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.

Wrongful Termination

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Many employees, at one time or another, go through the trying process of being terminated from their jobs. This time can be especially emotional, often leaving the employee feeling they were treated unfairly. If you’ve been fired from your job and feel you were treated unfairly, you may question whether you have a legal claim against your employer for wrongful termination. In most states, including New York, employees by default are considered employed “at will,” meaning they can generally be terminated from their job for any reason or no reason at all. The only exceptions to this rule exist where specifically recognized under the law, such as where the termination violates an employment contract or specific state or federal statute.

Eisenberg & Baum’s employment discrimination practice group has experience with wrongful termination cases in New York and across the United States. Whether you believe you were fired for a discriminatory reason or in retaliation for reporting wrongdoing, we can help advise you of your legal rights. Here are several of the most common grounds for wrongful termination claims of which you should be aware if you are considering a claim. This is not intended to cover all of the grounds for a wrongful termination claim, and such grounds can vary from state to state.

Grounds for Wrongful Termination Claims

As I noted, employees in New York and most other states are typically employed at will. However, there are situations in which an employee’s firing can be considered wrongful and therefore entitle the employee to recover damages from their employer.

Violation of the Law

In the absence of an employment contract, you will most likely be considered an at-will employee, and therefore your grounds for challenging your termination will be more limited. While an at-will employee may be terminated without cause, that does not mean the employee can be terminated for any reason. If the employer decided to terminate the employee for an illegal reason, then the employee can challenge the termination. Two of the most common illegal grounds for termination are discrimination and whistleblower retaliation.

Discrimination

Federal law prohibits certain employers from taking adverse actions against their employees (including termination) on the basis of certain protected categories. Those categories include race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. If you are employed by a private employer, you should be aware that most of the federal laws prohibiting discrimination in the workplace apply to private employers only once they have reached certain minimum threshold number of employees (typically 15).

On top of the federal laws, many state laws prohibit discriminatory employment decisions. For example, in New York 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.

Whistleblower Retaliation

In addition to the federal and state protections against workplace discrimination, an employee can base a wrongful termination claim on the concept of whistleblower retaliation. Both federal and state laws prohibit employers from retaliating against employees for reporting certain kinds of improper conduct by their employers. An example of this could be an employee of a chemical company reporting illegal dumping of waste by their employer or an employee of a securities firm reporting insider trading by the firms’ employees. Whistleblower laws are designed to protect employees and ensure certain types of improper employer conduct are reported.

Breach of Contract

Breach of ContractThe exception to at-will employment occurs when an employee has either an express or implied employment contract in which the employer provides the employee some assurance of job security. Courts are more likely to recognize and enforce express or written contracts versus implied contracts, which require evidence the employer has promised continued employment through policies or other statements. If you are able to prove your employer fired you in contravention of an express or implied contract, you can pursue a breach of contract claim against your employer.

Take Action

While most employees in the United States are considered at-will employees, employers do not have blanket authority to terminate employees where they make their decision in breach of an express or implied contract or in violation of the law or that are based upon discrimination. Many employees, regardless of their at-will status, enjoy the protection of state and federal laws that prohibit employment discrimination based on race, age, gender, religious preference, and a number of other protected categories.

If you believe you have been wrongfully terminated, please contact contact Eisenberg & Baum. We’re based in New York City and have attorneys licensed in many states throughout the country, so we can help no matter where you are. Our group of experienced employment discrimination attorneys will take a look at your case and advise you of your rights and legal options. 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.

Can a single employee win a discrimination claim against a Fortune 500 company?

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Deciding to sue an employer because you have been discriminated against at work can be a difficult decision for anyone. On top of the mixed emotions an employee can have about taking on their current or former employer, the employee can be intimidated by the size and financial wherewithal of the employer. That intimidation can reach extraordinary heights when the employer is a large, multinational company with thousands of employees, an entire department of lawyers, and annual revenue in the billions of dollars. But, the American legal system is fundamentally designed to level the playing field between litigants and impartially judge the merits of an individual’s claims no matter how deep the pockets of their counterpart.

You’re Not Alone — We’re Here to Help

In each of the cases below, individual employees who felt they’d been discriminated against at work took on employers who ranked amongst the largest in the country. The employees typically first sought a remedy directly from their employers only to be turned away and, in some cases, fired. Their ultimate resort was court, where they were able to bring their employers to terms either through a court judgment or settlement.

If you’ve been subjected to harassment or discrimination at work and are considering filing a lawsuit against your employer, large or small, contact Eisenberg & Baum. We’re based in New York City and have attorneys licensed in many states throughout the country, so we can help no matter where you are. Our group of experienced employment discrimination attorneys will take a look at your case and advise you of your rights and legal options. 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.

Contingency Fee Arrangements

In addition to the design of the legal system, victims of employment discrimination can benefit from the fact that many plaintiffs lawyers, including Eisenberg & Baum’s employment group, provide their services on a contingency fee basis, meaning that an employee can engage legal help with very little cost up front and the lawyer will only be paid if you are able to recover damages from your employer. If you win, your lawyer is simply paid a percentage of your overall recovery.

Courts in New York and around the United States are filled with examples of individual employees taking on their Fortune 500 employers in discrimination lawsuits and prevailing. Any employee who is the victim of employment discrimination yet feels unable to defend themselves against their employer can take hope from these cases, which demonstrate that no employer is too large to be brought to account.

Calibuso et al. v. Bank of America Corp. et al.

Judy Calibuso, a financial advisor with Bank of America’s Merrill Lynch unit, helped lead this New York class action lawsuit on behalf of about 4,800 current and former female financial advisors and trainees at Merrill. Calibuso and the plaintiffs alleged Merrill and Bank of America engaged in gender discrimination by favoring male financial advisors in a number of employment areas, from pay to job support. The plaintiffs also alleged that Merrill retaliated against female employees when they complained about this apparent gender bias. After three years in New York federal court, the parties agreed to a settlement under which Bank of America paid the plaintiffs $39 million and made changes to its employment practices to address the alleged gender bias.

Ingraham v. UBS Financial Services, Inc.

Carla Ingraham worked for UBS for 22 years as a client services associate before being fired in 2009. What precipitated her firing, according to Ingraham, was sustained sexual harassment by her manager, a UBS vice president, that included inappropriate sexual comments, emails and phone calls to Ingraham’s home. After Ingraham reported the harassment to both UBS and the Missouri Human Rights Commission, Ingraham was subjected to a UBS investigation and ultimately fired. Ingraham filed a lawsuit against UBS in Missouri state court alleging the company and its employees sexually harassed her and retaliated against her for reporting the harassment. The jury ultimately agreed with Ingraham, and Ingraham received $8.4 million in damages.

Nickel v. Staples Contract & Commercial, Inc. et al.

Bobby Nickel had been an employee of Corporate Express for six years when Staples purchased it in 2008. According to Nickel, after Staples acquired Corporate Express, Staples systematically tried to push older, higher paid employees to leave. When Nickel refused to resign, he claimed his fellow employees and manager leveled false accusations against him and harassed him, ultimately leading to his firing in 2011. Nickel was 64 at the time. Nickel filed a lawsuit against Staples in California state court, alleging that Staples had harassed and discriminated against him because of his age. A California jury sided with Nickel, awarding Nickel $26 million in damages.

Juarez v. AutoZone Stores, Inc.

The plaintiff in this case was a female employee named Rosario Juarez, an employee of AutoZone who, after complaining of an apparent glass ceiling policy at the auto parts retailer, earned a promotion to store manager in 2004. According to Juarez, though, things changed in late 2005 when she let her manager know that she was pregnant. Juarez alleged that, from that point forward, her manager treated her differently, pushing her to step down from her store manager position and ultimately demoting her. Juarez filed a lawsuit against AutoZone alleging she had been discriminated against because of her gender, at which point AutoZone fired Juarez. The California jury in the case found in Juarez’s favor in a big way, awarding her $185 million in damages. After AutoZone asked the trial judge for either a new trial or reduction in damages, the parties settled the claim for an undisclosed amount, ending the litigation.