LABOR & EMPLOYMENT LAW
CHIEF Georgia Pestana
DEPUTY Paul Marks
The Labor & Employment Law Division represents the City as employer of over a quarter-million workers. The
Division handles a variety of matters including First Amendment retaliation; gender, race, age, and disability
discrimination; and civil service law issues. Attorneys have successfully litigated cases brought against every City
agency, as well as lawsuits brought against high-ranking City o?cials.
Defending FDNY Hiring Practices
Division attorneys continue to handle an ongoing, high-profile lawsuit brought by the U.S. Department of Justice and a group of
firefighters who claim that civil service tests had a discriminatory impact on Black and Hispanic applicants for firefighter positions.
However, the tests in question were last administered in 1999 and 2002, and the FDNY implemented a recruitment campaign in
2006 that attracted a record number of minority applicants. The City has maintained its strong conviction that quotas are not a suitable
hiring practice, and has defended the FDNY’s efforts to continue expanding the diversity of its ranks without engaging in quota-hiring.
Keeping Teachers’ Personal Politics Out of Schools
Division attorneys prevailed in Weingarten, a case challenging the Chancellor’s regulation prohibiting teachers from wearing political
campaign buttons in school buildings. The United Federation of Teachers (UFT) sought a preliminary injunction against the regulation on
First Amendment grounds a few weeks before the 2008 presidential election. The UFT argued that the teachers had a free-speech right
to wear the buttons and that students would “spontaneously understand” that these buttons were not part of the teaching curriculum. In
contrast, the Department of Education argued that political displays were “inconsistent” with its educational mandate.
Representing the City in a High-Pro?le Bridge Painters Case
The Division represented the City and the Department of Transportation (DOT) in an action commenced by the U.S. Attorney’s Office
for the Southern District of New York. The lawsuit alleged violations of federal law in connection with gender discrimination complaints
filed with the Equal Employment Opportunity Commission (EEOC) by four unsuccessful female applicants for City bridge painter jobs.
According to the complaint, the DOT engaged in a pattern or practice of discrimination against women with respect to hiring for the
physically taxing position. The four unsuccessful female applicants received right-to-sue letters from the EEOC and, with their local union,
intervened in the lawsuit. The court dismissed the claims of the individual plaintiff-intervenors but found that the federal government had
met its burden to show a discriminatory hiring pattern and practice by the City and DOT. The Department has hired one of the women
(the only one who still wanted to be a bridge painter) and subsequently reached a settlement with all four.
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Practice Spotlight
Allowing DOE to Reassign or Discipline Teachers Who Perform Poorly
Although public schoolteachers are afforded significant job protections, the Division works to ensure that
when they perform badly or engage in misconduct, the DOE can take action to respond appropriately,
including job termination. As an example, Division attorneys won a defendant’s verdict in a 2007 case,
Saunders, brought by a former teacher who claimed she was harassed and disciplined by her supervisors
for discriminatory reasons. The plaintiff was a photography teacher who taught at the High School of
Graphic Communication Arts in Manhattan. In 2004, she was assigned to the Absent Teacher Reserve
pool after the course she had been teaching was discontinued due to lack of student interest. There she
exhibited poor teaching, insubordination, and attendance issues. After she was disciplined, the plaintiff
filed a false police report claiming assault by her superior. Other issues arose until she was removed
and reassigned, at which point she further disagreed with the DOE over a requested and denied
half-day accommodation. In her lawsuit, the plaintiff claimed that ageism and racism were behind her
charges, reassignment, and the refused accommodation. However the jury disagreed, finding that the
DOE had acted appropriately.
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