Uniondale, February 26, 2010 — Partner Russell G. Tisman is featured in the Long Island Business News listing of “Who’s Who in Labor Law.” In the article, Mr. Tisman discusses legislative initiatives that have taken place that employers should be aware of.
“Two pieces of pending legislation highlight attempts to further expand employee rights under federal employment discrimination laws. The ADEA Mixed Motive Act (H.R. 3721; S. 1756) attempts to overturn the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343 (2009), which held that mixed motive claims are never permissible under the Age Discrimination in Employment Act. Unlike Title VII, where an employer must show in a mixed motive case that it would have made the same employment decision in the absence of the discriminatory motivation, an age discrimination plaintiff has the burden of proving that age was the “but-for” reason. This pro-plaintiff legislation would extend the lesser burden of proof under Title VII to age discrimination claims,” notes Tisman.
He concludes, “The Title VII Fairness Act (S. 166) would extend the statute of limitations in all employment discrimination cases. Under current law, as reflected in Miller v. International Tel. & Tel. Corp., 755 F.2d 30 (2d Cir. 1985), a case I handled, the time to file a charge, and the statute of limitations, run from the date an allegedly discriminatory act occurs. Under this act the statute would commence when an employee reasonably suspects or should suspect that discrimination has occurred. Under current law employers have a degree of certainty in determining if a claim is barred by the statute of limitations. The Title VII Fairness Act will inject uncertainty because of the subjectiveness involved in determining when an employee “should suspect” that discrimination tainted an employment decision.”
Russell G. Tisman specializes in complex corporate, commercial, defense, employment, labor and Surrogate’s Court litigation. He has tried cases and argued appeals in Federal and State courts and administrative agencies throughout the United States, and in arbitration and other alternate dispute resolution fora. Mr. Tisman also actively counsels management and human resource professionals on employment and labor matters. He represents public companies, privately held businesses, insurers, financial institutions and individuals in all types of business related disputes.