Can I Get My Employer to Change Their Policies Through My Discrimination Claim?

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If you’re considering bringing an employment discrimination claim against your employer, you may have a number of goals in mind. First, you likely want the discrimination against you to stop, if it hasn’t already, and for your company to make you whole. Many victims of employment discrimination also want to ensure that their co-workers don’t have to go through the same or similar treatment in the future. An award of damages to an individual employee can only partially address these goals. So, how can an employee ensure that their employer not only pays for past discrimination against them but also makes changes to their policies and practices so that other employees don’t suffer from the discrimination in the future?

This type of employment policy change can be part of the overall remedy an employee seeks in their complaint and can occur at almost any stage of the complaint. Eisenberg & Baum has decades of experience helping victims of workplace discrimination recover the damages they’re due as well as make lasting changes at their workplace. We’ll talk in this post about when and how your employer can be persuaded and eventually ordered to make changes to their policies and practices.

Employer’s Internal Complaint Process

Change can come from within your company without ever having to go to court. The first step for any employee who is suffering discrimination at work is to let their employer know. Change typically will not come on its own. It often takes a victim standing up to their co-worker, manager or other harasser to get the process started. Many employers have adopted internal policies and procedures for handling discrimination complaints. Following this process puts your employer on notice that you have a complaint and they will need to investigate. When an employer’s internal complaint procedure is working well, it produces effective, independent investigations that can resolve the employee’s complaint through not only a remedy for the victim and discipline for the accused, but also internal changes to the extent that the employer’s policies or procedures played a part in creating the environment in which the discrimination occurred.

Administrative and Court Orders

Unfortunately, not all internal employer investigations resolve an employee’s complaint. The investigation may have resulted in a finding that no discrimination occurred or in a remedy that did not fully satisfy the employee. At that point, the employee will want to take their case to a third party, either an administrative agency that enforces discrimination laws or a court. In either case, the employee will be able to continue to seek policy changes among their remedies.

Administrative Complaints

One of the options you have as a victim of workplace discrimination is filing an administrative claim either with the federal Equal Employment Opportunity Commission (the EEOC) or, where applicable, with a state or local agency like the New York State Division of Human Rights or the New York City Commission on Human Rights. These agencies have the responsibility of enforcing various federal, state and local employment discrimination laws, and in the case of the New York State and City agencies, have the ability to order the employer to stop the discrimination and make necessary internal changes to ensure similar discrimination does not occur in the future.

While the EEOC itself can’t issue a binding order for damages or other remedies, it will often encourage the parties to settle the claim informally before bringing litigation. In a recent case handled by the EEOC and the New York Attorney General, female field workers for utility provider Con Edison brought sexual harassment and gender discrimination complaints against their employer for widespread harassment and discrimination by their male counterparts and supervisors. As part of their complaint, the employees alleged that Con Edison failed to effectively respond when the female employees complained internally and didn’t follow its own policies for discrimination investigations and retaliation. In September 2015, the EEOC and New York Attorney General announced a settlement had been reached with Con Ed in which the employer agreed to pay its female field workers $3.8 million in damages. The settlement went further, though, requiring Con Ed to provide training to its supervisors and make changes to its policies and procedures dealing with discrimination complaints.

Lawsuits

As a discrimination victim, you also have the option of taking your employer to court to address their discriminatory actions and recover damages. As part of the remedy in discrimination cases, courts generally have the ability to order injunctive relief to prevent the discrimination from occurring again. For example, a court could order an end to an employer’s use of certain age or gender requirements that contributed to the discrimination claim in the first place. A court could also require an employer to create or implement a new policy or procedure, such as providing sexual harassment training to all supervisors. In 2012, for example, after a jury found manufacturing company AA Foundaries, Inc. violated federal law by subjecting African-American employees to a racially hostile work environment, the court issued an order that both permanently prohibited AA Foundaries from engaging in further racial discrimination and required the company to develop policies and procedures for handling racial discrimination complaints in the future.

Even short of a judgment like that issued in the AA Foundaries case, your lawsuit can have an affect on your employer’s policies. A policy change could be included in the terms of a settlement with your employer, as was the case in a large racial discrimination lawsuit settlement involving Coca-Cola in 2000. As part of that settlement, Coca-Cola agreed to let an outside panel revise its personnel policy to improve the company’s record of hiring and paying minorities and women. In other cases, employers have taken it on themselves to make policy changes separate from any settlement or court order.

You Can Make a Change

If you’ve been discriminated against at work, you can make a difference for yourself and other employees by stepping forward with your complaint. Change can happen at any time, but it often takes someone to raise the issue before it can be addressed. If you’d like to discuss your discrimination claim and the types of remedies you can pursue, please contact Eisenberg & Baum. We offer free initial consultations for employment discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

What Is “Constructive Discharge”?

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In past postings, we’ve noted that employees who are suffering discrimination or harassment at work should report the incident immediately to their human resources department or a supervisor to give the employer an opportunity to investigate and fix the issue. But what happens when your complaints go unanswered to the point that you simply no longer can work at your job? Do you give up your discrimination claim if you decide to leave your job because you can no longer work in such a horrible environment? If your situation at work is serious enough, you might be able to rely on a legal concept known as “constructive discharge” to show you did not voluntarily leave your job and support your underlying legal claim against your employer, like discrimination or breach of contract.

In this post, we will discuss constructive discharge, how it fits within the context of employment legal claims, and what is required to show a constructive discharge. If you’d like to understand more about the idea of constructive discharge and how it might apply in your own case, please contact us. We have a group of very experienced employment discrimination attorneys who are ready to help you understand your claim and advise you of your rights under the law. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.

When Is Constructive Discharge Used In a Legal Claim?

Constructive discharge, on its own, is not a legal claim. Simply because an employee feels they were forced into quitting because they could no longer bear coming to work does not mean the employee can recover lost wages, benefits or other damages. Instead, constructive discharge can be used to show you were effectively fired from a job when firing is an element of a larger legal claim.

Take, for example, a wrongful termination case based on discrimination. We’ve discussed the grounds for wrongful termination claims in the past, but as you might guess, one of the key elements to any wrongful termination claim is the fact that the employee was terminated. If, in our example, the employer never officially terminated the employee but instead allowed the discrimination to continue despite repeated reports by the employee, the employee might have grounds for claiming that their decision to quit the job was effectively a termination by their employer.

How Do I Prove Constructive Discharge?

The standard for demonstrating that you were constructively discharged can vary across jurisdictions, both state and federal. In New York, an employee alleging constructive discharge must demonstrate that their employer deliberately created working conditions that were so intolerable that a reasonable person would have felt compelled to resign from their job. You’ll note that there are a couple of elements to a constructive discharge claim, from the employer’s intent to the reasonable person standard.

Employer Intent

In some jurisdictions, like the federal Second Circuit, an employee must prove that their employer intentionally created the working environment that forced them to quit. This means the employer either had to take affirmative steps to create the environment, such as through a policy or employment decision, or must have been aware of the employee’s complaint but failed to address it. So, for example, it isn’t enough that you were harassed at work by your co-workers based on your age if your employer is never made aware of the harassment. If you feel you’re being discriminated against or harassed at work, it is important for you to follow your employer’s reporting procedure and let your employer know.

Objectively Intolerable Working Conditions

The other key element of constructive discharge is showing that your work conditions were so bad that a reasonable person in your shoes would have quit. As you can tell by the definition, something more than a mere nuisance is required here. A one-time, offhand comment by a co-worker likely isn’t going to be enough. Similarly, just because you may find your supervisor annoying, that isn’t grounds on its own to support a constructive discharge claim. It’s even possible that some instances of discrimination might not be considered egregious enough to meet the objectively intolerable requirement. The bar is very high here. The more egregious and sustained the behavior is, the more likely it will be considered intolerable to the point of forcing a reasonable person to quit.

Take our earlier example of an employee claiming wrongful termination based on discrimination. If that discrimination was sexual harassment, and it included claims that a supervisor continually made lewd comments and inappropriately touched the employee over a period of time, the employee would have a strong argument in favor of this point. Ultimately, however, the decision of what a reasonable person would do under the circumstances will be determined by the court or jury.

Get Legal Help

If you’re a victim of discrimination or harassment at work and you’ve either quit or feel your only option is to quit, contact Eisenberg & Baum. We’re ready and able to help you understand the law behind constructive discharge and employment discrimination claims, and we offer free initial consultations. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

How Can I Prove I Was the Victim of Sexual Harassment If It’s My Word Against My Boss?

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As a lawyer, one of the easier cases to argue is one where there is indisputable evidence your client was wronged. This is the smoking gun situation, where the defendant is clearly at fault. In the world of sexual harassment, these smoking gun cases are rare. What is more common is a war of words—different versions of events told by the two sides to a sexual harassment case. As the victim of sexual harassment, this can be intimidating, especially if it is your word against your supervisor’s. Can your word hold up against your supervisor’s or your employer’s? Will your version of events be enough to win a sexual harassment case?

In this post, we’ll talk about the elements of sexual harassment, what types of evidence are used in a sexual harassment case, how conflicting testimony is resolved, and what you can do as a victim of sexual harassment to help support your own case. If you believe you’ve been sexually harassed at work and would like to understand more about your case, please contact Eisenberg & Baum. We have an experienced group of New York sexual harassment attorneys who are ready to help and advocate on your behalf.

What Are the Elements of Sexual Harassment?

As we’ve discussed in prior blog posts, there are generally two types of sexual harassment cases: quid pro quo cases and hostile work environment cases. Quid pro quo sexual harassment cases occur when an employee is offered some employment benefit in return for the employee’s participation in some unwanted sexual conduct.

Hostile work environment claims, on the other hand, don’t involve this kind of “exchange” of sexual conduct for benefits but rather depend on the employee showing that they were subjected to unwanted sexual conduct that was severe enough to create an intimidating, hostile or offensive work environment. Unlike quid pro quo claims, hostile work environment claims typically require the employee show a pattern of harassment over time that ultimately interfered with the employee’s job.

What Types of Evidence Are Used in Sexual Harassment Cases?

Whether you have a quid pro quo claim or a hostile work environment claim, there are two general categories of evidence that you can use to support your case and counter the version of events provided by your supervisor or employer.

Direct Evidence of Sexual Harassment

Direct evidence is the most straightforward way of proving a sexual harassment claim. Direct evidence is evidence that goes to directly proving an element of your claim. For example, a statement by your supervisor that he will fire you if you do not consent to a sexual act would be direct evidence of quid pro quo harassment. Likewise, emails containing sexually explicit jokes sent to you by your supervisor could be direct evidence of a hostile work environment. Even if the statements supporting your claim were made verbally, they can be used to support your claim.

Circumstantial Evidence of Sexual Harassment

Sometimes, the harassment is not as blatant as the examples given above. Instead, an element of the harassment must be inferred by the circumstances surrounding the employee and the harasser. This type of evidence is known as circumstantial evidence, and while it can be more difficult to prove a sexual harassment claim or element based on circumstantial evidence, it can still be effective. Take the above example of the supervisor propositioning their employee, but instead assume the supervisor did not make an explicit threat to fire the employee if they did not consent. Nevertheless, the employee refused to participate in the sexual act and a day later, they were fired. The proximity of the firing to the supervisor’s proposition could be circumstantial evidence of a link between the proposition and the decision to fire the employee. Another example of circumstantial evidence that could help support the employee’s claim is evidence that other employees were treated similarly in the past by the same supervisor. The more circumstantial evidence there is to support the link between the proposition and the firing, the stronger the employee’s case will become.

How Will Different Versions of Events Be Resolved?

Sexual Harassment TestimonySo what happens when your version of events conflicts with your harasser’s version? First, you should know that, just because your supervisor tells a different story, that does not mean your testimony won’t be considered by a court. Your testimony, as the alleged victim of sexual harassment, is often a crucial part of your case. The purpose of the courts and administrative bodies like the Equal Employment Opportunity Commission in handling disputes is often to decide between differing versions of events. The more support you can give for your version through other evidence, the more likely you will prevail in the dispute.

What Can I Do To Support My Case?

Support for your case can come through a number of different sources, from statements by witnesses and other victims to emails and other documentation of the harassment. That kind of evidence is not always available, so it is helpful if you find yourself being sexually harassed, to document your experience as you go through it. We suggest keeping detailed, dated notes of conversations and interactions you’ve had with your harasser and management. Your employer will often have a reporting procedure for sexual harassment victims, which we also recommend you follow. This will provide another avenue for documenting your complaint. If there is a dispute between you and your harasser or employer about what actually happened, your documentation can be critical in supporting your case.

Finally, if you believe you have a sexual harassment claim, please contact us. We can discuss the merits of your case and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

Discrimination Against Deaf and Hard of Hearing Employees at Work

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Eisenberg & Baum is proud to be a national leader in providing legal services to people who are deaf or hard of hearing. We’ve built a legal team, including a CODA attorney fluent in sign language and a deaf client liaison, who are committed to the legal issues faced by people with hearing loss​, including employment discrimination. We know employees who are deaf or hard of hearing can face unique challenges in their workplace, from issues as simple as not being able to fully participate in team meetings to outright harassment. Unfortunately, discrimination against employees with hearing loss is all too common. If you are deaf or hard of hearing, though, you do not have to put up with discrimination in the workplace. Both federal and state laws protect workers from discrimination based on a disability, which can include deafness and hearing loss. In this post, we will discuss the types of discrimination employees who are deaf or hard of hearing can face at work and the protections they have under the law.

Protections Against Deaf Discrimination

To know what constitutes discrimination against deaf employees, you have to look at the laws that prohibit such discrimination. Protections against deaf discrimination can be found at all levels of law, from the federal Americans with Disabilities Act (the ADA) down to various state and local laws like New York State’s Human Rights Law and the New York City Administrative Code. Who is protected and what constitutes discrimination is dependent upon the language of the law. For our purposes, we’ll look specifically at the ADA and how its anti-discrimination provisions apply to workers who are deaf or hard of hearing.

Discrimination claims under the ADA generally have to meet three criteria:

  1. the employee must have a “disability” as the ADA defines it,
  2. the employee must have been qualified to perform their essential job functions, and
  3. the employee must have suffered an adverse employment action because of their disability.

What is a Disability Under the ADA?

A “disability” under the current version of the ADA means a physical or mental impairment that substantially limits a major life activity, a record of such an impairment in the past, or even the perception by an employer that an individual has such an impairment. Hearing certainly qualifies as a “major life activity,” so deafness or significant hearing loss can meet the definition of a disability under the ADA. You’ll also note that having a past record of deafness or hearing loss could qualify as a disability even if your hearing has since been restored. Finally, if your employer perceived that you had substantial limit to your hearing ability, regardless of whether that was actually the case, the employer’s perception can be enough to meet the disability requirement under the ADA.

Ability to Carry Out Essential Job Functions

Another key element of showing you’ve been discriminated against on the basis of a disability is demonstrating that you are qualified to carry out the essential functions of your job. In other words, the law won’t protect your job if you were unqualified to perform the job’s key functions in the first place. In determining whether a person is qualified, though, courts will look at whether a reasonable accommodation by an employer, such as assistive listening devices or a sign language interpreter, would have made a difference. Also, note that the law is only concerned with essential job functions, not additional duties you may have been asked to perform that weren’t necessarily part of your core job.

What Is an Adverse Employment Action Under the ADA?

The final aspect of a discrimination claim under the ADA is showing that your employer took some adverse employment action against you as a result of your deafness. The action can come at any stage of the employment relationship, starting with pre-employment decisions on hiring all the way through to your separation. The types of adverse actions taken by your employer could include the company’s refusing to hire you, passing you over for promotion or a raise, declining a requested job transfer, disciplining you, or firing you based on your deafness or hearing loss.

You might also be subject to harassment in the workplace from co-workers, supervisors, or even customers or contractors. Harassment could come in the form of insults or jokes about your hearing, derogatory emails, even physical confrontations. When the harassment reaches a level that it creates a hostile work environment in which you are no longer able to perform the core functions of your job, the harassment effectively becomes an adverse employment action.

Retaliation Against or Sexual Harassment of Deaf Employees

Employees who are hard of hearing or deaf are not immune to and may in fact be targeted for other forms of discrimination in the workplace, like retaliation or sexual harassment. The ADA protects workers from retaliation by their employer when they report an instance of alleged discrimination. So, for example, if you complain to your employer about harassment you’ve been receiving because you are deaf and your employer in turn decides to fire you for complaining about your co-workers, you will have an additional retaliation claim against your employer that is not dependent on your proving you have a disability under the ADA. Similarly, employees cannot be retaliated against for requesting a special accommodation under the ADA.

Sexual harassment is also a common form of discrimination in the workplace that deaf employees can be subjected to. As we’ve discussed in separate posts, sexual harassment is a form of gender discrimination consisting of unwelcome sexual conduct that either creates a hostile work environment or is used a basis for employment decisions. Sexual harassment can come from anywhere in the workplace, and can be in the form of unwanted jokes, innuendos, pictures or touching. People who commit sexual harassment in the workplace may seek to take advantage of employees who they believe are vulnerable because of their gender, age, position, or in the case of the deaf and hard of hearing, disability. In reality, all employees enjoy the same protections under the law, and no one has to put up with sexual harassment in the workplace.

What Do I Do If I Am Being Discriminated Against Because I am Deaf?

American Sign Language AttorneyIf you’re being discriminated against because you are deaf or hard of hearing, we recommend you contact a lawyer immediately. At Eisenberg & Baum, not only d
o we have experience handling legal issues for people who are deaf and hard of hearing, we provide a deaf-friendly environment so when you work with our team, you can rest assured that there will be no barriers to communication. Our team in the Eisenberg & Baum Law Center for Deaf and Hard of Hearing includes a CODA attorney fluent in sign language and a dedicated deaf liaison. To understand what our team can do for you, contact us for a free initial consultation. You may also directly contact deaf rights attorney Andrew Rozynski or deaf client liaison Sheryl Eisenberg-Michalowski.

How Do I Choose the Best Employment Discrimination Attorney for My Case?

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You believe you’ve been discriminated against at work and have a legal claim. Now what? You need to talk to a lawyer but how do you find the right one? Of course, we’d like for you to consider Eisenberg & Baum, but we also know that finding the best lawyer for your case is like any other relationship in your life: you need to be compatible. With an employment discrimination claim, you will be sharing intimate details about your life with your lawyer and entrusting them with that information and with your legal claim. Finding the right lawyer in whom to put that trust can be intimidating, but focusing on the few key considerations outlined below can make the job a little easier.

Where to Begin Your Search

There are a number of ways you can find a lawyer, from a simple internet search to a referral from a friend or co-worker. There are also some local and state bar services that will refer a lawyer to you based on your needs — the American Bar Association provides a helpful directory of these services on its website. However you do it, identifying a lawyer or lawyers that can help you with your discrimination claim will be just the beginning of your selection process.

Key Factors to Consider in Choosing a Lawyer

The most important step comes next when you research and meet with the lawyer. This will give you an opportunity to see how well the lawyer will fit your specific needs and represent you in your discrimination claim. Here are are a few of the key factors to keep in mind when you’re making the decision:

Expertise and Experience

One of your primary goals as a client in search of a lawyer is to find someone you feel is knowledgeable about employment discrimination law. Like other professionals, including doctors and engineers, lawyers tend to focus on a specific practice area, and as a client it is important for you to understand what a lawyer’s specialties are. If you had a chronic skin rash, you wouldn’t go to a neurosurgeon for help. Similarly, if you need legal help with a discrimination claim, your first choice probably shouldn’t be to contact an attorney who specializes in criminal law. Your preference should be to find a lawyer who has experience representing employees in discrimination claims, and the more experience they have with your particular type of claim, be it discrimination based on gender, race, religion or some other basis or sexual harassment claims, generally the better.

The quantity of work performed by the lawyer on discrimination cases shouldn’t be your only concern, though. To continue the doctor analogy, what if you found a dermatologist with 20 years of experience but found out the doctor had a less than 25% success rate in treating routine skin diseases like yours? Hopefully, you’d start to look somewhere else for a dermatologist with a better track record. The quality of a lawyer’s experience can be just as important as the quantity of their experience, so as a client you’ll want to ask your lawyer about how successful they’ve been in the discrimination cases they’ve handled, especially those cases similar to yours. No reputable lawyer will be able to guaranty you will prevail in your own case, but they should be able to tell you about their experience with similar cases and give you their opinion of your case based on that experience.

Working Relationship

When choosing a lawyer, you’ll also want to consider how you would feel working with them on your case and possibly for a long time. Before you hire a lawyer, you’ll want to meet with them to not only understand their background but also get a feel for how they approach the attorney-client relationship. Most clients want a smart, capable attorney who will fight for them when needed. Some may need an attorney with a thoughtful and personable approach, especially when it comes to discussing the details of their discrimination claim. Victims of workplace discrimination like sexual harassment or racial discrimination may be very hesitant to talk with an attorney about the details of their claim, but open communication and understanding are critical to good legal representation. As a client, you want to make sure you feel comfortable with the lawyer you choose so they can provide the best service for you.

Fee Arrangement

Another critical aspect of choosing a lawyer is cost. At Eisenberg and Baum, we typically handle employment discrimination matters on a contingency basis. A lawyer that works on a contingency fee is paid based on a percentage of the amount you recover in your case. In our contingency fees cases, we do not charge the client fees unless and until the client actually recovers damages from the defendant. That means, if you hire our firm but ultimately we failed to win or settle your case, we would not receive any payment. On the other hand, if we do recover damages for you, we will be entitled to receive the percentage of the recovered amount.

Make the Right Choice for You

If you need legal help with a discrimination claim, before you decide on which lawyer you’d like to hire, make sure you’ve researched the lawyer and met with them in person to discuss the aspects of their representation that are important to you. Don’t be afraid to ask a lawyer questions that will help you decide whether the lawyer will be an effective advocate on your behalf. Eisenberg & Baum has decades of experience handling employment discrimination claims in New York and around the United States. When handling cases where we are not admitted, we seek pro hac vice (case by case) admission and work with local counsel. We handle our clients’ matters with sensitivity and honesty, and are tough advocates on your behalf. We also work on a contingency fee basis for employment discrimination cases, and are always happy to discuss how that arrangement works. Please contact us if you’d like to learn more about us and discover how we can help you with your case.

What Is My Company Required to Do to Protect Its Employees Against Sexual Harassment?

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Sexual harassment is a form of gender discrimination, which is prohibited under federal law and many state and local laws, including the New York Human Rights Law and the New York City Administrative Code. The act of harassment itself, which generally involves some unwanted sexual conduct, is carried out by individuals in the workplace, like supervisors, co-workers, customers or vendors. But the responsibility for those actions does not rest with the individuals alone. Your employer has a responsibility to prevent sexual harassment in the workplace and respond when sexual harassment occurs.

In this post, we’ll talk about the responsibilities of employers to protect their employees from sexual harassment, including requirements placed on employers by state/local and federal law. If you have been the victim of sexual harassment at your job and are concerned that your employer is not doing enough to address it, please contact Eisenberg & Baum. We have an experienced group of sexual harassment attorneys who are ready to help and advocate on your behalf.

When Can an Employer Be Held Liable for Sexual Harassment?

An employer’s liability for sexual harassment can depend on who did the harassing. If a supervisor or someone with managerial or supervisory authority engaged in the harassing conduct, the employer will generally be liable for that supervisor’s actions. If, on the other hand, someone other than a supervisor or manager engaged in the harassing activity, the employer will be liable if it knew or should have known about the harassment and failed to take steps to prevent it.

If you are an employee, it is important to know the standards by which your employer will be held liable for sexual harassment. Employees must speak up when they feel they are being sexually harassed by telling their supervisor or a human resource representative. An employer can’t prevent what it doesn’t know about, and even if you don’t believe your employer will act to stop the harassment, you will have difficulty moving forward with your sexual harassment claim if you have not first made your employer aware of the issue.

Employer Responsibilities

Fundamentally, federal law, the New York Human Rights Law, and the New York City Administrative Code require employers to provide their employees with a workplace free from discrimination, including sexual harassment. Though the laws don’t lay out many specific details about how employers must act to prevent and address sexual harassment complaints, there are a couple of basic requirements as well as some generally accepted practices that many employers use to address the issue.

Notice of Anti-Discrimination Laws

Federal law requires that certain employers take measures to address discrimination in the workplace, including sexual harassment, and properly respond when employees make discrimination claims.

Employment Discrimination LawsThe federal laws governing sexual harassment generally apply to employers with 15 or more employees. State and/or local laws may have a stricter standard. All employers subject to the federal laws are required to post a notice that describes the federal anti-discrimination laws, including the prohibition of gender discrimination. The Equal Employment Opportunity Commission (EEOC) has prepared a poster for employers that summarizes those laws and explains how employees can file discrimination claims with the agency. Employers should display the poster in a location where it will be easily seen by employees and where other notices are typically posted. The EEOC also encourages employers to make the notice available to their employees electronically.

Recordkeeping

In addition to the notice requirements, federal laws and regulations also require employers to maintain employment records for at least one year and payroll records, in particular, for three years. Employment records can be critical in a sexual harassment claim, both for the employer and employee, and the mandatory retention period can help ensure that evidence of the employee’s claim and the employer’s response are preserved. If the employee files a formal claim with the EEOC, the employer is further required to preserve any records relating to the incident until the claim is fully resolved.

Policies and Procedures

Though neither federal law nor New York state law explicitly requires an employer to adopt a sexual harassment policy and procedure for handling claims, the EEOC strongly suggests employers adopt such policies and procedures. The EEOC’s guidance on sexual harassment encourages employers to “take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.” To accomplish that, the EEOC recommends employers adopt a policy that explicitly prohibits sexual harassment. Once an employer has adopted a sexual harassment policy, they should communicate it regularly to their workforce and, perhaps most importantly, ensure that they are enforcing the policy when employees raise concerns.

The EEOC further recommends that employers adopt procedures for handling sexual harassment complaints made by their employees. The procedure should be designed with the victim in mind and not create barriers that could discourage the victim from coming forward with their complaint. Adopting the procedure and sticking it on the shelf is not enough, though. When an employer receives a sexual harassment complaint from an employee, it should follow its own policies and procedures, thoroughly investigating the complaint and, where it finds sexual harassment occurred, taking actions to stop the harassment and fix the damage done to the victim.

Protect Yourself and Your Co-workers

Employers have a duty to ensure that their workplace is free from sexual harassment. As an employee, you have the right to expect your employer to not only educate its employees about sexual harassment but also to swiftly and thoroughly address any sexual harassment complaints you raise. If you believe your employer is not sufficiently educating its employees about sexual harassment, we encourage you to speak with your supervisor or human resources department about your concerns. If you’ve been the victim of sexual harassment at your job and feel your employer has not effectively responded to your complaint, please contact us. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases and can help you understand the merits of your claim and advise you on your next steps. We offer free initial consultations f
or sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

How Can an Employment Discrimination Claim Affect My Job?

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Can an Employment Discrimination Claim Affect my JobOne of the biggest concerns any victim of employment discrimination can have is whether their job may be impacted if they file a claim. For victims of employment discrimination, there is good news and bad news. Let’s start with the good news, which is that employees are protected by law from retaliation for reporting discrimination against themselves or a co-worker. The bad news is that this legal protection has not meant that retaliation has disappeared from the workplace. In fact, according to the Equal Employment Opportunity Commission, the agency that enforces federal employment discrimination laws, while the overall number of discrimination complaints filed with its office went down last year, the percentage of those complaints based on retaliation reached an all-time high.

In this post, I’ll talk about the legal protections given to employees who file or assist with an employment discrimination claim and address some common concerns of those employees. If you believe you’ve been the victim of discrimination at work, but are concerned about the consequences of reporting the incident to your employer or filing a formal claim, please contact Eisenberg & Baum. We have a group of experienced employment discrimination attorneys who can explain your rights as a victim of discrimination and help you decide the best way to address your particular claim.

Retaliation is Prohibited By Law

As we’ve discussed in prior blog posts, federal and state laws, including the New York Human Rights Law, protect employees from discrimination in the workplace. It is against the law for an employer to make an adverse employment decision based on a protected characteristic like gender, age, race or religion. Now, imagine if an employer were allowed to punish an employee for complaining about discrimination in the workplace, like for example, a male manager sexually harassing his female employees. The business and its employees would experience a “quieting effect” where the employees would be afraid to speak out against the harassment for fear of the impact to their jobs and livelihood. For this reason, in addition to protecting employees from discrimination based on certain protected categories, federal law and the New York Human Rights Law prohibit employers from taking adverse action against an employee because the employee filed a discrimination complaint. Adverse action could include demotion, reduction in pay, firing, or any other action that would dissuade a reasonable person from making a similar complaint.

Can I Still Be Disciplined After I File an Employment Discrimination Claim?

Fired for Employment Discrimination ClaimAlthough the law protects an employee from retaliation after filing a discrimination claim, the employee generally continues to be subject to their normal terms of employment. In addition, employees in most states, including New York, are considered to be employed “at will” by default, meaning they can be terminated from their job for any reason or no reason at all, as long as that reason is not illegal. As a result, an employee who has filed a discrimination complaint may still be subject to discipline or other adverse employment actions for reasons that are not discriminatory or illegal, but employers have to be very careful in this area. If an employee can connect an adverse action taken against them back to their employment discrimination complaint, they will have a retaliation claim on top of their discrimination claim against the employer.

What if I Lose My Claim?

An employee who believes they’ve been the victim of discrimination nonetheless may be concerned about what could happen if they don’t win their claim or if they turn out to be wrong. Could their employer then discipline or fire them because they filed the complaint? The short answer is no. As long as the employee had a reasonable, good faith belief that the employment practice about which they complained was illegal, any attempt by the employer to punish the employee for filing the claim would still be considered retaliation.

Talk to an Attorney

If you’re concerned about coming forward with an employment discrimination claim and are afraid of being retaliated against by your employer, you should contact an attorney. An experienced employment discrimination attorney can advise you about the merits of your claim, the best way to pursue it, and the protections you have as a complainant. Eisenberg & Baum is ready and able to help you with your discrimination or retaliation claims, and we encourage you to contact us for a free initial consultation.Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.

What is a “Hostile Work Environment”?

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Are you unhappy at work, dreading going in every day because you’re finding it more and more difficult to focus on your job? Have you heard the term “hostile work environment” and wonder if that is what you’re experiencing? The truth is, not everyone who is unhappy at work or finding it difficult to get along with their manager or coworkers is the victim of a hostile work environment. A “hostile work environment” is a specific type of employment discrimination claim under federal and state law, and certain legal criteria must be met in order for an employee to claim they’re a victim of a hostile work environment.

I’ll discuss the legal elements of a hostile work environment and give a few examples below. If you believe you’re the victim of a hostile work environment or would like to talk with someone to determine if you have a claim, please contact Eisenberg & Baum. We have a group of very experienced employment discrimination attorneys who are ready to help you understand your claim and advise you of your rights under the law. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.

Hostile Work Environment Elements

In order to prove an employment discrimination claim based on a hostile work environment, you must be able to show that you experienced unwelcome conduct based on a legally protected characteristic and that the conduct was so severe or pervasive it affected the terms of your employment.

Unwelcome Conduct

The conduct you experience at work can be verbal (e.g., offensive jokes), visual (e.g., harassing photos or emails) or physical (e.g., groping or physical confrontation), and can come from any number of sources at your job, including supervisors, coworkers, agents and customers. However, the conduct must be considered unwelcome, meaning that you did not invite or willingly participate in the activity. In the case of a sexual harassment claim, for example, if an employee complained that his co-workers repeatedly told sexual jokes in the office, but the employee himself participated by responding with his own offensive jokes, the employee may have a difficult time proving the conduct was unwelcomed.

Protected Category

In order to be classified as discrimination, the unwelcome conduct must be based on or aimed at a protected characteristic under the law. Under federal law, the protected characteristics include race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. Many state laws also protect additional categories from discriminatory employment decisions. For example, in New York City employers are prohibited from discriminating against an employee on similar grounds as recognized under federal law as well as sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence.

Severe or Pervasive

Hostile Work Environment at JobFinally, in order to create a hostile work environment, the conduct must be so severe or pervasive that it affects your job. Typically, an employee would need to show a pattern of harassment to meet this requirement, though in some instances a single act can be severe enough on its own to establish a hostile work environment. For example, a single, isolated instance of a co-worker telling an insulting joke may not be either severe or pervasive enough to establish a hostile work environment, but a single instance of a co-worker physically coercing an employee to participate in sexual conduct could be seen as so severe that the conduct, on its own, created a hostile work environment.

Examples of Hostile Work Environments

The courts are filled with examples of successful employment discrimination claims by employees who have been subjected to a hostile work environment. The first type of discrimination claim many people associate with a hostile work environment is sexual harassment. The case of Robinson v. Jacksonville Shipyards, Inc., decided by a Florida federal court in 1991, presented what could be considered a textbook case of sexual harassment leading to a hostile work environment. In that case, Lois Robinson, a woman who worked as a welder in a shipping yard, was subjected to repeated sexual conduct by male co-workers, including posting of nude photos of women throughout the workplace, writing obscene graffiti in the workplace, as well as calling Robinson derogatory names and making sexually explicit remarks to her. Although Robinson complained to her management, very little was done to respond to her complaint. The federal court found in Robinson’s favor based on the hostile work environment theory.

Sexual harassment is not the only type of discrimination claim under which the hostile work environment theory has been used. As I noted above, conduct aimed at any protected class under the law can create a hostile work environment. For example, in the 2013 New York federal court case of Turley v. ISG Lackawanna, Inc., Elijah Turley, an African-American steel plant worker, claimed he was the subject of racial discrimination at his job. According to Turley, he complained about a manager’s discriminatory actions back in 2005, and soon after complaining, found himself the subject of discriminatory conduct by a number of his co-workers. His co-workers’ conduct ranged from the use of racial epithets and graffiti all the way up to death threats. Like Lois Robinson, Turley complained about the conduct to his management with little response. Turley sued his employer arguing that the repeated racially-motivated conduct had created a hostile work environment, and a jury found in his favor, awarding him compensatory and punitive damages.

Get Legal Help

If you’re being subjected to discriminatory conduct at work that’s affecting your ability to do your job, you can take action to stop it. We recommend reporting the conduct to your employer as soon as possible and contacting an attorney to help you understand your rights under federal and state law. Eisenberg & Baum is ready and able to help you understand the law behind hostile work environment and other employment discrimination claims, and we encourage you to contact us for a free initial consultation. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

Will My Employment Discrimination Claim Be Confidential?

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An employee who has been the victim of harassment/discrimination at their job may have a number of reasons to be concerned about the confidentiality of their claim. The employee may not want to reveal the details of the incident until they’re sure they have a legal claim. Or, as is often the case when an employee has been sexually harassed at work, they may feel the incident reveals personally embarrassing or private details they simply don’t want public. The employee also may be concerned about facing retaliation at work if the details of their claim become public. In this posting, I’ll discuss some the common phases of an employment discrimination claim and the extent to which an employee can expect the details of their claim to be kept confidential.

Talking With an Attorney About Your Job Discrimination Claim

One of the first steps you should take, if you believe you have been the victim of discrimination at work, is contacting an attorney. Eisenberg & Baum has a group of employment discrimination attorneys with years of experience handling discrimination claims in New York and around the country. We can help advise you of your rights and options based on the facts of your claim.

When you use a law firm like Eisenberg & Baum, you should know that your communications with your attorney about your claim are considered confidential. The law encourages open discussions between clients and their attorneys by protecting their communications from disclosure under the attorney-client privilege. The privilege applies to your communications with your attorney and their representatives, so if you speak with other law firm employees about your case, those discussions can be protected too. Most importantly, the privilege belongs to you the client, which means no one — not even your attorney — can disclose the details of your communications with them unless you specifically waive the privilege.

Filing an Administrative Claim Regarding Workplace Discrimination

One of the options you have as a victim of workplace discrimination is filing an administrative claim either with the federal Equal Employment Opportunity Commission or, where applicable, with a state or local agency like the New York State Division of Human Rights. When you initially contact the EEOC to provide them information about your claim, the information you offer is considered confidential. But, once the EEOC determines it is the correct agency to handle your claim and you choose to go forward with the charge against your employer, the EEOC will notify your employer about the charge and will provide your employer your name and details about your claim. While your employer will be aware of the details of your claim, the EEOC will not disclose to the public any information it collects during its investigation of your claim.

Filing a Discrimination or Harassment Lawsuit

As a discrimination victim, you also have the option of taking your employer to court to address their discriminatory actions and recover damages. Once you enter the court system, there is a strong presumption in favor of making the details of your case available to the public. The court proceedings and documents from your case will generally be available to the public, even though you might consider the details of your discrimination claim to be private.

Job Discrimination LawsuitIn New York, the law does protect some court records from disclosure, but records from employment discrimination cases, including sexual harassment cases, are not among those explicitly protected. In rare instances, courts may seal all or portions of the records from a case if a party is able to show good cause for doing so. However, New York courts will typically balance the party’s interest in keeping the material confidential against the public’s interest in having access to that material. In terms of a discrimination case, it’s possible the court can find a significant public interest in knowing the details of your employer’s discriminatory practices that may outweigh your interest in privacy. If you’re concerned about the details of your claim becoming public in a court case, you should speak with your attorney about your options. Be aware, however, that court proceedings and records typically will be available to the public.

Settling an Employment Discrimination Claim Out of Court

Administrative agencies as well as the courts often encourage parties to try to resolve their claims through direct settlement negotiations or mediation. Many cases wind up being settled between the parties before a final finding or judgment is issued. The terms of a settlement agreement are like almost any contract: they’re enforceable so long as both parties agree to them. In the case of a discrimination claim settlement, one or both parties may have an interest in keeping the terms of their settlement confidential. If both parties agree, the terms of the settlement agreement can be made confidential, prohibiting both the employee and the employer from disclosing to third parties the details of what they’ve agreed to.

Can My Employer Use My Claim Against Me?

No matter what forum you use to pursue your discrimination claim, your employer will be made aware of your claim. You may be concerned that once your employer knows of your claim and other information is publicly available, you could face retaliation at work. Thankfully, you are protected from retaliation for reporting discrimination just as you are protected from the discrimination itself. Federal law as well as some state laws, like New York’s Human Rights Law, prohibit employers from retaliating against their employees for reporting discrimination. This protection is put in place so that you, as the employee, feel safe in reporting your employer’s conduct.

Know Your Rights

If you believe you have been the victim of discrimination or sexual harassment at your job, but are unsure who to tell or what to do, please contact Eisenberg & Baum. We can advise you of your rights, answer your privacy and confidentiality questions, and help you decide on the best way to pursue your claim against your employer. We’re based in New York City and have attorneys licensed in many states throughout the country; we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are. In discrimination and retaliation cases, we offer free initial consultations and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

How Do I Know if I Have a Sexual Harassment Claim in New York?

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Getting harassed at work with sexual comments or behavior can leave any employee feeling isolated and helpless. When you’re the victim of such harassment, you might have difficulty recognizing it in the moment and try to tell yourself it’s no big deal to get through your day. But sexual harassment in the workplace continues to be a very real issue and can impose a heavy toll on victims both in the quality of their work as well as their mental and sometimes physical well-being. Sexual harassment does not need to be tolerated by its victims, who have the protection of state and federal laws here in the State of New York.

In this posting, I’ll discuss the elements of a sexual harassment claim in New York. If you have experienced what you believe to be sexual harassment at your job, these elements can help you determine whether you have a legal claim. If you’d like more guidance on your rights, contact Eisenberg & Baum. We have an experienced group of New York sexual harassment attorneys who are ready to help and advocate on your behalf. See media coverage about just a few of the people we’ve helped.

Federal and New York Laws

Sexual harassment is a form of gender discrimination and is prohibited under both Title VII of the federal Civil Rights Act of 1964 as well as the New York Human Rights Law. New York City has also adopted its own law prohibiting sexual harassment. The definition of sexual harassment across these laws is very similar: sexual harassment consists of unwelcome sexual conduct that either creates a hostile work environment or is used a basis for employment decisions.

What is “Unwelcome Sexual Conduct”?

There are two things to be aware of when it comes to this element of sexual harassment. The conduct must be of a sexual nature and be unwelcome. The conduct itself can be verbal (e.g., sexually offensive jokes or requests for sex acts) or physical (e.g., groping or sexual assault).

Your response to the conduct will help indicate whether it was unwelcome. If, for example, you participated in the activity by responding with your own offensive comments, jokes or innuendos, it can be difficult to prove the conduct was unwelcome unless you felt coerced or obligated to do so in order to maintain your job. On the other hand, if your response showed you objected to the conduct either directly to the harasser or otherwise through your employer, the conduct is much more likely to be considered unwelcome.

Effect of the Conduct

Unwelcome sexual conduct in the workplace on its own is not enough to qualify as sexual harassment. The conduct must either have been offered as a quid pro quo (in exchange for some employment action) or have created a hostile work environment for the victim.

Quid Pro Quo

A quid pro quo claim typically arises when a person in a higher position at work requires an employee to put up with or participate in some sexual conduct in return for a favorable employment decision, like awarding benefits or simply ensuring continued employment. For example, a supervisor requesting sexual favors from an employee in exchange for giving that employee a promotion would be considered quid pro quo sexual harassment.

Hostile Work Environment

Even if the sexual conduct is not offered directly in return for some benefit to the employee, it can still be considered sexual harassment if it is severe enough to create an intimidating, hostile or offensive work environment. Typically, an employee would need to show a pattern of harassment to establish the existence of a hostile work environment, though in some instances a single act can be severe enough to create such an environment. Courts will look at a number of different factors to determine whether the harassment resulted in a hostile work environment, including who engaged in the conduct as well as the frequency and egregiousness of the conduct.

Who Can Commit Sexual Harassment?

You may think sexual harassment can only occur where a supervisor is harassing one of their employees. However, sexual harassment can come from almost anyone in the workplace, including supervisors, coworkers, customers and vendors. While quid pro quo claims are typically based on actions by supervisors, a hostile work environment can be created by any of these sources in the workplace. Also, the person engaging in the sexual conduct does not need to be the opposite gender of the victim. The person engaging in the conduct can be a man or woman and can be the same or a different gender from the victim.

Who Can Be a Victim of Sexual Harassment?

On the same note, both men and women can be victims of sexual harassment. The law prohibits discrimination on the basis of gender without regard to a specific gender. Often the victim is the person to whom the sexual conduct was directed, but that does not necessarily have to be the case. Any employee in the workplace who is affected by the sexual conduct can bring a sexual harassment claim, even if the conduct was not directly aimed at them. The employee will still need to meet the elements required of any sexual harassment claim, and typically in the case of an employee who was indirectly subjected to unwanted sexual conduct, that claim will be based on the hostile work environment theory.

What Do I Do if I’m Being Sexually Harassed at Work?

If you believe you’ve been sexually harassed at work, you should report the harassment immediately to your employer, if you have not done so already, and contact an attorney. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases in New York and can help you understand the merits of your claim and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.