Category: Publications

Can your employer retaliate against you for speaking out about a matter of public concern? No. If your employer does so, then it will be liable under either your State’s relevant whistleblower statute or the First Amendment of the U.S. Constitution. This pamphlet discusses liability under the First Amendment, which applies only to government-run employers.

In order to successfully sue your employer under the First Amendment, you must prove two elements: (1) that you spoke out about a matter of “public concern” and (2) that you were fired, demoted, or otherwise punished for doing so.

What is a matter of “public concern?” It is any matter of political, social, or other concern to the “community.” This last word is important. Throughout your career, you may find yourself speaking out about a matter that concerns only you, such as your work hours, your responsibilities, and your boss. None of these matters, however, concern the “community.” In such instances you will not be protected by the First Amendment.

In Rafiy v. Nassau County Medical Center (SDNY 2002), two doctors sued their employer for terminating them after they had filed several complaints against their boss, the director of the hospital’s residency program. The complaints alleged that the director was professionally and morally inept. The doctors believed that such complaints addressed a matter of concern to the community, specifically whether the director was properly managing the hospital and caring for the patients. The Court disagreed, however, and dismissed the case. Looking at the record as a whole, the Court found that the doctors were really in a “personal dispute” with the director, or in other words, that they were really just “out to get” the director. According to the Court, they were not crusading for the “community.”

Flynn v. NYC Board of Education (SDNY 2002) is an example of a more successful First Amendment case. There, a teacher sued his school for terminating him after he spoke out at several teacher and parent meetings about the teaching inadequacies at the school. The school argued, like the hospital did in Rafiy, that the teacher was really in a “personal dispute” with his boss, the school. The teacher, on the other hand, argued that he was not in a personal dispute but was rather speaking out about a matter that concerned the community – whether the school was properly teaching its children. The Court agreed with the teacher and allowed the case to go to trial.

As the Rafiy and Flynn cases show, if you’re going to speak out against your government-run employer, and expect to take some heat for doing so, then make sure that you are discussing a topic that’s not about you, but about the community. A good lawyer can help you through the process.

By Cynthia Devasia, Esq.   

Many State and Local government jobs are part of the competitive class of the Civil Service and can only be filled by candidates who succeed on civil service examinations.  In 1883, New York became the first state to establish a Civil Service system. As mandated by the state constitution, this system was created to make sure that government jobs were given to individuals based on their “merit” and “fitness” for a position, rather than based on who they know. Thus, New York State and its local governments administer open, competitive examinations designed to find the most qualified applicants for competitive class civil service positions.  Competitive examinations are also administered for purposes of promotions as well. Positions in other civil service classifications, such as the non-competitive, exempt and labor class, do not require competitive examinations.

Over the years, there has been some controversy in the administration of the Civil Service system. Legal challenges to appointments or promotions have been brought over improper test administration and grading, and discrimination grounds. One of the biggest issues concerns the Civil Service Law provision known as the “rule of three” or “one in three” rule (“One in Three Rule”).  Civil Service Law Section 61 allows public employers to choose individuals for appointment or promotion from the top three scores from an Eligible List. An Eligible Lists is the list of candidates who have passed civil service examinations, identified in order by their test score and from which State and Local agencies will hire or promote employees. The Civil Service uses a scoring methodology that first calculates a raw score (i.e. the number of questions correctly answered by a candidate), and then creates a band scoring table which groups the raw scores within certain ranges in the same band. As a result, all eligible individuals falling within a particular scoring band will tie for the same rank. In promotional examinations, typically, seniority credits will be applied to the raw score before a band score is applied. Veteran’s credits are also added in open-competitive and promotional exams after the score band is applied.

The rationale of the One in Three Rule is to allow employers to consider factors other than test scores when making appointment and promotions. However,  many argue that the One in Three Rule actually undermines the fairness of the Civil Service system. As a result of score banding, often an employer is given a large number of people, not just the three top individual scorers, to choose from. Some say that the Rule allows for abuse by an employer who is given too much discretion and can pass over the highest scoring candidate in favor of someone who scored lower. In the case of promotional exams, the Rule has been described as encouraging an employer to pick favorites amongst top scorers. Anyone making a civil service challenge to a missed appointment or promotion based on a competitive exam, should also keep the One in Three Rule in mind. Because the public employer is granted the discretion to choose among the top three scores, even where a legal violation is found a court, generally speaking, many only order an employer to reconsider a candidate for a position. In other words, the One in Three Rule can restrict a court’s ability to directly appoint or promote someone and it is only under rare circumstances that a Court may do so.

If you believe you have been improperly passed over for a civil service appointment or promotion, please contact Isaacs, Devasia, Castro & Wien LLP to determine whether rights have been violated.

Cynthia Devasia, Esq. is an Associate in the Labor and Employment division at Isaacs, Devasia, Castro & Wien LLP. For more information on this topic you can contact her at 917.551.1352 or at cdevasia@idcwlaw.com.

What conduct rises to the level of sexual harassment? We get this question a lot and often answer the same way: it depends. For example, some callers ask whether rubbing a person’s shoulder is sexual harassment. Others ask whether an inappropriate joke is sexual harassment. Still others ask whether propositioning another is sexual harassment. For all of these questions, we answer that it depends.

Under federal law, sexual harassment is defined as “severe” or “pervasive” conduct that creates a “hostile” work environment. Based on this definition, we must first look at whether the conduct is “severe” or “pervasive,” and then whether the conduct created a “hostile” environment.

Whether conduct is “severe” depends on whether the average person would consider the conduct sufficiently “severe” based on current standards of behavior. Likewise, whether conduct is “pervasive” depends on whether the average person would consider the conduct to have “gone on for too long” based on the same societal standards. Thus, a single sexual joke most likely would not be sexual harassment because today’s standards of behavior dictate that we tolerate an occasional joke. Similarly, a slight brush of someone’s hand most likely would not be sexual harassment. Same with a single love note, or phone call, or lustful glance.

On the flip side, conduct such as forcible touching, a series of unwanted love letters, or a series of offensive jokes may amount to sexual harassment. For example, in Fitzgerald v. Ford Marrin Esposito Witmeyer & Gleser (SDNY 2001), a female attorney brought suit against her law firm for sexual harassment. The attorney claimed that the law firm’s male associates often talked about sex, exchanged sex jokes, called her vulgar epithets, such as “dyke” and “slut,” and “cat called” her as she walked by. The jury found this behavior to be sufficiently severe and pervasive against the backdrop of today’s standards of behavior and awarded the female attorney $80,000 in damages.

Of course the jury would not have awarded the female attorney a dime if they had thought she had tolerated the conduct, i.e., not found the conduct “hostile,” which is the second factor we must take into consideration. In other words, if the attorney had consented to the conduct, no matter how “severe” or “pervasive” the conduct, there would not have been any sexual harassment. Thus, for example, if there was evidence that the female attorney joined the male associates in their discussions about sex, or exchanged sex jokes herself, then the jury may not have found for her. While the jury may have still considered the conduct “severe” and “pervasive,” they would not have considered the female attorney to have perceived it as “hostile.”

If you feel you have been sexually harassed, call an attorney right away. A good attorney will be able to determine whether the conduct rises to the level of proscribed sexual harassment and whether you may be able to initiate a lawsuit against your harassers.