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.