The workplace should be a setting in which every employee feels comfortable and receives the support needed to do her or his job. Unfortunately, not every office or facility is hospitable to all its employees, and threats to worker safety can be far less obvious than hazardous conditions. An employee may be targeted due to her or his sex or gender, race or ethnicity, religion or creed, age, or ability, experiencing unequal treatment. While this disparity is not inherently unlawful, outright discrimination and harassment can entail a host of consequences.
Harassment and discrimination in the workplace provide the grounds for legal action. If you have felt continually unsafe at work due to a coworker’s actions, and if you can prove that your coworker’s conduct was in response to an aspect of your identity, you may be able to file a complaint. The advice of an attorney experienced in matters of New York employment law will allow you to wade through the complicated process of filing a complaint and handling the fallout. No employee should have to fear for her or his well-being or security merely because of a colleague or supervisor’s inappropriate behavior.
Discrimination and Harassment in the Workplace
What Is a Hostile Working Environment?
On its own, a hostile work environment claim is not really a claim. Instead, any claim must to be tied to or connected with some illegal act. If the hostility that is happening or the hostile work environment that is being created is due to an employee’s sex, gender, race or ethnicity, or religion, or there is sexual harassment, the employee may have a claim. Hostile work environment claims are thoroughly debated by lawyers. A sexual harassment claim is a good start, but it does not conclusively prove the existence of a hostile work environment.
My Employer Treats Me Differently Than Everyone Else
In most cases, it is totally lawful—though perhaps unfair and not dignified—for your employer to treat you and another co-worker entirely differently for no good reason. On the other hand, it is not lawful for an employer to treat you and another employee differently because of your membership in a protected class, such as your gender, race, religion, disability, age, or national origin. In New York State, there are also extra levels of protection for marital status and sexual orientation. It is important to get an attorney involved if you feel that your employer is treating you differently specifically because you are a member of a protected class.
I Feel That Someone Is Discriminating Against Me at Work
It is not illegal to treat someone differently in the workplace. When the issue is based on personality conflicts, poor management, stupidity, or bias related to some personality trait, it is not illegal. It is not at all illegal in a workplace to dislike another person. However, if the focus is on an illegal factor, the employee may very well have a claim of employment discrimination. These illegal factors have broadened considerably over the course of the last 15 years, and they can include age, race, gender, religion, marital status, familial status, genetic background, and disability. If the focus of an employee’s complaint relates to one of those illegal factors, he or she may have a claim of illegal discrimination in the workplace.
The Age Discrimination in Employment Act
Age discrimination in the workplace is fairly common, and it is difficult to prove. Today’s statutes, and the courts that have interpreted the statutes, make it harder to prove age discrimination than it was in the past. It is also harder to argue those cases in front of a jury. For age discrimination claims, as with most discrimination claims, it is extremely helpful to have “smoking gun” evidence of age discrimination.
A 51-year-old who has been replaced by a 28-year-old does not automatically have a claim. The employer’s defense may be that the job description changed. By making these claims, the employer is raising a factual distinction as to why the job is not the same job as it was before.
It certainly helps to have some sort of memorandum, email, or even conversation in which someone is making pointed, ageist comments. “Boy, Bill, when are you going to retire?” and “Boy, Jane, aren’t you getting a little old for all this driving?” are smoking guns. Having something to work with certainly helps with age discrimination claims; not everyone who is over the age of 40 and eligible under the law has an automatic claim when he or she is let go.
The Americans With Disabilities Act
Two basic types of claims fall under the Americans with Disabilities Act. The first relates to a person who is being treated differently because of a partial disability, just as if that person faced different treatment due to her or his sex or religion. The other type addresses an employer’s failure to provide what the courts call reasonable accommodations for that person’s partial disability. Claims of disability involving only partial disability are often quite difficult to prove because the employee had already been hired. To illustrate, a receptionist may have had a slight vision problem when he or she was hired, but the employer later fired the employee for the vision issue. Those claims are not common, but they do exist.
Many issues arise when people come back to work after an injury. These can sometimes be considered discrimination based on the partial disability relating to the injured body part. What follows are claims around the employer’s failure to accommodate a disability. An employer has a duty to provide reasonable accommodations for people who are otherwise able to perform the essential functions of their jobs.
Disputes arise concerning what a person can and cannot do with respect to the essential functions of her or his job. Other disputes arise around whether it is reasonable to expect the employer to make, hold, or switch jobs for that employee to accommodate the injury. Is it reasonable to accommodate an employee’s recuperation for several months?
The Americans with Disabilities Act is not as efficient as would be expected because there are always mountains of disputes over what is and is not reasonable. There are many case law decisions, or precedents, and though many employees consult our office about these decisions, we must reject most of these claims.
Discrimination Based on Religious Belief
Religious harassment is treated similarly to sexual or racial harassment. If somebody is being mocked or otherwise mistreated in the workplace because of her or his religion, there are grounds for a potential claim. The key in these cases is that a person cannot be treated differently due to religious beliefs. If harassment occurs, the same principles and the same case law decisions apply as would be applicable in a racial discrimination claim.
My Supervisor is Engaging in Inappropriate Conduct
It is not unlawful for a boss to be mean or behave in an irksome manner. If the boss’s conduct rises to the level of sexual harassment, harassment, or inappropriate behavior on the basis of your gender, race, religion, age, or disability, that conduct is against the law. You should reach out to an attorney right away if you find yourself in this situation in order to stop that conduct and protect your interests.
Can a Small Business Be Held Liable for Anti-Discrimination Laws?
The federal laws regarding discrimination only apply to employers of 15 or more people. To be sued in federal court in cases referred to as a Title 7 claim—i.e., those involving age, race, sex, and certain other kinds of claims—an employer would have to have 15 or more employees. To be sued under the New York State Human Rights Law in state court, however, a business would have to have at least four employees. There can be litigation in which the lawsuit was aimed at trying to figure out whether the employer had four employees, but in any event, the minimum number is four.
In 2016, the law was modified as it relates to claims of gender discrimination in the workplace: New York State declared that even an employer who has only one employee can be sued for gender discrimination. That law was modified to cover small, one-person shops where employees, most often women, were subjected to sexual harassment by the business owner. However, the New York State Assembly stated that the authority of this law is limited to gender discrimination claims; claims regarding other forms of discrimination are still only valid in businesses with at least four employees.
Sexual Harassment in the Workplace
Under current laws, co-worker sexual harassment is treated differently than sexual harassment by one’s boss. A boss is in a position to hire you, fire you, change your job duties, alter your job title, and reduce your wages. Sexual harassment by a boss often binds the employer, just as if the employer himself were doing it. If the offending party is a co-worker, however, the case is treated less severely.
Most employers have a sexual, racial, or general harassment policy, and it is important that you comply with that policy. The employer has the right to claim a defense and deny responsibility if he or she has not been notified of the harassment. If the issue has not been brought to the attention of the employer, that employer is often found innocent even though you have been subjected to racial, religious, or sexual harassment.
Receiving Unwanted Sexual Advances at Work
Sexual harassment is unacceptable conduct. It is frustrating and sad that this occurs at the workplace, but it does. It is absolutely against the law to harass an employee sexually. If that happens to you, you have a claim against your employer and the manager, supervisor, or co-worker who is sexually harassing you.
Sexual harassment can be physical, such as unwanted touching, but it can also entail inappropriate comments, looks that make you feel uncomfortable, or creating an overall work environment that is sexualized, uncomfortable, offensive, and wrong. If you feel that you are being sexually harassed at work, you probably are. You should reach out to our office right away so that we can stop that unlawful behavior.
Pursuing Legal Action and Filing a Complaint
How Can I File a Complaint Against My Employer?
It is important that the employer get the benefit of the doubt, and employees should speak to their employers if they are mandated to do so according to their employee handbook. On the other hand, employees may naturally be concerned about retaliation if they do complain to their employers. This presents a double-edged sword: it can be uncomfortable to bring to the attention of the employer the fact that one’s boss engaging in harassment. If the employer does not know about harassment, he or she cannot be held accountable. If the harassment is brought to the employer’s attention and there is no action taken—and employers are obliged to conduct a timely investigation and take appropriate corrective action whenever an allegation of harassment is brought to their attention—an employee may have a legitimate grievance.
There are several avenues by which an employee can file a complaint against an employer. One can file a claim with the EEOC—the Equal Employment Opportunity Commission—through the federal government or via the Division of Human Rights, a state agency. A claim can also be brought in New York State or federal court. There are a multitude of nuances, rules, and administrative requirements involved in bringing a claim against an employer, so it is imperative to ask an attorney to bring a claim in the ideal place to obtain the best result.
New York Employment Law Statute of Limitations
There are two different routes that claims may take. On the federal side, the statute of limitations applies to claims filed against employers with at least 15 employees. The state side also has laws that apply to discrimination and most termination issues.
When pursuing action through federal court, an employee must first go through the Equal Employment Opportunity Commission. In New York State, an EEOC claim must be filed within 300 days. There are two ways to bring a state claim: through the New York State Division of Human Rights, and those claims must be filed within a year, or to go straight to court.
It is not possible to immediately begin court proceedings on the federal side, but on the state side, the statute of limitations for claims of racial discrimination, reverse discrimination, or gender discrimination is three years. This three-year statute of limitations is an article of the New York Executive Law that is otherwise known as the Human Rights Law.
How an Employer Should Handle Discrimination and Harassment Complaints
Upon receipt of a legitimate harassment complaint, the employer has three obligations. One is to take a full statement from the person making the allegation. Second, the employer must conduct a timely investigation. Third, after deciding whether harassment occurred, the employer must take appropriate corrective action.
An investigation entails taking statements from all witnesses, especially from the person making the complaint. Then, the employer must weigh the reports. If an employer believes that the harassment did in fact occur, the appropriate corrective action may be to fire the harasser, though this is not always necessary. Appropriate corrective action is a legal expression over which lawyers have argued for 20 years, and although it does not always have to include termination, this is what sometimes happens.
Steps to Take After Receiving a Complaint from the EEOC
As an employer, one should not ignore any charge, such as a complaint from the EEOC that may be received. It is important to respond in a timely and thoughtful manner in all dealings with the EEOC. However, an employer should not respond to the EEOC without consulting an attorney, who will have information about the minutiae of the employee’s claim to be targeted in the response. No employer wants to inadvertently say something in a response that could hurt her or him before the EEOC or at trial.
In the event that an employer receives a complaint filed by an employee through the EEOC or the New York State Division of Human Rights, the most important thing to remember when dealing with one of those agencies is to cooperate.
Both agencies ask for many different documents, but the best thing that you as an employer can do is to provide the documents without delay. An employer should demonstrate a spirit of cooperation with the investigators because they have the power to rule against her or him. Afterwards, you will have to accommodate any meetings that the agencies may schedule. There will likely be an investigative information-gathering session in which the claimant and the company are both present. The employer and the employee will not be allowed to talk to each other, they will speak in each other’s presence.
You will have to prepare yourself and your witnesses in advance of that meeting in terms of demeanor, what to say, and what not to say. An employer should be prepared to mediate right on the spot and to talk settlement, even early on. Employers must demonstrate that they are willing to be cooperative and work with the agencies. Sometimes that includes making modest settlement offers early in the process.
Recoverable Damages in a Discrimination Claim
The basic law governing New York employment law and discrimination claims used to be limited to recovery of lost wages, either past, prospective, or future. Over time, the rules for these claims have expanded to allow the recovery of attorney’s fees in the event that a claim is successful.
About 25 years ago, the laws were amended to allow for what lawyers call emotional distress damages or mental anguish damages. Those kinds of damages are now recoverable under both federal and state law. From time to time, however, we must consult an economist to figure out what a person has lost. Prospective lost wages can be hard to estimate; when working with people in their 50s who will face difficulty when reentering the workforce, economists can extensively debate those prospective future lost wages.
Discipline, Retaliation, and Termination in New York Employment Law
What Are My Rights as an Employee When I Am Being Disciplined for Misconduct?
Employees do not have many rights when they are being disciplined. If you are an employee-at-will, your employer can fire you, suspend you, reprimand you, or write you up for misconduct. The situation becomes trickier if you and another employee are engaging in the same behavior, but only one of you is getting written up. It is further questionable if you happen to be a member of a recognized protected class and the other employee is not. If you are being treated unfairly even though you and another employee are doing the same thing, you might want to call an attorney to make sure your rights under state or federal law are not being violated.
Unlawful Retaliation in the Workplace
The issue of unlawful retaliation in the workplace comes up quite often in my practice. Retaliation is being punished as a result of bringing illegality to the attention of your employer. Most companies now have a harassment policy regarding complaining; in order to get your issue out of the employer’s domain and into a court, you must first complain to your employer. This serves to bind some employers because, once you have gone through the potentially awkward step of making that complaint, most employers are hesitant to retaliate against you. Regardless, retaliation in the workplace is a sadly common occurrence, and if that happens, you must get hold of a lawyer as soon as possible.
Wrongful termination in the workplace is not illegal. This is a broad-brush expression that is often used to cover unfair and illegal terminations, and only the latter type of termination is in fact illegal. It is important to remember that employee handbooks are not contracts. Even though an employee handbook might say the employee is entitled to progressive discipline, and while it would be wrongful to be terminated for minor offenses, such a termination is legal. Our office must often diagnose whether a specific instance of wrongful termination slides over to being an illegal termination.
Can I Be Fired Because of Social Media Activity?
For the most part, and especially if you are a private sector employee, you can absolutely be fired for anything that is on your social media account. Whether you express your support for a politician whom your boss does not like, post a picture that your supervisor considers offensive, or make a comment that your superior thinks is inappropriate, you can absolutely be fired. For that reason, you should be very careful who you allow to see your social media profile. Even more important, think carefully before putting anything up on your profile that might anger someone with or for whom you work; your boss can fire you and, in that situation, you would have no recourse.
Many employers present employees with severance agreements, allotting them a specified amount of prospective future pay in exchange for signing a release. Before signing such an agreement, however, an employee should have an attorney review it, or at least speak with an attorney about its terms.
Most severance agreements include language that directs the employee to speak with an attorney. If you are presented with a severance agreement, it is important that you examine it with a lawyer because, by signing that agreement, you are signing away all the rights that you would otherwise have against that employer. Whether it is a long and detailed severance agreement or a short one that includes a general release, by signing it, you are waiving any and all potential claims you might have against that employer.
Employers are not obligated to provide a severance package when they cut ties with an employee. This is not necessary at all, and many employers offer no severance benefits. We sometimes suggest that a severance policy or package makes sense, just to ensure that the ties cut with certain employees are neater and cleaner. By offering an employee a week or two of severance, or even a week for every year of service, the employer gains certain protections. In order to receive that money on their way out the door, departing employees waive all sorts of claims they could potentially have against the employer. In many scenarios, it makes strategic sense for an employer to give those benefits as a way of protecting themselves from exposure to lawsuits down the road.
Is My Employer Required to Give a Reference?
An employer does not have to give a job reference on a former employee at all. If an employer is contacted and asked, “What can you tell me about Mary Smith?” The employer is allowed to say, “I have nothing to say about Mary Smith.” In and of itself, that can be a negative reference, but it is not illegal or actionable to give a negative reference.
Most employers these days, however, do not do this. In larger companies, a caller will be passed through to the Human Resources Department, where the person who receives the call will read a script that says something like, “It is not our company’s practice to speak on former employees. We will simply say that Ms. Smith worked for us for four years, and her employment came to an end in November of 2016.”
False references are a different matter, however, as they constitute defamation. In the workplace, the issue of defamation can arise because, if someone gives a false reference about someone else, they can be sued.
Can I Violate a Non-Compete Clause?
One area of our practice that has picked up immensely in the past five or six years involves litigating issues regarding non-competing agreements. Some employers may say that an employee must agree not to work in the same industry for six or eight months quitting, or he or she will be fired. The employer cannot say this unless it is in writing and signed by the employee. Commonly referred to as a non-compete agreement, this document usually includes confidentiality and proprietary protections as well. New York State currently frowns upon non-compete agreements, but a signed non-compete agreement is a contract, and under certain circumstances, it is an enforceable one.
Litigation in these cases can be intense; an employee who leaves one place of employment to go to another employer is a valuable employee. When it comes to litigation, non-compete agreements are factually intensive matters. A unique employee may have access to specific confidential proprietary information, been with a company for a while, and received money to sign the non-compete agreement. Generally, if that person moves to another position in the same area, the employer will retaliate. However, most non-compete agreements are not enforceable, and former employees should have the freedom to seek new opportunities in any field.