Governor Cuomo will propose legislation to make Juneteenth an official state holiday beginning in 2021

Gov. Andrew M. Cuomo signed an executive order on Wednesday, June 18, 2020,  declaring Juneteenth — a day commemorating the end of slavery in the United States — a holiday for employees of the State as the employer.

The holiday, also known as Freedom Day, falls annually on June 19, the same day in 1865 that a Union general arrived in Galveston, Texas, and informed enslaved African Americans that the Civil War had ended and they had been freed – more than two years after President Abraham Lincoln had signed the Emancipation Proclamation.

The Governor's executive order* states that "This observance is a reminder of the hardships and losses suffered by African Americans in their struggle to attain freedom, and we pay tribute to the memory of those who made the ultimate sacrifice in this quest. ... It is fitting that all New Yorkers join to commemorate such an important day in our nation’s history, as we take this opportunity to reflect upon and rejoice in the freedom and civil rights that we all share as Americans."

State officers and employees are being given a paid day off on Friday, June 20, 2020. Anyone required to work on this day will accrue one day of compensatory time credit.

Governor Cuomo also announce that he will propose legislation to codify the executive order and make Juneteenth an official state holiday beginning in 2021. A bill to do so was introduced earlier this month by Member of the State Assembly Alicia L. Hyndman. Currently, the holiday is a "day of commemoration" in New York.

* The Executive Order is posted on the Internet at:

https://www.governor.ny.gov/news/no-204-declaring-juneteenth-holiday-new-york-state-employees

Court finds employer's reasons for rejecting employee's application for short term disability benefits disingenuous

The Advocates for Justice Chartered Attorneys filed a CPLR Article 78 petition on behalf of a retired employee [Claimant] of the New York City Transit Authority [Authority] who had filed an application for "short term disability benefits" under the Authority's short term disability policy after Claimant's application for workers's compensation benefits was denied.

A Workers' Compensation Board Administrative Law Judge [ALJ] found that Claimant suffered from a psychiatric injury, including post-traumatic stress disorder, but determined that there was insufficient evidence that Claimant had experienced "stress at work greater than the usual irritations to which all workers in similar employment are normally subjected." The Workers' Compensation Board affirmed the ALJ's findings and decision.

The Authority advised Claimant that his application for short term disability benefits was approve by Occupational Health Services based on its finding that Claimant suffered from a qualifying medical condition. This finding, however, "did not determine if Claimant  was eligible for short term disability benefits." 

Ultimately the Authority orally advised Claimant's counsel that a final determination had been made that Claimant was not eligible for short term disability benefits. This decision was subsequently confirmed in a letter to counsel in which the Authority explained that Claimant "was not eligible since managers/non-represented employees are not permitted to use sick leave benefits for absence due to claimed injury on duty and exhaustion of sick leave is a prerequisite for short term disability benefits."

Supreme Court found that Claimant had commenced this proceeding within the applicable statute of limitations* but dismissed Claimant's petition on the basis of the Authority's representation that its short term disability policy rendered "workers who applied for Workers' Compensation benefits ineligible for short term disability benefits." Claimant appealed the Supreme Court's ruling arguing that the denial of his short term disability application on this basis was arbitrary and capricious.

The Appellate Division agreed, finding the Authority's denial of Claimant's short term disability benefits claim was arbitrary, capricious and irrational for a number of reasons, including:

1. Authority never notified Claimant that it was denying his claim because he had previously applied for Workers' Compensation benefits.** 

2. Nothing in the Authority's Employee Benefit Summary, its short term disability policy, or its letter confirming that Claimant's short term disability claim had been denied states that employees are barred from seeking short term disability benefits if they have previously applied for Workers' Compensation, places the rationality of the Authority's determination into question.

3. There is no risk of "double dipping," which is the sole rationale the Authority gave for interpreting its short term disability policy to bar an employee who has applied for Workers' Compensation from applying for short term disability as Claimant applied for short term disability benefits after his Workers' Compensation claim had been denied.

The Appellate Division opined that the Authority's position with respect to Workers' Compensation was disingenuous as it was inconsistent with its position regarding what the disability policy covers. If the Authority claims that the policy only covers non-work-related illnesses such as cancer or a heart attack, then it would have had no reason to be concerned about "double dipping," as Workers' Compensation benefits are provided only in the event a claimant has suffered a work-related injury or disease. 

The court said that the Authority's was similarly disingenuous to argue that Claimant was not eligible under the disability policy because he did not exhaust his sick leave as the Authority's letter confirming the denial of Claimant's short term disability application indicated that Claimant was "not permitted to use sick leave benefits for absence due to claimed injury on duty and exhaustion of sick leave is a prerequisite for short term disability benefits." The court observed that had Claimant been approved for Worker's Compensation, the Authority's rationale might hold but once Claimant was denied those benefits no rational basis for denying petitioner his sick time could be advanced.

The Appellate Division then remanded the matter to the Authority "for calculation of Claimant's short term disability benefits after deduction of Claimant's sick leave credit."

* In McLaughlin v Saga Corp., 242 A.D.2d 393, the Appellate Division held that if the party is able to submit "proof of mailing within the limitations period," the application or appeal is timely.

** The Appellate Division's decision in this action states that the Authority "had not notified [Claimant] of this alleged prohibition and nothing in the Authority's Employee Benefit Summary or short term disability policy states that employees who have applied for Workers' Compensation benefits are not eligible for short term disability" benefits.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01694.htm

Individual found guilty of anonymously submitting false report alleging another employee's had engaged in misconduct terminated

A police detective [Petitioner] was served with disciplinary charges alleging he had anonymously filed a false allegation of misconduct targeting one of his supervisors with the police department's [Department] Internal Affairs Bureau [IAB]. Petitioner subsequently admitted the allegations set out in the charges and pleaded guilty to two instances of "conduct prejudicial to the good order of the department" and then "testified under oath before the Assistant Deputy Commissioner [ADC] in an effort to mitigate the penalty to be imposed.

Following a disciplinary hearing, the ADC found that Petitioner's "misconduct here constitutes extremely serious misconduct" and recommended the Police Commissioner dismiss Petitioner from his position. The Commissioner adopted the ADC's findings and recommendation and dismissed Petitioner from the Department.

Petitioner filed a CPLR Article 78 appeal challenging the penalty imposed by the Commissioner. Supreme Court granted his petition and vacated penalty of termination from the Department and remanded the matter for the imposition of a less severe penalty. The Department appealed and the Appellate Division unanimously reversed the Supreme Court's decision, on the law, and dismissed Petitioner's Article 78 action.

The Appellate Division opined that Supreme Court "erred in granting the petition to the extent of remanding the matter for the imposition of a lesser penalty." Citing Kelly v Safir , 96 NY2d 32, the court said that in matters of police discipline  "great leeway must be accorded to the Commissioner's determinations concerning the appropriate punishment, for it is the Commissioner, not the courts, who is accountable to the public for the integrity of the Department."

The decision notes that Petitioner "lied to IAB twice, acted with premeditation, and sought to have the [supervisor] that he reported to IAB face negative consequences as a result." As the ADC noted in the decision issued following Petitioner's disciplinary hearing, Petitioner's untruths:

[1] had an adverse impact on the supervisor, who had to defend himself against the false claim; and

[2] required the Department and IAB to spend significant time investigating Petitioner's false complaint.

The Appellate Division said that in Kelly v Safir, 96 NY2d 32, the Court of Appeals, quoting from Pell v Board of Education of Union Free School District. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, held that in adjudicating disciplinary matters the penalty imposed by the appointing authority "must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." 

Considering the record, the Appellate Division concluded that the Commissioner's imposing the penalty of termination was not so disproportionate to the offenses committed by Petitioner as to shock one's sense of fairness and the vacated the Supreme Court's order and dismissed the Article 78 petition "in its entirety."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01716.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

 Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Syllabus for the United States Supreme Court's ruling in Bostock v Clayton County, Georgia addressing unlawful discrimination targeting gay and transgender employees

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, BOSTOCK v. CLAYTON COUNTY, GEORGIA, at the time the opinion is issued. The syllabus not part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. 

BOSTOCK v. CLAYTON COUNTY, GEORGIA 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17–1618. 

Argued October 8, 2019—Decided June 15, 2020

Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). 

In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender.

Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. and G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. 

The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. 

The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment resolves these cases.*

The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. 

In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank and Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267.  

These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. 

Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Three leading precedents confirm what the statute’s plain terms suggest. 

In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. Cite as: 590 U. S. ____ (2020).  And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex. The lessons these cases hold are instructive here. 

First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. 

Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. 

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. 

The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is.

The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. 

Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. 

The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. 

Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. 

But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. 

Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. 

Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. 

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.

* Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18– 107, R. G. and G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit. 

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. 

ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

The Syllabus and the Decision is posted on the Internet at:
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf