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2021 | VOL. 45 | NO. 1
Labor and Employment
Law Journal
A publication of the Labor and Employment Law Section of the New York State Bar Association
LIFETIME GORDON DECISION
WHAT HAPPENS BIFURCATED EMPLOYMENT AND
ACHIEVEMENT CLARIFIES EMPLOYEE
AFTER MEDIATION SETTLEMENT CREDIT REPORTING
AWARD: RIGHTS UNDER NY’S
“FAILS”? STRUCTURES LAWS
EVAN SPELFOGEL CANNABIS LAW
CLE
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Contents Labor and
Employment
Features
Law Journal
3 Proposed Nomination of Evan Spelfogel:
Lifetime Achievement Award/NYSBA L&E 2021 | Vol. 45 | No. 1
Section
Michael Bernstein
Regulars
5 Comments for Lifetime Achievement Award
Evan Spelfogel 6 Message From
the Chair
Chris D’Angelo
8 Feel Free To Discriminate Against the
Mentally Ill: How the ADA Fails Those With
Psychiatric Disorders
Eric Broutman
59 Section Committees
and Chairs
11 What Happens After Mediation “Fails”?
Vivian Berger
15 Bifurcated Settlement Structures: The
Loophole Currently Undermining Settled
Labor Law in New York
Daniel Sweeney
28 Gordon Decision Clarifies Employee Rights
Under New York’s Cannabis Law
Geoffrey A. Mort
31 Employment and the Credit Reporting
Laws: Negotiating the Shoals of Consumer
Protection, Business Need, Data Privacy, and
Public Policy
Lawrence D. Bernfeld
Labor and Employment Labor and Employment
Law Journal Law Section
Editor-in-Chief Section Officers
Colin M. Leonard
Bond, Schoeneck & King, PLLC Chair
One Lincoln Ctr Timothy Taylor
Syracuse, NY 13202-1355 55 Blythewood Drive
cleonard@bsk.com Pittsfield, MA 01201-1202
timothytaylor1@mac.com
Beginning with the next publication, the new edi-
tors of the Labor and Employment Law Journal will Chair-Elect
be: Robert L. Boreanaz
Subhash Viswanathan Lipsitz Green Scime Cambria LLP
Bond, Schoeneck & King, PLLC 42 Delaware Ave. Suite 120
One Lincoln Center Buffalo, NY 14202-3924
Syracuse, NY 13202-1355 rboreanaz@lglaw.com
sviswanathan@bsk.com
Julie A. Torrey Secretary
J Torrey ADR Bernard E. Mason
PO Box 1935 New York State Nurses Association
Huntington, NY 11050 131 W 33rd St. Fl 4
jtorreyadr@gmail.com New York, NY 10001
Tyler Hendry bernard.mason@nysna.org
Herbert Smith Freehills New York LLP
450 Lexington Avenue Immediate Past Chair
New York, NY 10017 Christopher D’Angelo
tyler.hendry@hsf.com 511 Manor Lane
Pelham, NY 10802
dangeloc@conded.com
Publication and Editorial Policies
Persons interested in writing for the Labor and Employ- NYSBA.ORG/LABOR
ment Law Journal are welcomed and encouraged to sub-
mit their articles for consideration. Your ideas and com-
ments about the Labor and Employment Law Journal are Non-Member Subscriptions: The Labor and Employment
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us by e-mail in Microsoft Word format. Please include Accommodations for Persons with Disabilities:
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paragraph biography. abilities. NYSBA is committed to complying with all appli-
cable laws that prohibit discrimination against individuals
Editorial Policy: The articles in the Labor and Employ- on the basis of disability in the full and equal enjoyment of
ment Law Journal represent the author’s viewpoint and its goods, services, programs, activities, facilities, privileges,
research and not that of the Labor and Employment Law advantages, or accommodations. To request auxiliary aids
Journal Editorial Staff or Section Officers. The accuracy of or services or if you have any questions regarding accessi-
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responsibility of the author.
Deadlines for submission are January 15th, May 15th Publication Date: June 2021
and September 15th of each year. If we receive your
© 2021 by the New York State Bar Association.
article after the submission date, it will be considered for
ISSN 2155-9791(print) 2155-9805 (online)
the next issue.
Lifetime Achievement Award
NYSBA Labor and Employment Law Section
By Michael Bernstein
Nomination of Evan Spelfogel Methodist University, Boston University and the Univer-
sity of Washington; his many other roles and associations
I write in support of the nomination of Evan Spelfo-
in the field of labor and employment law, including, inter
gel for the Lifetime Achievement Award/NYSBA L&E
alia, as co-chair of the Developing Labor Law Commit-
Section. I do so in the belief his contributions and com-
tee of the ABA Labor and Employment Law Section and
mitments to our field of law, and to the Labor and Em-
chair of the first Mid-Winter Meetings of ABA Commit-
ployment Section in particular, in many ways have been
tees; chapter editor of ABA-BNA’s Developing Labor
unparalleled over the past half century, including as to
Law treatise and annual supplements; co-editor in Chief
the very creation of the Section and its evolution to this
of the Benefits Law treatise and annual supplements;
very day. It is time. As my oldest friend from Brooklyn
section delegate to the ABA House of Delegates; char-
would state it, Evan is in his ninth decade—indeed, in
ter member of the NYSBA Dispute Resolution Section;
his case, already, I believe, halfway into his ninth decade.
longtime regional chair, Second Circuit, of the College of
If the Committee agrees he is deserving of the award, I
Labor and Employment Lawyers and co-chair of the col-
respectfully submit, we should not, and cannot, wait.
lege’s Committee to Study Use of Artificial Intelligence
To say that Evan is one of a kind is, as those who in Law Firms; and past president and ongoing advisory
know him well, no exaggeration. He is a provocateur, a board member of the New York Chapter of the Labor
pioneer, an instigator and at times seemingly mischie- and Employment Relations Association (formerly IRRA,
vous (evidenced by a certain gleam in his eyes), but now LERA)—not to mention countless, and diverse,
always with a constructive and motivating purpose in publications.
mind. If that seems counterintuitive, it is these very qual-
Focusing on the nexus to the L&E Section, however, I
ities, coupled with a creativity, passion and fierce loyalty
also would like to share with you what, as a very long-
and dedication, that have been instrumental in the devel-
time member, and past chair, of the Section, I believe to
opment of this Section from its very inception. To state
be most—and perhaps uniquely—pertinent in the context
the obvious, any organization with ambitious and bold
of this Section’s Lifetime Achievement Award:
aspirations for the future needs people like Evan. That
is difficult enough to find; retaining such people over a Prior to the establishment of the Section, Evan had
lifetime is something else. been a member of the Labor Law Committee of the
NYSBA from 1970-75 [approximately 25 members],
I first met Evan in the early 1960s when we both were
then chaired by Frank Nemia. Frank, Evan and other
employed by the National Labor Relations Board, Region
members of that Committee sought to convert it into a
2 in New York. After graduating from Harvard College
Section, predicated upon the NYSBA’s commitment to
and the Columbia University School of Law, Evan served
accord it such recognition if and when they could sign up
with the Solicitor’s Office of U.S. Department of Labor
a minimum of 400 members—what then was assumed
[Washington, D.C.] and the Boston regional office of the
might take several years to achieve. Within one year
NLRB; we were colleagues at the Board when he relocat-
(1975-76) they were able to sign up 500 members and the
ed from the Boston office to Region 2, which I had joined
Section was created. Frank was elected as its first Chair
in 1962. I left the Board for private practice at the end of
and Evan was elected to succeed as Chair-Elect. In that
1964 and in that period at the Board and in the ensuing
capacity Evan created standing committees, while other
56 years, I personally came to know Evan and to appreci-
members of what had been the Labor Committee were
ate him all the more for what he meant to our profession
designated chairs of the standing committees, and each
and, as discussed below, to this Section.
became members of the new Section’s Executive Com-
Over those years we served as members of many of mittee. Evan assumed the first full-time position of Chair
the same organizations and committees and spoke at a of the Section in 1977, at which time he designated John
number of the same forums. I witnessed, and valued, his Sands as Section Secretary, chaired the first annual and
many contributions, including his current role as adjunct semi-annual meetings of the newly formed Section and
professor of law at the Columbia University Law School arranged for featured speakers, and was instrumental in
and his prior role as adjunct professor at Baruch College the drafting of a new Section bylaws and constitution, as
of the City College of New York; his roles as lecturer at St. well as the establishment of an approach to governance
John’s University and at New York University, Southern by an Executive Committee predicated upon a balance of
NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1 3labor and management patterned after ABA Labor Sec- commitment and dedication. None of these highlights,
tion and New York City Bar Association formats. Beyond moreover, is intended to minimize the vital roles of others
that, during the period 1977-1980, Evan was key to the over the past half-century. Again, however, I have always
creation of the Section newsletter, which later became the seen Evan as “one of a kind” and, in that spirit and in the
Section journal, became its first editor and both wrote belief it is time, I wholeheartedly, and proudly, nominate
and solicited articles for the publication. In the ensuing Evan for this Section’s Lifetime Achievement Award.
years, Evan continued to play an active role on various
succession and other governance issues, both as a mem-
ber of the Executive Committee and in the formation and Michael Bernstein is a former Chair of the Labor
oversight of a new Legislative Committee to review and and Employment Law Section, currently a member of
report to counsel for the governor on labor law issues of its Executive Committee, and a recipient of the Sec-
note. tion’s Lifetime Achievement Award. He also serves on
NYSBA’s Committee on Diversity and Inclusion and its
It did not stop there. Evan served two terms as Sec- Youth Law Day Subcommittee and is former chair of the
tion Delegate to the NYSBA House of Delegates and on Federal Labor Standards Committee of the American Bar
various committees, including the Margery Gootnick Association. He is a Fellow of the American Bar Founda-
Committee on the Structure and Future Directions of tion, the New York Bar Foundation and the College of
the Section and thereafter on the Spelfogel Commit- Labor & Employment Lawyers, and has served on vari-
tee formed to review and update the Gootnick Report ous task forces and advisory committees to the governor,
and Recommendations. He also was the recipient of the lieutenant governor, the American Bar Association , the
Section’s 2014 Samuel Kaynard Award for service to the New York City Commission on Human Rights and the
labor and employment law field. New York State Division of Human Rights. A former
To those who know Evan, and his passion and zest managing partner of Benetar Bernstein Schair & Stein,
for whatever endeavors he pursues, none of the above since 2004 he has been a senior partner and currently is
roles and responsibilities has been other than with full of counsel with Bond Schoeneck & King.
Women in
Lawyer Assistance
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Program
Lawyer Assistance Program
Confidential Helpline
1-800-255-0569
NYSBA’s Lawyer Assistance Program offers no-
cost confidential services to help you or a loved
one suffering from a mental health struggle or
alcohol or substance use problem. Call the helpline
at 1-800-255-0569 or email the LAP Director,
Stacey Whiteley at swhiteley@nysba.org, to find
support.
Information shared with the LAP is confidential
and covered under Judiciary Law Section 499.
You are not alone.
There is help available.
For self-assessment tools and additional resources
go to NYSBA.ORG/LAP
4 NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1Remarks on the Lifetime Achievement Award
By Evan J. Spelfogel
I feel overwhelmed and humbled by the honor being • Burdell Bixby, chief
bestowed upon me, and by Mike Bernstein’s remarks, counsel to governor and
particularly as he is one of only three persons who have presidential candidate
received this award before me. Thomas Dewey at Dewey
Ballantine;
Mike has already described some of my work with
the Section and its predecessor, the Labor Law Com- • Leonard Rovins at
mittee. Back in 1970-1975 Frank Nemia, Mike Bernstein, Fellner Rovins & Gallay—
Stanley Schair, Ike Perlman, Carl Krause, Max Zimny, a giant in the field in his
a handful of others and I were members of a 25-person own right; and, for most of
State Bar Labor Law Committee chaired by Frank focus- the past 30 years; and
ing primarily on union management labor relations.
• Ron Green at Ep-
We dreamed of someday creating a bar association stein Becker & Green, one
Section and worked hard toward that goal. NYSBA of- of the greatest litigators I
ficials committed to the creation of our new Section if we have ever had the pleasure Evan J. Spelfogel
could gather 400 members within two years. We signed of working with.
up 800 the first year and have since grown to over 2,000
and become one of the most significant and influential They taught me not only the fundamentals of labor
Sections in the State Bar Association. Frank was our first and employment law but also the art of negotiating, me-
Chair and I followed him. diating and litigating.
Along the way we evolved, first to include employ- They taught me not to counsel a client that what she
ment lawyers and then to focus on and lead the bar in wanted to do was illegal and could not be done, but rath-
recognizing the need for diversification among women er how to do it legally and with as little risk as possible.
and minorities. And more importantly, they taught me never to back
During my career, I had the good fortune of work- my adversary into a corner, never to seek to squeeze out
ing with and being mentored by giants in the profession, the last few concessions, and always to allow my adver-
beginning in the 1960s with: sary to walk away with dignity and respect for a job well
done.
• Stuart Rothman, then solicitor of labor and later
general counsel of the National Labor Relations Board in These are attributes I have always tried to teach my
Washington; associates and new lawyers—along with proper English
and grammar.
• Bob Fuchs, regional director of the NLRB in Boston
(son of Emil Fuchs, owner of the Boston Braves—yes And, more recently, as my practice has evolved more
there was another team in Boston besides the Red Sox and more toward serving as a neutral in business arbitra-
and as owner, he brought Babe Ruth to Boston for his tion and mediation, I have learned much from Simeon
final year); and Baum and Steve Hochman, Rebecca Price and members
of the NYSBA Dispute Resolution Section Executive
• Harold Kowal, regional attorney at the Boston Committee, while continuing my practice at Phillips
NLRB, who taught me that a brief meant 25 pages or less; Nizer LLP.
and, of course,
And I have learned that one who lives long enough
• Sam Kaynard, regional attorney and regional direc- can be recognized with a lifetime achievement award
tor at the Manhattan and Brooklyn NLRB offices. while still alive!
Once out in private practice I continued to benefit Sadly, my wife of 54 years, Beverly Kolenberg Spelfo-
by having as mentors some of the most experienced and gel, passed away seven years ago and cannot be with us.
brightest minds in the field: Happily, I have been fortunate to find my new love of my
life, Barbara Zinn Moore, who is here today celebrating
• Ed Coffey at Simpson Thacher & Bartlett—who,
with me and our families.
among other advice, taught me to write my notes of
union negotiations and witness interviews so only I Thank you all so very much, from the bottom of my
could read them; heart.
NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1 5Message From the Chair
Dear Members of the Labor and Employment Law • Case Law Update:
Section: U.S. Supreme Court
Decision
As my one-year term draws near to a close . . . well,
what a year it has been! • Unemployment
Insurance and CO-
Beginning in early January 2020, I started planning
VID-19 Updates
to take the reins as Chair of the Labor and Employment
Law Section in June 2020. I knew I had a tough act to • Voting Rights &
follow. Alyson Mathews is a friend and did a tremendous Voter Suppression:
job as our Chair. She focused on increasing membership, 100 Years After the
driving content to our new website, and continuing our 19th Amendment
Section’s longstanding commitment to diversity and
inclusion. So, like any smart leader who follows someone • Placing a Spotlight
who is smart, popular, and successful, my plan was to on Police Discipline
stay the course. Continue what Alyson started, and build in New York State Chris D’Angelo
on it as best as I could. with a Focus on
Racial Injustice
As the saying goes, the best laid plans of mice and
men often go awry. In 2020, multiply that by 10. First, • Preparing Employees for Transitioning from Quar-
COVID-19 changed the way we worked, thought, inter- antine Back to the Workplace
acted, and lived. It began in March, and by June there still Two co-sponsored programs
was no light at the end of the tunnel. Then, in late May,
George Floyd’s death under the knee of a Minneapolis • Bringing Employees Back to the Office: Key Steps
police officer changed our outlook on so much more, in and Preparations for Law Firms
so many important ways. In between that horrific death • Legal Challenges Facing Restaurants During and
and as I write this in early April 2021, we’ve experienced After a Pandemic
civil rights protests throughout the country; a national
election which was not decided for days; loud and vigor- And in addition
ous allegations of election fraud; dozens of lawsuits al- • Two full days in October 2020 offering 10 credits of
leging election fraud commenced and quickly dismissed; CLE for our Fall Meeting
an armed insurrection seemingly designed to postpone,
if not change, the election results; the inauguration of a • One full day in January 2021 for our Annual Meet-
new president; and the roll-out of a vaccination program ing, offering 5 credits of CLE
that finally seems to be taking hold. Regrettably, though,
• Monthly meet-and greets with Section members
as things were looking up, we also witnessed yet again
and the Chair, Chair-Elect, membership Chair and
the horrific death of yet another young Black man at the
other Executive Committee members
hands of the police in Minnesota.
• Co-sponsorship (with Cornell ILR) of a two-hour
As I said at my first meeting in June, reflecting on
program entitled “We Make History: Amplifying
COVID-19 and George Floyd, “challenge presents op-
the Black Experience in Labor and Employment
portunity.” I believe this Section rose to the challenge,
Law and ADR,” celebrating Black History Month
saw opportunity, and used this past year to expand our
outreach in strong and meaningful ways. These accom- • Creation of a Diversity Task Force to develop and
plishments include: implement a Diversity and Inclusion Plan. The plan
was completed in January and is in the process of
Seven webinars and CLEs being implemented.
• COVID-19 Paid Leave and Employee Benefits:
Overview of Federal, New York State and New These accomplishments could not have been
York City Laws achieved without a lot of hard work and effort from some
important Section members. There are too many to list
• Unraveling the Unemployment Insurance Benefits here, but special mention should go to our CLE Co-Chairs
Hearing Process Rob Boreanaz, Abby Levy and Karen Fernbach and com-
mittee members Angel Cox and Melissa Rodriguez, for
6 NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1their deft and extremely capable handling of presenting 30 labor and employment lawyers, women and people of
CLE programs in such uncertain times. Alyssa Zucker- color, who are engaged and active, and who, along with
man, Loren Gesinsky, Geoff Mort, and Steve Sledzik also many of the other talented lawyers already participating
deserve special mention for their committee work, as in the Section are our leaders for the future. Tim did a
does Wendi Lazar for her stewardship in presenting a terrific job with this project, in the middle of a pandemic!
powerful program on the 100th Anniversary of the 19th And his work as the Chair of our Diversity Task Force
Amendment. They are illustrative of a vibrant Section was some of the most impactful work this Section has
that continues to work hard to provide value to its mem- seen. We have a blueprint now for our DEI initiative for
bership, notwithstanding the obstacles that may exist. years to come, and we will be seeing the results of this
work in the days, weeks, months and years to come.
What I cared most deeply about as I took on the role
of Chair was to increase our membership base, and spe- The one regret I have is that our virtual success also
cifically our membership base of people of color. In this highlights what has been missing. We did all of this
Section, we know that a diverse and inclusive member- without handshakes and high fives, or cocktail hours or
ship and leadership is vital to our success. And despite shared meals, and in the absence of a funny expression or
our longstanding commitment to making sure our Sec- a meaningful glance. While we rose to the challenge and
tion is diverse, equitable, and inclusive, we also know seized the opportunity, I look forward to seeing all of you
that we constantly must reflect on our past efforts, take again, live and in 3-D, to continue our success and our
stock of where those efforts have brought us, and recom- path forward.
mit to developing a diverse and inclusive Section with a
I know that Tim and Rob will build on this, and make
deep and diverse pool of talent.
us a better, stronger, more vibrant Section. I hope to con-
So, I asked our Chair-Elect at the time, Tim Taylor, to tinue to be part of that. Be well and stay safe. It has been a
take the lead on identifying and developing a more di- privilege to serve you over the last 12 months.
verse pool of talent. He delivered great results, and then
some. Through tireless networking efforts both upstate Warm regards,
and downstate, Tim has pulled together a group of 25 to
Chris D’Angelo
Thank You!
For your dedication,
For your commitment, and
For recognizing the value and
relevance of your membership.
As a New York State Bar Association member,
your support helps make us the largest voluntary
state bar association in the country and gives us
credibility to speak as a unified voice on important
issues that impact the profession.
T. Andrew Brown Pamela McDevitt
President Executive Director
NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1 7Feel Free To Discriminate Against the Mentally Ill:
How the ADA Fails Those With Psychiatric Disorders
By Eric Broutman
Introduction Notice of the Disability
Three weeks ago we celebrated our na- One of the tenets of ADA law is that the employer
tion’s Independence Day. Today we’re must be aware that the individual in question has a dis-
here to rejoice in and celebrate another ability. This fairly straightforward requirement makes
‘independence day,’ one that is long intuitive sense because how can an employer be liable
overdue. With today’s signing of the for discriminating against an employee with a disability
landmark Americans for Disabilities Act, if the employer never knew in the first place that the per-
every man, woman, and child with a dis- son had a disability? In many instances the fact that an
ability can now pass through once-closed employee has a disability is fairly evident—the employee
doors into a bright new era of equality, requires a wheelchair or is blind, for example. However,
independence, and freedom. as we focus on those with a mental illness it becomes far
less obvious to an employer that someone suffers from a
Those words were spoken by President George H. disability.
W. Bush on July 26, 1990, upon the signing of the Ameri-
cans With Disabilities Act. There is no arguing that the This is generally true for two reasons. First, those
ADA has been a watershed piece of legislation for many with a mental illness often themselves fail to realize they
individuals with a disability, allowing them to fully suffer from an illness. Or, even if they do, when that ill-
engage in the workforce. For those people, the ADA has ness is exacerbated, and a mentally ill person begins to
alleviated the fear that just because you suffer from a exhibit symptoms, they fail to recognize those symptoms
disability you may lose your job, or you might not even and believe everything is fine. Indeed, this lack of insight
be hired in the first place. The same, however, cannot into one’s illness is not simply ignorance or denial, but
be said for those with a mental illness. The ADA, while rather is a symptom itself of mental illness regularly rec-
not purposefully, ignores the struggles of those with a ognized by clinicians called anosognosia. Mental illness
mental illness and oftentimes leaves the mentally ill with is the only affliction where a part of the illness is to con-
no protections whatsoever. This poses a tremendous vince the patient that he or she does not have an illness.
problem because the Centers for Disease Control esti-
Second, the stigma associated with mental illness
mates that 18.3%, or nearly 44 million Americans, suffer
is a tremendous barrier to reporting the disability to an
from a mental illness.
employer. Employees often worry that they will be la-
This article will explore how the requirements of the beled as “crazy.” Employees are rightfully concerned that
ADA make it largely impossible for those with a mental supervisors and co-workers alike will avoid them due to
illness to seek many of the statute’s protections including a fear that they will “do something crazy” or just fail to
a request for a reasonable accommodation. Unlike other give them challenging or important work projects out of
disabilities, such as cancer, blindness, troubles ambulat- the misguided belief that by taking it easy on someone
ing, etc., mental illness affects one’s ability to even ap- with a mental illness you are doing him or her a favor.
preciate that he or she has an illness, let alone to inform
Even if the latter reason of stigma could be avoided
an employer of that illness and go through the myriad
with appropriate work culture and education of staff, the
steps necessary to avail oneself of the law’s benefits. In
former issue of lack of insight persists and the general
particular, this article will look at the notice requirement
rule that it is the employee’s responsibility to inform the
in the ADA, which demand that an employee notify his
employer of a disability remains. Courts that have looked
or her employer of a disability and the need for an ac-
at the matter require a fairly high bar in terms of notice.
commodation. Second, it will address the requirement
One court concluded that an employer’s knowledge that
that one engage in an interactive process to come to an
an employee was seeing a psychiatrist, took prescription
accommodation that is reasonable for both the employee
medication, and showed signs of depression was insuf-
and the employer. Finally, this article will address the fact
ficient to put the employer on notice.1 Yet another court
that many courts refuse to consider the one accommoda-
concluded that a note from an employee’s doctor men-
tion that most mentally ill individuals require: ignoring
tioning the symptoms the employee suffers, but not men-
prior bad acts that resulted from the illness.
tioning a diagnosis or an accommodation request, was
insufficient to put an employer on notice of a disability.2
8 NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1The expectation that those with a mental illness, es- Interactive Process
pecially those with severe mental illness where the symp- Assuming an employee can provide notice to his or
toms include a significant deterioration of one’s cognitive her employer of a disability and the need for an accom-
abilities, provide notice of their disability to an employer modation, the ADA then requires the employee to engage
works to shut the mentally ill out from the ADA’s pro- in an interactive process where the employer and em-
tections. It is simply not realistic to expect mentally ill ployee have a series of dialogues where, theoretically at
individuals suffering severe symptoms of their illness to least, working together they can arrive at an accommoda-
be organized enough to provide adequate notice of a dis- tion that resolves the employee’s issues while remaining
ability, including a diagnosis and symptoms. reasonable to the employer. Often this requires that the
employee complete numerous forms, provide medical
This does not mean that employers should per se be information, and discuss the employee’s precise needs.
liable if a mentally ill individual requires an accommoda- This is often an overwhelming hurdle for an employee in
tion and the employer has no notice. The ADA should, the throes of an exacerbation of his or her mental illness.
however, allow for a mentally ill employee to retrospec-
tively provide notice and request an accommodation In the event that an employee fails to adequately en-
after the symptoms of his or her illness are under con- gage in the interactive process, courts will often dismiss
trol, assuming a reasonable amount of time between the those cases because it is the employee that is responsible
incident and notice. This largely comes into play where for the breakdown in communication.3 Hence, in the
the accommodation that is required is to ignore prior bad majority of cases involving mentally ill employees, the
acts or poor performance due to an exacerbation of one’s employer can simply ignore the employee because she
illness. Moreover, employers should be made to be more will never be able to adequately engage in the interactive
mindful of an employee’s condition and suggest time off process.
when an employee appears to be acting oddly. This is
Again, while this is a seemingly reasonable set of
particularly true if the employer is aware that the em-
rules where the employee suffers from a physical dis-
ployee suffers from a mental illness but is unaware that
ability, this otherwise benign requirement closes off many
the employee is currently suffering an exacerbation.
mentally ill individuals from being able to request and
obtain a reasonable accommodation. A more equitable re-
NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1 9quirement would be for the employer to seek a surrogate, was; (2) whether the conduct was the direct result of the
whether it be a friend, family member, or physician to person’s mental illness; and (3) whether the employee,
act on the employee’s behalf until the employee’s mental or someone on the employee’s behalf, provided notice to
state is sufficient to take over for himself or herself. the employer within a reasonable period of time after the
conduct in question, that the conduct was non-volitional
but rather a symptom of the illness. Taking these factors
Excusing Prior Bad Acts
into consideration will allow the mentally ill access to the
Many times the sole accommodation that an indi- protections of the ADA while still protecting employers
vidual with a mental illness requires is for an employer from unreasonable requests.
to ignore prior bad acts that are the direct result of the
illness. This can include poor performance or actual bad
acts, such as cursing or acting bizarrely in a public work Conclusion
setting. Unfortunately, few courts recognize this as an Under the current environment those with a mental
accommodation. illness are left without any protection at all and the law
simply fails to recognize the reality of how mental illness
Largely this is due to the fact that EEOC guidelines works. The ADA was not enacted solely for the protection
do not contemplate this as an accommodation. The of those with physical disabilities. This more enlightened
guidelines state that an employer does not need to “ex- view is in line with the ADA’s purpose and scope to allow
cuse a violation of a uniformly applied conduct rule that those with a disability to, as President Bush said when the
is job-related and consistent with business necessity.”4 bill was signed into law, enter “into a bright new era of
Moreover, the guidelines state that reasonable accommo- equality, independence, and freedom.”
dations must always be prospective and that “an em-
ployer is not required to excuse past misconduct even if it
is the result of the individual’s disability.”5 Eric Broutman is a partner at Abrams, Fensterman,
Fensterman, Eisman, Formato, Ferrara, Wolf & Carone,
Most courts have adopted this guidance and hold LLP whose practice focuses on the areas of mental
hat the ADA does not require an employer to ignore past health law and employment law.
misconduct as an accommodation, even if that mis-
conduct is the direct result of the disability the person
suffers. One such example is where a court upheld the
Endnotes
termination of an employee for allegedly sleeping on the
1. See Kolivas v. Credit Agricole, 1996 WL 684167 (S.D.N.Y. Nov. 26,
job even though the employee claimed that the medi- 1996).
cation he took for a mental illness made him drowsy.6
2. See Zamor v. GC Services, LP., 2018 WL 1937088, *7 (W.D. Texas April
Indeed, the Second, Fourth, Fifth, and Sixth, and Seventh 24, 2018).
Circuits have all held that an employee cannot seek as a
3. See Nugent v. St Lukes-Roosevelt Hosp. Ctr., 303 F. App’x 943, 945-6
reasonable accommodation that an employer ignore past (2d Cir. 2008).
misconduct, based largely on the guidance given by the 4. EEOC Enforcement guideline, ¶ 35, https://www.eeoc.gov/
EEOC discussed above.7 policy/docs/accommodation.html.
Standing in stark contrast to the majority of other 5. Id. at ¶ 36.
Circuit Courts, the Ninth Circuit has departed from the 6. See Beaton v. Metropolitan Transportation Auth’y., 2018 WL 1276863
(March 2, 2018 S.D.N.Y.).
EEOC guidance and regularly holds that actions deriving
from symptoms of a mental illness are considered to be a 7. See McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir. 2012); Jones
v. Am. Postal Workers Union, 192 F.3d 417 (4th Cir. 1999); Hamilton v.
part of the disability and not grounds for termination.8 In Sw. Bell Tel. Co., 136 F.3d 1047 (5th Cir. 1998); Brohm v. JH Props Inc.,
one case, an employee with bipolar disorder was termi- 149 F.3d 517 (6th Cir. 1998); Palmer v. Cir. Ct. Cook Cty. Ill., 117 F.3d
nated after receiving a performance improvement plan 351 (7th Cir. 1997).
during a meeting with her superiors and then threw it 8. Humphrey v. Mem’l Hosp. Assoc’n, 239 F.3d 1128 (9th Cir. 2001).
across the table, used profanity, and slammed the door. 9. Gambini v. Total Care Rental, Inc., 486 F.3d 1087 (9th Cir. 2007).
The court concluded that the jury should have been
instructed that disruptive workplace conduct resulting
from a disability is a part of the disability and not a sepa-
rate ground for termination.9
In line with the Ninth Circuit’s holdings, the EEOC
should withdraw its previous guidance. Moreover,
courts should consider a number of factors in determin-
ing whether an accommodation request of ignoring past
misconduct is reasonable, instead of outright refusing to
consider such an accommodation request at all. Among
the factors to consider are (1) how egregious the conduct
10 NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1What Happens After Mediation “Fails”?
A Personal Account
By Vivian Berger
Introduction
I have been a mediator for more than 35 years. Like settling either at the mediation or soon thereafter, in its
many in my day, before mediation became as popular wake.2 And enough of my professor identity survives
and widespread as it is now, I received my first training for me to be also intellectually curious. As many of you
at a community mediation center. The cases I handled, know, post-Columbia I continue to write; most of my ar-
as a volunteer, were not commercial and did not require ticles relate to alternative dispute resolution, or employ-
a law degree; ordinarily, the parties came unrepresented. ment, or their intersection.3 All have been informed by
I oversaw matters as varied as landlord-tenant disputes, my practice. A number have also relied in large part on
falling-outs among neighbors (sometimes involving both empirical data,4 with PACER providing an especially rich
parents and children), custody and “P.I.N.S.”1 proceedings resource for federal court litigation.
referred from family court, and lovers’ quarrels. Because For this piece, I decided to use my own records of
I worked in Queens County, the archetypal city melting employment mediations, from approximately 2000 to
pot, the clients’ origins were as diverse as the cases them- date, as an actual database rather than just a source of
selves: Black, white, Latinx, Asian, straight, gay, Orthodox general insights or particular anecdotes. I retrieved 435
Jewish. I then branched out into mediating complaints
against police officers that had been filed with the New
York City Civilian Complaint Review Board. I also made
my first foray into the world of employment mediation;
for a short time, I took U.S. Postal Service cases and a
few matters pending before the New York State Division
of Human Rights. In these early years, during most of
which I was still an active Columbia Law School professor
as well an occasional litigator, I viewed mediation as an
avocation, not a career, and was content with my miscel-
laneous and principally unpaid or low-paid docket.
Fast forward to 2000: I retired from Columbia Law
School that year, having taken two week-long general
trainings and some shorter ones in specific subject matter
areas. Around then, I began to focus on developing a full-
time ADR practice and decided to become a specialist
in employment matters. In the criminal law domain, to
which I had devoted the bulk of my academic and litiga-
tion efforts until that point, there was always a story, and
none of it was boring. I figured, correctly, that the same
would be true when at least one party was an individual, cases, virtually all in the areas of discrimination or wage
not a company. Again, working for various court panels and hour. In addition to contemporaneous notes, which
and the Equal Employment Opportunity Commission always showed if a matter had settled during a session or
(EEOC) for quite a long time, I mainly volunteered my shortly afterward, I often had longer-term post-mediation
services or got paid below-market rates. data in the file. From time to time over the years, I had
tried to learn the “end of the story”—how and when the
Now, two decades later, a seasoned neutral, I remain action or dispute had come to an end, through negotia-
on the mediation panel of the United States Court for the tion, dismissal or, very infrequently, trial. Now, in much
Eastern District of New York. The bulk of my work is pri- more organized fashion, I supplemented my earlier
vate, however, or comes to me via the American Arbitra- findings by consulting a number of external sources, such
tion Association (AAA). as PACER, the New York State Supreme Court website,
other internet resources, and counsel.5 My aim was to
The Current Project: Whatever Became of Those locate those cases that had reached a definitive conclu-
Cases I Could Not Resolve? sion other than settlement: for example, involuntary dis-
I have always been personally curious what happens missals with prejudice, either by summary judgment or
after a mediation of mine “fails”—my shorthand for not otherwise, a hearing on the merits (as occurs at the EEOC
NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1 11in some federal sector proceedings), a trial verdict, or an My Overall Conclusion (and a Non-Conclusion)
arbitration award. First, let me be clear what I do not conclude: I do not
I acknowledge up front the limitations of this study. argue that the best course is always for the plaintiff to
Among other things, my earlier records are less detailed settle at mediation, if at all possible. For one thing, the
that the later ones. (I had to cull my papers in order to employee may succeed in getting a better offer later: for
avoid turning my home office into a welter of filing cabi- example, after additional discovery,10 doing well at her
nets.) Moreover, in matters disposed of in forums other deposition, or surviving summary judgment. Because of
than the local federal courts—state courts, arbitrations confidentiality provisions in the vast majority of discrimi-
or the EEOC—or ones that never were litigated, tracing nation complaint settlements, the mediator usually cannot
post-mediation history at times presented steep obstacles. learn the terms of any subsequent deal.11 (It is debatable
Such problems caused some sample bias. Further, the whether the recent changes in New York State law, barring
most recent mediations, as well as a few that proceeded a defendant from imposing such a constraint on an unwill-
at a glacial pace, posed a “tail” or “censoring problem: ing complainant,12 has substantially altered the practice:
“In outcome studies of cases filed within a study win- some claimants may themselves want confidentiality, and
dow, the sample may be skewed if many cases are still others may negotiate a premium for agreeing to it.)
pending when the window closes and not included in the Moreover, judgments about the wisdom of an em-
study.”6 Lastly, different types of employment disputes, ployee’s decision to settle implicitly assume that the
like discrimination and wages and hours, might not be plaintiff is, or should be, an “economic man”: a person
fungible,7 thereby making the results less susceptible to who measures costs against benefits and acts in accord
general conclusions. But even with these caveats,8 I will with his or her rational self-interest. But individuals may
next analyze what I found to see if the data were at least have non-economic reasons to “go for broke” rather than
suggestive of any (probably modest) conclusions. resolve their cases. For instance, they may gain a sense
of empowerment by standing up to the defendant. They
Results of the Study may seek even an improbable victory in order to teach the
employer a lesson and, it is hoped, prevent others from
Of the 435 cases with which I began, those with
suffering discrimination in the future. Or they may wish
results known to me that did not settle during mediation
to inflict pain on their adversary by forcing it to spend a
or in its immediate aftermath, and were not involuntarily
lot of money in mounting a defense.13 At least, if a claim-
dismissed with prejudice; almost all settled in the end.
ant understands the risks she confronts and is conscious
Most likely, this was also true of the relatively few that I
of the basis for her decision—rather than, say, so blinded
could not trace.9 I was able to track 29 (6.7%) of the total
by emotion that she is not really making a knowing
to a final, non-settlement disposition. (Fortunately, all
choice among options – she is acting in her own interests,
involved discrimination, not wages and hours, claims—
whether or not these appear rational in strictly economic
thereby avoiding the apples-and-oranges comparison
terms.
problems discussed in Part II.)
Furthermore (and this is why, in discussing resolution
My principal finding was that in 25 (86.2% of 29), the
at mediation, I inserted the qualifier “if at all possible”),
dispute ended adversely to the plaintiff. Nineteen grants
settlement may not be a realistic choice for the plaintiff if
of summary judgment made up 65.5% of the 29; two
the defense takes a no-pay or nuisance value position in a
sui generis dismissals with prejudice swelled the ratio of
case where that stance essentially amounts to bad faith or
such dismissals to 72.4%. The remaining four instances of
is wholly unreasonable in light of the probable objective
claimant loss (13.8% of 29) occurred either after a federal
value of the matter. Note, however, that for defendants as
court trial (three cases) or after an EEOC hearing (one).
well as plaintiffs, non-economic motives may ground a
Finally, the employee prevailed a scant four times out of
refusal to settle on sensible terms. Some employer deci-
29 tries (again, 13.8%), three times in federal court trials
sion makers, like some claimants, are guided by emotions
and once in arbitration.
like anger or hurt and, at least initially, insist: “Millions
for Defense, Not One Cent for Tribute.”14 Or they may be
Evaluating My Findings acting on financial considerations that extend beyond the
The more extreme the results of even a small sample, complaint at hand: for example, the wish to gain a reputa-
the likelier they are to be reliable. This insight can be ap- tion for never settling in the view that this will save them
plied to the 86.6% overall rate of defeat, which befell claim- money in the long run by deterring future lawsuits.
ants after a mediation with me failed to produce a resolu- Having explained my non-conclusion, that the plain-
tion; the same should hold true for its converse, the merely tiff’s best option is always to resolve the dispute at media-
13.8% rate of success. What do I draw from these results? tion if he or she can, I now turn to my actual conclusion:
if, for whatever reason, he or she decides to prosecute
his case till adjudication by a judge or a jury, he or she is
extremely likely to lose. Of course, not settling at media-
12 NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1tion, even if given a “ballpark” offer, does not necessar- However, I stress that I do not criticize lawyers as a
ily indicate a firm resolution never to settle, as I have group for resisting reality testing—at least, initially. It is
discussed. Yet mediation often affords the best opportu- only human nature to view one’s own cause with rose-
nity for a complainant to achieve closure on acceptable colored glasses, and attorneys are human too. Such bias is
terms. After all, a disinterested professional is helping the a major reason mediators are needed so often.20
parties. And, if the mediation is early, the employer, or its
liability insurer, will not have expended a lot of money
Why Did My Failed Cases Not Settle in Mediation?
on litigation—which might otherwise, more fruitfully,
have contributed toward a settlement. Finally, I looked at my case notes to see if I could
detect any pattern to the causes of failure in my media-
tions. Although each matter presented its own peculiar
My Reaction to My Findings dynamics, more often than not actions taken by the claim-
Naturally, I was unsurprised to learn that complain- ant’s side scotched resolution. When impasse occurred, it
ants claiming employment discrimination face daunting was frequently because either the employee started “too
obstacles; indeed, I have often said that expressly, and it high”—at times, so much so that the employer declined
is hardly a novel insight.15 What did shock me somewhat, to respond, thereby depriving the plaintiff of the chance
at first, was the height of the mountain a plaintiff would to elicit a potentially acceptable offer—or, in the end, held
have to scale in order to achieve victory. out for “too much.” I use the quoted normative terms not
just because 20-20 hindsight revealed that the game was
But, on reflection, I should not have been astonished not worth the candle, but also because my evaluation of
since my own previous research shows that, on average, the case at the time indicated that I believed the plaintiff
plaintiffs have a roughly 38.9% chance of surviving a was taking a very big gamble and making a mistake (at
summary judgment motion (at least, in our local federal least, if she hoped to maximize her monetary gain).
courts)16 and a 30.0% chance of obtaining a favorable
verdict at trial.17 In other words, the combined overall Sometimes, the lawyer overvalued the case;21 often
rate of success is a mere 11.7% (.389 times .330), even less the client did, disregarding the mediator’s cautions and,
than the 13.8% probability revealed in this account of my I suspect, her attorney’s advice. Occasionally, both client
failed mediations. In addition, focusing just on sum- and counsel had drunk the same Kool-Aid, or the latter
mary judgment, the 65.5% rate of loss experienced by my may have feared losing the former’s confidence by push-
claimants—which can be inversely expressed as a 34.5% ing too hard. In no small number of instances, however,
survival rate—comes close to the 38.9% rate documented defendants created the barrier to settlement by taking a
in my earlier study of the subject.18 no-pay position or offering only nuisance value. While
later events (often in the form of summary judgment)
may have validated their view of the complaint’s absence
Are There Any Lessons Here?
of merit, usually any consideration of their prospective
A key lesson for claimants and, thus, for mediators, attorneys’ fees would have justified offering more.
too, is that a realistic assessment of early cases must take
explicit and serious account of the odds of defeating
summary judgment, not just those of prevailing at trial:19 A Note on Plaintiffs’ Few Victories on the Merits
taking a percentage of a percentage rapidly yields a very In the three federal trial victories for the complainant,
small chance of ultimate victory. Although one might he or she initially got a blow-out verdict: millions of dol-
think this conclusion obvious, certainly to experienced lars. Even following post-trial motions and appeals, and
counsel, the mediator ordinarily needs to work hard to exclusive of attorneys’ fees and costs, the plaintiffs ended
focus lawyers, not to speak of clients, on the negatives of up, respectively, with approximately $500,000, $900,000 and
their cases. These include not only any problems spe- just shy of $2,750,000. In the latter two cases, one involving
cific to the matter at hand but also ones presented by the a very appealing disabled claimant and the other, a victim
legal system in general: as pertinent here, an arguably of repeated and gross sexual harassment, it was evident to
too-great predilection to cut employees off at the pass, me from the outset that the defendants, notwithstanding
denying them an opportunity to present their proof to seasoned counsel, had seriously underestimated the risks
the finder of fact. (Anecdotally, this tendency may be less they faced. (Yet, in addition, as I contemporaneously noted,
marked in state court than federal.) I recommend that, referring to the harassed woman: “I think maybe this is a
for any complaint already filed and assigned to a judge, case that must be tried because plaintiff feels she has noth-
counsel try to ascertain the jurist’s record in deciding ing to lose and wants to roll the dice and ‘get back at’” her
summary judgment motions in employment disputes. As oppressor.) Indeed, in the matter of the young man with
preparation for my mediations, I frequently do so myself a disability, the defense did not deign to bargain at all. By
in an effort to supplement my overall emphasis on the contrast, the race discrimination claimant who eventually
risk of pre-trial dismissal. won half a million dollars may just have gotten lucky. He
had made a demand so high—though, in retrospect, not
irrational—and his attorney behaved in such a toxic man-
NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1 13ner at the mediation that the employer’s offer of only low of requests for relief by federal sector employees, who remain on
nuisance value was understandable, if misconceived. the job while litigating much more often than other plaintiffs.
8. Cf. Stephen B. Burbank, Drifting Toward Bethlehem or Gomorrah?
Vanishing Trials and Summary Judgment in Federal Civil Cases, 1
Conclusion J. Empirical Legal Stud. 591, 593 (2004) (noting temptation to
substitute unreliable data for no data).
Having excavated the data yielded by my practice, I
9. Altogether, including the matters that I resolved, I am aware of 368
hope that this exploration might stimulate other neutrals settlements; they constitute 84.6% of the initial database. Since we
to do the same. Because of the need for confidentiality, have a culture of settlement, this outcome is unsurprising.
we mediators cannot discuss our cases anecdotally in any 10. That being said, I think that plaintiffs tend to overestimate the chance
detail, and especially not in print. Analyses of aggregate, of turning up the proverbial smoking gun in discovery. They also,
anonymous data, such as I have conducted before,22 may at times, place too much value on what they perceive as smoking
generate broader-based insights helpful to other practi- guns, which they already have by the mediation. Increasingly, these
come in the form of contemporaneous tape recordings. Even when
tioners as well as scholars, but they lack the specificity of audible, they are not always as devastating as employees and their
a link to a single source. The present piece amounts to an lawyers believe.
effort to bridge the gap between the particular and the 11. The Second Circuit’s requirement of court approval of FLSA
general: one professional’s mining of the raw material of settlements, see Cheeks v. Freeport Pancake House, Inc.,796 F.3d 199 (2d
her mediations of employment conflicts. The exercise has Cir. 2015), means that, by contrast, in most wage and hour cases
there will be a public record of the parties’ agreement.
given me considerable personal satisfaction. If it has also
fulfilled my aim of refining this ore into a modest tool for 12. GOL § 5336 (effective, as amended, Oct. 11, 2019).
others, so much the better. 13. Typically, the claimant will have a contingent fee arrangement with
her attorney.
Vivian Berger is a Nash Professor of Law Emerita 14. See Vivian Berger, They’re Human, Too: The Care and Feeding of
Defendants in Employment Mediations, 39 NYSBA Labor & Emp. L.J.
at Columbia Law School and a longtime mediator and 5, 6 (Winter 2014).
arbitrator. She has been certified as an Advanced Practi-
15. See generally Vivian Berger, Book Review, 43 NYSBA Labor & Emp.
tioner in employment mediation by the Association for L. J. 18 (Spring 2018) (reviewing Ellen Berrey, Robert L. Nelson &
Conflict Resolution. Laura Beth Nielsen, Rights on Trial: How Workplace Discrimination
Law Perpetuates Inequality (2017)); see also id. at 18 (“It is no secret
Endnotes to anyone knowledgeable in the field that employment plaintiffs
have a very difficult row to hoe ....”) (citation omitted).
1. “P.I.N.S.” stands for Persons In Need Of Supervision. These are
young people over whom their parents have lost control; truancy is 16. See Berger, Finkelstein & Chung, supra note 4, at 60.
the most common complaint. 17. Trials Update, supra note 4, at 40.
2. Even in such instances, mediation can, to be sure, have many 18. See Berger, Finkelstein & Chung, supra note 4. More granular analysis
beneficial effects; some are emotional, others pragmatic. For reveals that 22 of the 29 cases in our data base were litigated in
example, the reality testing that occurred in this setting may have federal court. These accounted for 16 (72.7%) of 22 summary
left its mark on the parties and counsel, influencing later, more judgment dismissals or, conversely, 27.3% of surviving federal
successful, bargaining. Thus, the term “failure” is a bit overbroad, cases—a figure less close to, and lower than, the statistic derived
although convenient. from my case database: 38.9%. On the one hand, the former, 27.3%,
3. See http://vbergermediator.com/mediation/index.html (Selected is more on point since my summary judgment study also used
Articles on Mediation, Employment, and Civil Rights). a federal court data base. On the other hand, the latter, 38.9%,
comprised represented cases only, and one of my former employee
4. See, e.g.,Vivian Berger, Winners and Losers: Employment Discrimination clients was pro se at the time of the motion. That status would
Trials in the Southern and Eastern Districts of New York: 2016 Update, have lowered his chance of avoiding dismissal. See id. at 55 (Table
42 NYSBA Labor & Emp. L.J. 39 (Spring 2017) [hereinafter 1). Furthermore, the smaller the universe of cases considered (22
Trials Update]; Vivian Berger, Punitive Damages in Employment versus 29, the denominator in our ratio), the less likely that any
Discrimination Cases: Myth or Reality?, 37 NYSBA Labor & Emp. L.J. conclusions drawn from it can be generalized. This caveat applies
6 (Fall/Winter 2012); Vivian Berger, Michael O. Finkelstein & Kenneth in spades to my finding here that four out of eight complainants
Cheung, Summary Judgment Benchmarks for Settling Employment eventually won on the merits—six after trial in federal court and
Discrimination Lawsuits, 23 Hofstra L. & Emp. L.J. 45 (2005). two at an arbitration hearing—a 50% win rate, in contrast to the
5. In keeping with my usual custom of focusing on matters arising 30.0% figure in my earlier study. See Trials Update, supra note 4, at 40.
in Second Circuit states (the better to educate local practitioners), I Moreover, the latter did not examine arbitration awards.
excluded from my “universe” a few cases from other jurisdictions 19. Naturally, my underlying assumption is that the employer will
like New Jersey. make a summary judgment motion. While I lack statistics on the
6. Michael O. Finkelstein, Bruce Levin, Ian M. McKeague, and Wei- actual prevalence of such motions, experience teaches that they are
Yann Tsai, A Note on the Censoring Problem in Empirical Case-Outcome extremely common in employment cases when the matter has not
Studies, 3 J. Empirical Legal Stud. 375, 375 (2006). And on account been dismissed or otherwise resolved by the close of discovery.
of changes in New York City law during this period that favor 20. I sometimes tell mediation participants that I am not necessarily
the discrimination plaintiff (a term I use interchangeably with the smartest person in the room—nor am I, surely, the most
“claimant” or “complainant”), a relative deficit of later cases could knowledgeable about their conflict. But, happily, I do not need to
introduce additional problems of sample bias. Given the extreme be, because I am surely the most neutral.
paucity of trials, these would likelier affect summary judgment
outcomes. Happily, the matters that I know to be still outstanding 21. A few plaintiffs’ firms have a policy of starting in the stratosphere.
amount to only 2.8% of the total. Usually, though, the attorney will come down to earth if the opening
demand does not cause the defense to simply refuse to counter.
7. Discrimination cases can look very different from each other as well.
For instance, non-monetary relief is often a more significant feature 22. See supra text at note 4 .
14 NYSBA Labor and Employment Law Journal | 2021 | Vol. 45 | No. 1You can also read
