PHILADELPHIA DISCRIMINATION

DEFENSE ATTORNEYS IN
PENNSYLVANIA & NEW JERSEY
Pennsylvania Discrimination Claims: When a Philadelphia
Employment Law Defense Attorney Can Help
The Philadelphia employment law defense attorneys at Sidney L. Gold &
Associates understand how costly and time consuming it can be to defend against
a discrimination claim. When employees feel that they have been refused an
interview or a job, been denied a promotion, or have been terminated from a job
because of their race, sex, age, religion, or disability and they file a discrimination
claim with the Equal Employment Opportunity Commission (EEOC). An employer
has no choice but to provide the best defense against the discrimination
claim possible. Investigation, mediation, and possible litigation can make an
employers defense a very prolonged and expensive venture.
The best way to avoid discrimination claims is to prevent them through ethical
yet cautious employment policies and procedures. Our Pennsylvania and New
Jersey employment defense attorneys inPhiladelphia provide expert
knowledge and experience in all phases of the employment process. Beginning with
the interview stage and moving through the employment relationship and
termination, our team of employment defense attorneys will ensure that your
interests are protected against discrimination claims. When a discrimination
claim is filed against an employer, however, our experienced,
knowledgeable Philadelphia employment defense attorneys are equipped to
provide skilled legal representation in all phases of the litigation. Our New Jersey
employment law attorneys are extremely knowledgeable and experienced with
the New Jersey Law Against Discrimination and have represented countless
employees and employers in employment law and discrimination cases in New
Jersey.

Prevention of Discrimination Claims Proves Best Defense

Under the Civil Rights Act of 1964, it is unlawful for an employer to discriminate
against an individual because of their age, sex, race, religion, or disability.

An

employer with more than 15 employees is responsible to provide equal employment

opportunities to all individuals who meet the criteria for a position in their company.

If an employee feels that they were treated unfairly and file a discrimination
claim, it is up to you to prove that you acted within proper and lawful procedures.
If an employer is in doubt about any policy, action or planned action that might
result in a discrimination claim, it is best to consult with a discrimination
defense attorney, such as one of the PA employment lawyers at Sidney L. Gold
& Associates in Philadelphia. Our highly skilled and knowledgeable New Jersey
employment attorneys will help you consider several factors in the prevention of
discrimination claims:

Policies and Procedures: All executive and administrative employees need

to fully understand your company policies on discrimination, and your procedures
for carrying out your policies. Lower level employees must also have a clear
perspective on the companys policies and procedures on discrimination. These
should be posted throughout the company and readily available to all employees.

Detailed Record Keeping: It is imperative to keep detailed records on an

employees job performance. Lateness, behavioral warnings, work quality,
attendance, and employee reviews can all be used as evidence to dispute
a discrimination claim that goes to mediation or trial. These documents are
essential for the employer to prove that the employees job performance, and not
discrimination, was a key factor in the employers decision making process.

Awareness of Discrimination Laws and Protected Classes: All

employers need to provide sufficient information to their employees on the
current statutes of discrimination laws, and which classes are protected under
the law. Failure by your employee to adhere to the laws when relating to another
employee can result in a tough defense for the employer.

Our NJ Employment Law Attorneys Will Provide an

Aggressive Defense against a Discrimination Claim
Even with the most meticulous prevention strategies in place, employers will
sometimes find themselves defending against a discrimination claim.
Unfortunately for the employer, the burden of proof falls on them to prove that their
actions and decisions were non-discriminatory, and would have been the same
toward any employee in a similar situation. When an employee files
their discrimination claim and it is found to be valid by the EEOC, the case first

goes to a mediator. The Pennsylvania employment defense

attorneys at Sidney L. Gold & Associates have years of experience dealing with
mediators, and can provide you with expert advice and representation during this
phase. Our New Jersey employment lawyers will prepare your records as
evidence, solicit witness testimony if necessary, and advise you throughout the
mediation process. If mediation is unsuccessful, the case would then go to trial, and
again, our NJ employment attorneys would provide you with excellent and
experienced representation.

Defenses in Discrimination Suits

There are several key defenses in employer discrimination suits, including:

Bona Fide Occupational Qualification (BFOQ): This defense is based on

a legitimate limitation on qualification for a job within your company. For
instance, there are mandatory retirement ages for pilots, which limit the jobs
available by age. In a trial, this would be considered a legitimate disqualification
from employment as opposed to an age discrimination claim. Most BFOQs are
related to age or sex limitations because those based on race, religion, or
disability would be a clear case of discrimination of a protected class.

Employee Performance: An employees job performance is a key defense

when fighting adiscrimination claim about wrongful termination from a job
based on discrimination. Detailed employer records on the employees ability to
follow company policies, instances of insubordination, or high absence rates are
vital in proving that the employees termination was not based on discriminatory
reasons. Most successful outcomes against discrimination claims come from this
type of defense.

Failure to Notify Employer: Before filing a discrimination claim with

EEOC, the employee needs to show that they notified the employer of the
situation. The employer must have sufficient notification that the problem
exists, and be given reasonable time to address the situation before a claim can
be investigated. Failure to notify the employer properly can easily result in the
claim being denied.

Failure to Meet Statutory Requirements: If an employee fails to meet

the criteria required, their claim would be invalidated by the EEOC.

In most

cases where this defense has been successful, the employee failed to adhere to
strict deadlines for filing a claim, or the situation does not meet other
requirements, such as the number of employees in a company. If the claim is
denied, the employee has the right to personally sue the employer, but this can
be very costly to the average employee.

Sidney L. Gold & Associates Philadelphia Discrimination

Defense Attorneys in Pennsylvania & New Jersey
If you have had a discrimination claim filed against you or your business
in Pennsylvania or New Jersey, or if you want to work on preventing
discrimination claims, the Philadelphia employment defense
attorneysat Sidney L. Gold & Associates can help you. We will work with you to
establish clearly written policies and procedures. We will help to train your
management on the most current information regardingdiscrimination law and
protected classes; and we will represent you throughout all phases of employment,
termination, mediation, or litigation. Our Philadelphia discrimination defense
attorneys will help prevent, as well as defend against discrimination claims.
With offices conveniently located in Philadelphia, we serve clients
throughout Pennsylvania and New Jersey. Call our office today at 1-215-5691999 or contact us online to discuss how ouremployment defense
attorneys can help you prevent and defend discrimination claims in your
business. Our discrimination defense attorneys are well-equipped to provide
the knowledgeable, experienced legal representation you need for a successful
outcome. Dont hesitate, call our NJ employment law attorneystoday.

Defense Against Claims of Discrimination

Under the state or federal anti-discrimination laws, employment discrimination can be lawful if
you can show both a proper, relevant affirmative defense and that less discriminatory
alternatives are not available. Except where otherwise noted, one or more of the following
affirmative defenses may be appropriate in a situation to justify the employment practice in
question.

Bona Fide Occupational Qualification (BFOQ) as a Discrimination Defense

Business Necessity as a Discrimination Defense

Job-Relatedness as a Discrimination Defense

"Reasonable Factor Other than Age" as an Age Discrimination Defense
Security Regulations as a Discrimination Defense
Nondiscrimination or Affirmative Action Plans as a Discrimination Defense
The Same-Actor Inference Defense
Otherwise Required by Law as a Discrimination Defense

Bona Fide Occupational Qualification (BFOQ)

as a Discrimination Defense
Discrimination based on religion, sex or national origin is not illegal if you can prove that
religion, sex, or national origin is a bona fide occupational qualification reasonably necessary
to the normal operation of the business enterprise. 1 Similarly, it is not unlawful under the ADEA
(age discrimination) to take action based on a BFOQ.2

Business Necessity as a Discrimination

Defense
If you maintain a practice that appears to be neutral, but creates an adverse impact on
protected classes, you must prove that there is an overriding legitimate business purpose. For
example, you may argue that the practice is necessary to the safe and efficient operation of the
business. You must also prove that the challenged practice effectively fulfills the business
purpose it is designed to serve. A practice may not be permissible if an alternative practice
would accomplish the business purpose equally well with a less discriminatory impact. 1

Job-Relatedness as a Discrimination Defense

Any selection criterion or qualification must be a valid predictor of the applicants success at
performing the job in question.1 For example, typing and spelling tests are related to a secretarys
job. However, requiring a drivers license or high school diploma for a labor job would be difficult to
justify.

"Reasonable Factor Other than Age" as an

Age Discrimination Defense

Under the ADEA, a specific defense known as the Reasonable Factor Other than Age (RFOA)
defense is available for disparate impact claims: claims that policies which are neutral on their face
have a substantially greater impact on older workers than younger workers. For instance, the RFOA
defense would apply to neutral tests, such as physical fitness tests, that are used to screen
employees if those tests had a disparate impact on older workers versus younger workers.

Security Regulations as a Discrimination

Defense
Without a showing of discrimination, an employment practice that conforms to applicable
security regulations that have been established by the United States or the State of California is
lawful.

Nondiscrimination or Affirmative Action Plans

as a Discrimination Defense
Absent a showing of discrimination, such an employment practice is lawful which conforms to:
A bona fide affirmative action plan (although some plans may be limited in California)
A nondiscrimination plan pursuant to Labor Code section 14311
An order of a state or federal court or administrative agency of proper jurisdiction

The Same-Actor Inference Defense

The Ninth Circuit Court of Appeals applies what it refers to as the same-actor inference.
This means that when hiring and firing or promoting and firing occurs within a relatively short
time and involves the same decision-maker, the court will infer that no discrimination
occurred. Employers will still be expected to prove a nondiscriminatory reason for the
decision to discharge.1

Otherwise Required by Law as a

Discrimination Defense

Unless discrimination is shown, an

employment practice is lawful if it is required
by state or federal law, or if it is pursuant to an
order of a state or federal court of proper
jurisdiction.1
Lawsuits can pose a considerable threat to businesses, and actions related to
employment practices should be a particular area of concern to business owners.
According to researchers, about 60 percent of employers can expect to be sued by a
prospective, current or former employee.
Its the increasingly litigious nature of our society, says Derek M. Hoch, president
of Leverity Insurance Group. These lawsuits really started to trend upward when the
market plummeted to its lowest point in combination with the state of the economy over
the past four to five years. Desperate times can sometimes lead to desperate actions.
When people couldnt find employment, they filed suits against employers who let them
go during that period of recession.
Smart Business spoke with Hoch about how employment practices liability (EPL)
insurance can help businesses manage risks associated with such lawsuits.
What are the most widely recognized types of employment-related
lawsuits?
Wrongful termination Discharging an employee for invalid reasons.
Discrimination Denial of equal treatment to employees of a

protected class.
Sexual harassment Workers subject to unwelcome sexual advances,
or obscene or offensive remarks.

Lawsuits can also be based on things such as wrongful failure to employ or promote,
wrongful discipline and religious discrimination.
How can EPL insurance protect employers?
More than half of all claims for employment-related liabilities are against businesses
with fewer than 50 employees. Claims can be costly, especially if a case has the ability
to go on for an extended period of time. The average cost of an employment lawsuit

exceeds $270,000. Even if the lawsuit is frivolous, it still takes time away from operating
your business.
An EPL policy will help to pick up these defense costs and any judgments or claims
assessed against your business. In some instances, these cases are settled before they
even go to court; EPL will pay for settlement costs as well.
EPL also covers claims filed with the U.S. Equal Employment Opportunity Commission
(EEOC). In 2012, the EEOC reported 99,947 charges for harassment, and costs of
resolving these claims were $364.6 million.
Why is purchasing third-party EPL insurance so important?
Third-party EPL addresses the coverage gap that leaves employers vulnerable to
discrimination and harassment lawsuits from customers, clients, vendors and suppliers.
Standard EPL policies only cover actions related to employees or prospective
employees, and most general liability policies specifically exclude harassment and
discrimination.
More insurance carriers are including third-party coverage as part of EPL policies
because every company is at risk. Its vital for any business that deals with customers
on a daily basis.
Other than insurance, what approaches can companies take to
protect themselves?
Have a legal professional review your employee handbook to ensure it contains all the
necessary information, including policies covering sexual harassment, discrimination,
equal opportunity, grievances, discipline, termination, performance evaluations, Internet
usage, pregnancy leave, hiring and employment at-will. Then make sure employees
sign off that theyve read it.
If you dont have a handbook, you may not be able to secure EPL insurance because
insurance carriers take this very seriously. They want to see that youve taken proper
steps in terms of risk management and providing a safe workplace.
You can protect yourself even more by making sure youre following proper procedures
regarding hiring, firing, performance reviews and even interviewing prior to hiring
someone.

Taking these steps also reduces risk, which will generally translate into lower insurance
premiums. EPL insurance works hand-in-hand with your internal employment practices
to provide necessary resources to defend your company against a lawsuit or claim.

In Defense of Discrimination
by William Scott Dwyer
Discrimination is bad! We hear it from the pulpit, from the media, from our moralists
and especially from our civil rights leaders. Discrimination is bad, immoral,
indecent and downright un-American! Individualists even argue that discrimination is
collectivist -- that it is wrong to discriminate on the basis of group membership, such
as by offering price discounts to seniors or free drinks to women on Ladies Night.
We even have laws prohibiting discrimination on the basis of race, religion, gender,
age or disability
But is discrimination the evil that everyone says it is? My answer is: No. It depends
on the kind of discrimination one is talking about. In fact, discrimination can be a
good thing and even something worth promoting. If that shocks you, then you need to
pay close attention, for I will be defending the very evil that is everyones favorite
whipping boy!
Let me begin by noting that racism is due not to the presence of discrimination but to
its absence. We condemn the racist because he fails to discriminate among different
members of the same race. Instead, he lumps them all together indiscriminately on the
basis of group membership, when theyre really unique individuals with different
characters and abilities. We call his action discrimination because he discriminates
between members of his own race and those of another by judging the former as
individuals but not the latter. But observe that what we really object to in the racist is
his lack of discrimination. What we find offensive is that he isnot sufficiently
discriminating that he does not discriminate enough among individual members of
the same race. The cure for racist stereotyping is more discrimination, not less.
Some people condemn price discrimination for the same reason as racist
discrimination. Take senior discounts in which sellers charge people over sixty-five
less money for the same good or service. Sellers do this, because seniors tend to have
less money than non-seniors and offering them a discount is a way of getting them to
buy the product. The seller would prefer to be even more discriminating and to charge

every individual a different price based on the buyer's willingness to pay it. But the
seller has no cost-effective way of determining each persons demand price. So the
most efficient method is for him to identify differences among groups of people and to
discriminate on that basis. While identifying group differences is not as discriminating
as the seller would like, its the best he can do.
Observe that charging everyone the same price is itself a process of lumping people
together indiscriminately and treating them all as undifferentiated members of the
same group the buying public. But this is never denounced as stereotyping buyers or
prejudging their demand prices. It is never condemned as collectivist thinking, even
though for people who condemn price discrimination as collectivist, it should be.
Furthermore, much of what passes for racism -- for judging people indiscriminately
on the basis of race -- is really an example of the opposite -- of discriminating among
members of the same race.
Consider the oft-cited example of cabbies passing up blacks who are waiting for a
cab. Do the cabbies pass up elderly black women? No, they pass up young black men.
They discriminate, not on the basis of race, but among members of the same race
according to age and gender. Is this kind of discrimination rational? Considering that
eighty-five percent of the six felonies committed every day against cab drivers in New
York City are by black men between the ages of sixteen and forty, it is eminently
rational. Yet cab drivers who refuse to pick up young, black men as passengers are
routinely condemned as racist.
In reality, in order for the drivers behavior to be classified as racist, they would have
to exhibit a failure to discriminate among members of the same race, by lumping all
blacks together and treating them as undifferentiated members of the same group,
which they are obviously not doing. They are discriminating among blacks by passing
up only certain individuals within that group.
And they are doing so out of concern for their very lives.
As one cabbie put it, "Cab drivers have only one effective way of protecting
themselves against the murderous thieves who prey on us. And that is to exercise
experienced discretion in whom we pick up [i.e., to discriminate against young black

men]. . . . Half of New York's cab drivers are themselves black, and act no differently
from white drivers."
A study by Howard University in Washington, D.C. concluded that when similarly
dressed blacks and whites tried to hail a cab, blacks were turned down seven times
more frequently than whites. But in the lawsuits that arose from this study, none of the
cab drivers accused of discrimination was white. All were African immigrants, nativeborn blacks or Middle Easterners. In Washington D.C., a reporter interviewed a dozen
black cabbies, and found that nearly all of them refused to pick up young, black men
at night. In exercising their right of refusal, these drivers risk a $500 fine for
"discrimination" and eventually a suspended license, but said one, "I'd rather be fined
than have my wife a widow".
In San Francisco, both taxi drivers and pizza deliverers refuse to go to certain black
neighborhoods out of fear for their very lives. Are they guilty of racism? Is it simply
the fact that the residents of these neighborhoods are black that prevents them from
going there, or is it the fact that the neighborhoods are high crime areas that happen to
be populated by black residents? If the neighborhoods were safe and upscale as some
black communities are (e.g., a wealthy all-black suburb of Atlanta), then taxi drivers
and pizza deliverers would have no fear of going there. If they would, then they'd be
judging all blacks indiscriminately on the basis of race and would indeed be guilty of
racism. What they are doing in San Francisco is discriminatingamong different
members of the black population which is the antithesis of racism.
It is for this reason that San Francisco supervisor Willie Kennedy, living in the
predominantly black Bayview-Hunters Point area, was refused a delivery from
Domino's Pizza. Kennedy's reaction, however, was not one of rational understanding
but of moral indignation. "It's absolutely ridiculous for us to license people to do
business in San Francisco (when) they do not serve the entire region", she said. "It
makes me angry -- I pay my taxes in this city, and I don't get what everybody else
gets." Observe that she was condemning Dominos Pizza for not being sufficiently
indiscriminate in their judgment -- for not viewing the entire city of San Francisco as
one undifferentiated, homogeneous mass of people with no differences in character or
crime rate. This is the same attitude that opponents of racism, like Willie Kennedy,
would be quick to condemn if it were applied to an entire race of people.

Charles Augustine, black publisher of the Bay Area Gazette, was more realistic.
Responding to Kennedy's objection, he said: "Well, let's get real. Why won't
[Domino's] go there? Have you ever heard of a merchant not wanting to make a buck?
The answer is "no." The reason they do not want the business is because thugs rob,
beat up or intimidate service people. Now why won't blacks deal with the real
problem -- that is, getting people in the neighborhood to realize that if we allow thugs
to bother service people, we will not be able to get service. It drives me crazy when I
have difficulty catching a cab or have to wait forever for a bus. Do we expect people
to endanger themselves?"
Finally, and perhaps most important, the management of Domino's has an obligation
to be concerned for its employees' safety. Wally Wilcox, the owner of Domino's Pizza
franchise store, stated that he does not deliver to public housing projects in San
Francisco, since one of his driver's was shot after taking a pizza to a home in a
dangerous neighborhood. "We've (also) had guys go after us with sticks and knives",
he said. "They do all kinds of things."
Nonetheless, at Willie Kennedy's urging, the San Francisco Board of Supervisors
passed a "pizza delivery law", which makes it illegal to refuse delivery of a pizza to
dangerous neighborhoods in San Francisco. It is ironic that advocates of governmental
intervention often point to the so-called benefits of OSHA (Occupational Safety and
Health Administration) regulations, which I'm sure every member of the San
Francisco Board of Supervisors would support, yet when minority interests are
involved, these same supervisors see nothing wrong with voting for legislation that
seriously endangers the health and safety of pizza deliverers, many of whom are poor
students and immigrants struggling to get by.
Responding to this absurd legislation, one San Francisco resident had this to say:
"Refusing to make deliveries to extremely dangerous parts of town reflects more
common sense than unfair discrimination. Restaurants are in business to make money;
having goods stolen and drivers injured is not a profitable method of operation for any
business. How many of the supervisors would honestly want to deliver a pizza to the
Sunnydale or Bernal Heights projects after dark?" What he should have said is that not
making deliveries to extremely dangerous parts of town is indeed a form of
discrimination, but one that is entirely legitimate.

The point is not that all discrimination is legitimate (obviously, such things as separate
facilities for blacks and whites are not), but rather that there are many forms of
discrimination which are justified, but which civil rights activists denounce as
"discriminatory," thereby making no distinction between rational and irrational forms
of discrimination. The kind of discrimination that cabbies and pizza deliverers engage
in is eminently rational -- indeed, required for their health and safety. It should not be
condemned as immoral, much less made illegal.
Sometimes, I feel discriminated against, but it does not make me angry. It merely
astonishes me. How can any deny themselves the pleasure of my company? It's beyond
me. ~ Zora Neale Hurston
Everyone gets a taste of discrimination. It's the first bowl passed around at the table of the
American Socio-Cultural experience. You can thank the chef, White Privilege for that, send a
nod to Patriarchy as well if you're a woman. The first taste is bitter, it's supposed to be.
Don't let it sway you.
See this isn't about being a victim, which you will hear over and over again if you choose to
comment on the taste. The way the systems and structures have evolved make it necessary
for some to get a larger portion than others. I was born Black and a woman, I get a double
serving.
Right after the discrimination is served, the next dish is the word "victim". You don't have to
take any. Victim is usually served as a way to silence you. Some will try to shove that in your
mouth as a way deny or dismiss what you experienced. As if what you've seen or heard said
has no mental, emotional or physical effect on you. Please pass on this dish. Silence is not
golden. Your mental, emotional and physical health is all you have. Speak up, let go, move
on.
The best defense is authenticity. You get to say that you see it, that you experience it, you get
to name who and what it is. Being silent about discrimination is being complicit.
Inquire, argue dispassionately. Know that most who discriminate have taken extra helpings
of bigotry and stereotypes. They feast on ignorance and eschew any dish that challenges
their worldviews or privilege, as if they'd starve if it wasn't part of the menu.
Live your life wholly, authentically, challenge when it is necessary to your mental, physical
or emotional life. Invite allies to the table. Demand more social justice, equality, and nonjudgment be served. We'll all be healthier if we took more time to watch what we eat.