November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Peter R. Schlam

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; among the topics covered were Americans with disabilities, gender discrimination, and child abduction.

Americans With Disabilities

In Epter v. New York City Transit Authority, 99 CV 3050 (EDNY, Jan. 31, 2001), Judge David G. Trager, granting plaintiff's motion for summary judgment on liability only, held that the Transit Authority's former practice of requiring an EKG for all over-40 applicants for a Station Supervisor, Level I position violated the ADEA.

Plaintiff was a Railroad Clerk for the Transit Authority (TA) who took a civil service exam to become a Station Supervisor, Level I. The Station Supervisor, Level I position requires supervision of Cleaners and Railroad Clerks performing duties such as sweeping, scrubbing and washing subway stations and carrying refuse; contact with violent persons; work in cold and hot temperatures; and exposure to soaps and detergents. A Station Supervisor, Level I must perform duties while standing, walking, climbing stairs or ladders and walking on tracks. The TA required all candidates for the position to pass a physical examination, and additionally required all candidates over 40 to undergo an EKG. Plaintiff refused to undergo an EKG and was not promoted in 1994. Some years later, in June 1998, the TA eliminated the medical examination requirement and plaintiff was promoted to Station Supervisor, Level I. In November 1998, plaintiff resigned from that position and returned to his old position in order to work closer to home.

First, Judge Trager determined that the TA policy facially discriminated against all people over the age of 40, because there was undisputed direct evidence that disparate treatment was age dependent. In the court's view the TA's conduct and policy also constituted intentional discrimination. Even though the TA offered some evidence suggesting that its age generalization had a basis people over 40 have more heart disease than people under 40 Judge Trager nevertheless found that the generalization did not apply to every individual member of the protected class. Thus, the TA could not use age as a standard for requiring an EKG and must pursue its goals in a more individualized and careful manner. Slip op. 11.

Second, Judge Trager concluded that the TA's discriminatory policy was not justified as a "bona fide occupational qualification" (BFOQ) under the ADEA. As the court noted, an employer may maintain an "age-salient" policy if it could demonstrate that age was being use as a BFOQ reasonably necessary to the normal operation of the particular business. To that end, an employer must show either that it has a substantial basis for believing all or nearly all employees above a certain age lack qualifications required for the position or that reliance on an age classification is necessary because it is highly impractical for the employer to ensure by individual testing that its employees will have the necessary qualifications for the job.

Judge Trager determined that the TA had not met either prong of this test. Noting that the BFOQ exception was meant to be extremely narrow, the court found no substantial basis for believing that all or nearly all employees over 40 lacked the required qualifications for Station Supervisor, Level I or that all or nearly all employees over 40 had any significant likelihood of having a heart condition that would prevent them from performing required duties. In addition, lack of physical preparedness would not pose a risk to the general public. Rejecting the TA's contention that the strenuous nature of the Station Supervisor, Level I position posed a risk to the employee, the court stated:

even if it is true that the Station Supervisor, Level I position is more physically demanding than the job of Railroad Clerk, it is not apparent, without more medical evidence, that the risk of heart problems is any more severe for people receiving what can be tendentiously described as a "daily dose of healthy exercise" than for people who, by and large, spend their days sitting in a small booth, dispensing tokens. Slip op. 17.

As Judge Trager also observed, the TA tests employees under 40 on an individual basis and it had made no claim that using individual testing would be impractical or costly. Indeed, the costs would be greater if all employees over 40 were given an EKG. (With younger employees, the TA gave an EKG only if the physical exam indicated a problem or the employee had a problematic medical history.) Nor did the TA demonstrate any danger to TA operations or the general public if a Station Supervisor (as opposed to a police officer) had a heart attack.

Gender Discrimination Olympics

In Sternberg v. U.S.A. Karate-Do Federation Inc., 99 CV 2843 (EDNY, Nov. 20, 2000), Judge Jack B. Weinstein decided an issue of first impression regarding the rights of female athletes to compete in the Olympics. Plaintiff is a member of the U.S. Women's Kumite (Karate sparring) Team, which was withdrawn from the World Championships. Plaintiff eventually brought this suit alleging violations of Title IX of the Education Amendment of 1972, 20 U.S.C. 1681 et seq. (Title IX); the Amateur Sports Act of 1978, 36 S.C. 22051 et seq. (Sports Act); and the Fifth Amendment's Equal Protection guarantee. Plaintiff's allegations were found sufficient to withstand a motion to dismiss.

The U.S. Olympic Committee, a not-for-profit corporation chartered pursuant to the Sports Act, recognizes the U.S. National Karate-Do Federation (federation) as the national governing body for karate. While the federation does not receive direct federal funding, in 1999 the Olympic Committee provided over $40 million to all national governing sports bodies, including the Karate Federation. Plaintiff alleged that the Karate Federation received funding from the Olympic Committee and thus from the U.S. government.

Plaintiff, a member of the Karate Federation, received training in a federation camp and was selected onto the Women's Kumite Team. In 1998, she traveled to Brazil, expecting to compete for a position on the Team in the World Championships. Prior to the competition the federation withdrew the Women's Team. The Men's Team stayed on to compete. According to plaintiff, the coach of the Women's Team told her that the withdrawal occurred because two of her teammates refused to participate. But those two team members allegedly denied any such refusal, and indicated that the coach did not want the Women's Team to participate for fear of risking injury to the women.


Plaintiff also alleged that the federation did not conduct an impartial and unbiased inquiry into her complaint.

Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Plaintiff claimed that the federation's mission and activities are in part educational, and that the federation indirectly receives money from the government through Olympic Committee grants. These allegations, the court found, stated a valid Title IX claim.

As to the equal protection claim, Judge Weinstein noted that withdrawal of an official U.S. Team from the World Championships for reasons of gender discrimination may be a "governmental decision." And, in light of plaintiff's allegations that the federation indirectly received federal funding and was carrying out a federal program, the federation might have acted under color of federal law.

The purpose of the Sports Act is to "encourage and provide assistance to women in amateur athletic activity." The federation designates individuals to represent the U.S. in international amateur athletic competitions that meet the requirements of the Sports Act. As Judge Weinstein observed, the federation is undisputedly a national sports governing body subject to the Sports Act and its anti-discrimination provisions.

The court then concluded that a private right of action may be implied under the Sports Act. In this regard, Judge Weinstein pointed to several factors: (1) plaintiff is "one of the class for whose especial benefit the statute was enacted "; (2) a private remedy is consistent with the "underlying purpose of the legislative scheme"; and (3) the subject matter does not involve an area traditionally relegated to the States. See, e.g., Cort v. Ash, 422 U.S. 66 (1975).

Another factor to be considered was any indication of legislative intent to create or deny a private remedy. Id. As Judge Weinstein stated:

Prior to passage of the Sports Act, Congress removed the athlete's "bill of rights," which would have explicitly granted a private right of action to anyone who was discriminatorialy denied the right to participate in specific events. This history has led some courts to conclude that plaintiffs have no private right of action under the Sports Act. [Citations omitted]. Yet the "bill of rights" might have been eliminated because it was too detailed and Congress was reluctant to interject itself too deeply into sports concepts that were still developing.

Arguably, Congress struck the "bill of rights" to prevent countless lawsuits from disgruntled would-be athletes Fear of such lawsuits could hinder teams from making decisions based purely on athletic ability. Thus, Congress might simply have sought to eliminate a broad private right of action. There is no indication, however, that the athlete's "bill of rights" was removed from the legislation to prevent women from exercising a private right of action under the Sports Act in cases involving gross gender discrimination of the type plaintiff alleges

Finally, Judge Weinstein held that the Sports Act claim was not barred by plaintiff's failure to seek binding arbitration. The statute allows for arbitration but does not require it. Administrative remedies, moreover, would not address plaintiff's claim for monetary damages, and the administrative body of the grievance procedure allegedly demonstrated bias.

Child Abduction

International Child Abduction Remedies Act. In Christo Norden-Powers v. Inga Karin Loretta Beveridge and John Beveridge v. Inga Karin Loretta Beveridge, 00 CV 7478 & 7480 (EDNY, Dec. 22, 2000), Judge Nicholas G. Garaufis considered the consolidated applications of two fathers, under the Hague Convention and the International Child Abduction Remedies Act, 42 U.S.C. 11601-10 (ICARA), to have their children returned from New York to Australia.

Respondent mother, a citizen of Germany, had two children with one petitioner (in 1987 and 1988), and one with the second petitioner (in 1994). Petitioner John Beveridge had express joint custody rights under a 1994 Australian consent order, and Petitioner Norden-Powers enjoyed parental and visitation rights under a 1999 Australian Family Court order and Australian family law.

In September 2000, respondent took the children to Long Island, N.Y., without their fathers' knowledge or consent. She also purchased airline tickets for herself and the children to travel from New York to Germany on Dec. 23, 2000.

Australian federal authorities located the children in New York and, in December 2000, Judge Garaufis issued an order directing respondent to show cause why the children should not be returned to Australia. A hearing was held on Dec. 21 and 22, 2000.

Judge Garafuis observed that, under ICARA, petitioners are obliged to demonstrate, by a preponderance of the evidence, that the removal of the children was effected: (a) "in breach of rights of custody attributed to [[petitioners] under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised or would have been so exercised but for the removal or retention." Slip op. 5, quoting Hague Convention, Art. 3. If this is shown, the children must be returned, unless respondent can demonstrate that one of several exceptions applies.

The court concluded that petitioners had the "rights of custody" under Australian law, as required by the Hague Convention, after assessing "the Australian judicial decisions sanctioning Petitioners' exercise of their rights, the agreement between Respondent and Petitioner John Beveridge, and the operation of Australian law as evidenced by the clarifications of the Family Court and Australian Attorney General." Slip op. 10. It therefore proceeded to consider whether any exception applied to prevent return of the children.

Judge Garafuis took substantial evidence concerning whether each petitioner had actually exercised his rights of custody in Australia. The court reviewed each father's attention to his children's welfare including education, health care and general well-being before concluding that "[t]he most generous reading of the record in favor of Respondent shows that Petitioners have been active, if not dogged, in their exercise of their rights of custody." Slip op. 11. Respondent's reliance on an asserted failure to exercise custody rights was therefore without merit.

The court declined to apply other exceptions as well. First, it found that, although "separation from any parent and travel back to Australia may be unsettling to these Children, Respondent has failed to prove by clear and convincing evidence that return presents a grave risk of harm." Slip op. 10. Finally, exercising its discretion to consider the children's preferences, the court interviewed them in camera and reviewed a report by their joint guardian ad litem. The court found that, while the children "expressed a desire to stay with respondent , their voiced preferences did not rise to the level of an 'objection to return' as understood under the [Hague] Convention." Slip op. 12. Rather, "the most significant issue was the desire of all three Children to say together." Ibid.

Having found that "Respondent's removal of the Children violated the Hague Convention and no exceptions apply," Judge Garaufis ordered their return to Australia.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[Reproduced with permission from New York Law Journal Volume 225, Friday, February 9, 2001.  Copyright 2001 ALM Properties, Inc.  All rights reserved.]