/13).

August 11, 2013 in Employment Discrimination | Permalink | Comments (0)

Tuesday, July 30, 2013

Employee Fired For Adding Him To Benefits Claim Lacks Discrimination Claim

An unmarried, heterosexual female employee of who was fired because she listed her boyfriend as her "spouse" and "same-sex partner" on her benefit enrollment forms lacks marital status and sexual orientation discrimination claims under state law. Hanson v. Mental Health Res. Inc.,____F.Supp. 2d___( D. Minn., No. 12-00540, 6/3/13).

Mitchell H. Rubinstein

July 30, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Sunday, June 30, 2013

Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

 The Fifth Circuit held unanimously that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  Congress passed the Pregnancy Discrimination Act to protect working women against discrimination on the basis of pregnancy, childbirth or a related medical condition. A copy of a May 31, 2013 EEOC Press Release describing this case is available here.

Law review commentary on this issue would be most welcome.

Mitchell H. Rubinstein

June 30, 2013 in Employment Discrimination | Permalink | Comments (0)

Tuesday, June 25, 2013

EEOC Updates Guidance Documents on Disablity Discrimination

On May 15, 2013, the Equal Employment Opportunity Commission (EEOC) issued updates to four 
informal  “Question and Answer” guidance documents relating to protections against disability 
discrimination under the Americans with Disabilities Act (ADA). Each of the guidance documents, 
which are available on the EEOC’s website, focuses on a different condition (cancer, diabetes, 
epilepsy and intellectual disabilities) and, according  to the EEOC, reflect changes made 
by the ADA Amendments Act .
A copy of the revised guidance documents can be found here. An EEOC May 15, 2013 Press Release 
describing these changes can be found here.
Mitchell H. Rubinstein

June 25, 2013 in Employment Discrimination | Permalink | Comments (0)

Sunday, June 23, 2013

Hostile Environment Cases Under Title VII, 1981 and NY Human Rights Law Are Subject To Same Standards

Sanchez-Vazquez v. Rochester City School District, ___F.3d___ (2d Cir. May 14, 2013), is an important case because the 2d Circuit holds that hostile work environment cases under Title VII, 42 U.S.C. Sec. 1981 and the NYS Human Rights Law are all analyzed under the same standards. The case also demonstrates that it is difficult to make out a cause of action if only a few offensive comments were made over a period of years.

Mitchell H. Rubinstein

June 23, 2013 in Employment Discrimination, Employment Law | Permalink | Comments (0)

Tuesday, June 4, 2013

Fifth Circuit: Expressing Mom Protected from Sex Discrimination

In a published opinion, the a Fifth Circuit Court of Appeals panel last week, in a sex discrimination lawsuit brought by the EEOC, reversed summary judgment for an employer that allegedly discharged an employee for expressing milk while at work.  The lower court earlier found, as a matter of law, that discharging a lactating female employee for expressing milk does not constitute sex discrimination.  The Fifth Circuit held that discriminating against a woman who is lactating or expressing breast milk violates federal sex discrimination laws.

The opinion is EEOC v. Houston Funding II., Ltd., No. 12-20220 (5th Cir., May 30, 2013).  The opinion, by Judge Grady Jolly, was unanamous, with Judge Edith Jones concurring.  The Houston Chronicle's story on the case adds this interesting tid-bit.

"You would think there would be reported case law on this," said Jim Sacher, regional attorney for the Equal Employment Opportunity Commission in Houston, which is handling the case and its appeal on behalf of Venters.

But this is the first definitive decision in the country that firing someone because of lactation is an example of sex discrimination, Sacher said.

Craig Estlinbaum

June 4, 2013 in Discrimination Law, Employment Discrimination, Federal Law, Interesting Cases | Permalink | Comments (0)

Monday, June 3, 2013

New York City Statute Establishes Unemployed As A Protected Group

Later this month, a NYC Local Law goes into effective which establishes unemploymed as a protected group. An excellent, summary of this new law is Geoffrey Mort, Implications of Statute Establishing Unemployed As A Protected Group, NYLJ (May 20, 2013). As the article explains:

When the New York City Council in March voted to override Mayor Michael Bloomberg's veto and enacted a law prohibiting employment discrimination against unemployed persons, it created the first new protected group in New York since the state Sexual Orientation Non-Discrimination Act was passed some years ago. The new act, with several exceptions discussed below, makes it unlawful for employers with four or more employees to discriminate with respect to hiring, compensation or the terms and conditions of employment against any unemployed person seeking a job or to advertise for a position and require current employment as a qualification. The purpose of the New York City Local Law Prohibiting Discrimination Based on an Individual's Unemployment is straightforward: in advocating for its passage, City Council Speaker Christine C. Quinn stated that "[w]e want to do everything we can to help people work" and said that a psychological stigma attached to being unemployed is "completely unfair."


Mitchell H. Rubinstein

June 3, 2013 in Employment Discrimination, New York Law | Permalink | Comments (0)

Tuesday, April 30, 2013

Unsucessful Law Professor Job Applicant Loses Discrimination Case

(Dobkin v. Univ. of Iowa,  Iowa Ct. App.  No. 2-1096/12-1012,  2/13/13) is an interesting case. The court held that the lower court  properly denied admission of an article from a law journal newspaper written by a witness for the age-protected job applicant who was denied an employment offer at the law school, despite contentions that opinions contained in the article were based on empirical evidence and that the law school “opened [the] door” for the article's admission, where the article was inadmissible hearsay with no applicable exception. 

One of these days law schools are going to start to get hit for institutional age discrimination.

Mitchell H. Rubinstein

April 30, 2013 in Employment Discrimination, Law Professors | Permalink | Comments (0)

Surprise, Surprise A Boss Who Exposes Himself Faces Sexual Harassment

Sometimes you just cannot make these cases up. An emergency medical technician claiming her supervisor exposed his testicles after she told him he "didn't have any balls" can proceed with a sexual harassment claim against her former boss under California law. Angel v. Am. Med. Response West, ___F. Supp. 2d____(E.D. Cal. 4/25/13).

A supervisor allegedly unzipped his pants and pulled out his testicles during an argument with plaintiff at work. The court concluded that the single incident was sufficiently severe to support the action.

MItchell H. Rubinstein

April 30, 2013 in Employment Discrimination | Permalink | Comments (1)