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Justice Scalia’s Legacy on Employment Discrimination Claims and What His Departure Means

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News of Justice Antonin Scalia’s death and the vacancy it has left on the Supreme Court has reverberated throughout the country over the last several weeks. That it happened during an election year has only heightened the attention given to the impact of his sudden absence and his potential replacement. Justice Scalia was known for using the doctrine of “originalism” to interpret the Constitution and for writing colorful, blunt opinions. His impact on areas of the law from the Voting Rights Act to the Second Amendment has been well-established over nearly three decades of service on the Supreme Court.

In this posting, we’ll talk about Justice Scalia’s legacy in the area of employment discrimination law and what the future may hold depending on his replacement. This isn’t intended to be a deep scholarly analysis for our fellow employment lawyers, but a general overview for anyone interested in Justice Scalia’s impact on employment discrimination cases and how his departure might affect similar cases in the future.

Justice Scalia’s Mixed Record on Employment Discrimination

Most people who follow the Supreme Court considered Justice Scalia to be one of the more conservative justices on the Court during his time. Scalia was appointed by Ronald Reagan and joined in many rulings lauded by conservatives over the last several decades. But his impact on employment discrimination law cannot be easily painted as conservative or pro-business. If you look at some of the employment discrimination cases decided by the Court over Justice Scalia’s tenure, he has been on both sides of opinions affecting employment discrimination law.

On one hand, Justice Scalia opposed expansion of sexual harassment liability and the ability of employees to raise large-scale class action discrimination lawsuits. In Burlington Industries, Inc. v. Ellerth, the majority of the Court found that an employer can be liable for a hostile work environment created by sexually harassing conduct of a supervisor, regardless of whether any adverse action was taken against the victim and whether the employer was directly responsible for the supervisor’s actions. Justice Scalia dissented from the majority opinion in Burlington, arguing that the majority created the rule for employer liability from nothing and that a supervisor’s harassing conduct should not be automatically attributed to their employer. Justice Scalia also wrote the majority opinion in Wal-Mart Stores v. Dukes, which denied a small group of female employees of the retailer the right to file a class action gender discrimination lawsuit on behalf of all female employees on the basis that the group lacked a common complaint. The burden fell, instead, on individual female employees to file their own lawsuits against one of the largest companies in the world in order to recover for any gender discrimination they experienced.

In other discrimination cases, however, Scalia sided with the employee, writing two opinions that supported broad views of anti-discrimination law. In 2011, Justice Scalia wrote an opinion in the case of Thompson v. North American Stainless that allowed family and friends of an alleged victim of discrimination to bring a retaliation lawsuit against their mutual employer. Most recently, Justice Scalia wrote the opinion in EEOC v. Abercrombie & Fitch Stores, a case in which the employer, Abercrombie, refused to hire a woman because she wore a head scarf. While the applicant claimed she’d been discriminated against based on her religion, Abercrombie claimed the head scarf violated its dress code and it had no reason to know that the applicant wore it for religious reasons. Scalia’s opinion supported the applicant by holding that she did not have to specifically request an accommodation to wear her head scarf in order to be protected from religious discrimination by a prospective employer.

Impact of Justice Scalia’s Absence on Employment Discrimination Cases

Justice Scalia’s absence from the Court has been the subject of a lot of media coverage. In the short term, how will it impact Supreme Court decisions? Will President Obama nominate a replacement, and if so, will the Republican-controlled Senate approve? What will the implications be if a Democrat or Republican appoints a replacement? We can only speak in general terms of the long-term impact of Justice Scalia’s absence from the Court. For the time being, while the Court is one justice down, its members are evenly split between four Republican appointees and four Democratic appointees. In those cases where the court is evenly divided and unable to come to a majority decision, the lower appellate court decision will stand. This could have implications on current employment law cases before the court, including Green v. Brennan, which concerns how long an employee has to raise a constructive discharge claim.

Republican DemocratMany Republican Senators have already indicated they would block any nominee sent to them by President Obama, so it’s highly likely the Court will stay at eight members until the next president takes office. If a Democrat were to win the election, the expectation is that they would appoint a more liberal judge to the Court. According to the New York Times, a liberal appointee would likely shift the Court’s overall ideology to a position it hasn’t been in for 50 years. In terms of employment discrimination cases, this could mean the new justice and the majority of the court would read the law more broadly and in favor of aggrieved employees. If, on the other hand, a Republican wins the presidential election, they’ll be more likely to appoint a conservative judge that would maintain the status quo. However, given Justice Scalia’s mixed opinions in past employment discrimination cases, it’s difficult to say that a new Republican-appointed justice would keep the status quo.

With a stalemate between the Senate and President looking likely, we’ll simply need to wait and see who will take the empty seat at the Court and how the future of not only employment discrimination cases, but a broad range of issues could be affected.

If you’ve been discriminated against at work, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

 

The “Elephant in the Valley” – Gender Discrimination and Sexual Harassment in Silicon Valley

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As we discussed in last week’s blog post, the Pao v. Kleiner Perkins gender discrimination lawsuit has opened up a broader conversation about the issues women face in the tech industry. Inspired by this conversation, a group of women with experience working in the industry decided to put some real data to the anecdotal evidence of widespread sexism and discrimination. The group recently published the results of the survey online under the title “Elephant in the Valley,” and the results largely substantiate what was becoming clear in the aftermath of the Pao lawsuit: Ellen Pao’s case was illustrative of a much larger issue of gender discrimination in tech.

In this posting we’ll talk about the aftermath of the Pao case, the Elephant in the Valley survey, and what it means for women working in the tech industry and in the broader workforce. If you’ve been discriminated against at work based on your gender and would like to understand more about your legal rights and options, 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.

The Pao Effect

Even before the jury reached a verdict in the Pao case, Ellen Pao’s story and lawsuit were having an effect outside of just the case itself. The case was very high profile, covered by major media outlets and the subject of broad discussion on social media. Soon after Pao filed her lawsuit, two other women filed suits alleging gender discrimination by major tech companies. Chia Hong filed a lawsuit against her former employer, Facebook, and Tina Huang filed a class action lawsuit against her former employer, Twitter. The fact that these cases came so soon after Pao only magnified the issue of harassment and unfair treatment of women in the male-dominated tech sector.

Though Pao ultimately lost her case, Fortune reported that, based on interviews with several Silicon Valley area plaintiffs attorneys, there was an appreciable “Pao effect” that continued even after the loss. Some lawyers saw a dramatic increase in the number of women coming forward with discrimination complaints, while others observed that gender discrimination clients seemed more emboldened and determined to shine a light on illegal practices at their job. Pao’s single case seems to have encouraged more women to come forward with their own discrimination complaints and has sparked a much broader conversation about gender discrimination in the tech industry .

Elephant in the Valley Survey and Findings

Inspired by this new discussion, a group of women with ties to the tech industry, including Trae Vassallo, a witness for Ellen Pao in her case against Kleiner Perkins, began a project called the Elephant in the Valley to gather hard data on what was becoming an apparent trend of gender discrimination across an entire business sector. Together, the team created a survey that they distributed to over 200 women working in a wide range of tech businesses. The women surveyed generally had at least 10 years of work experience, with many holding high positions of power at tech and venture capital companies. The vast majority of the women polled were from the San Francisco Bay and Silicon Valley area.

What the survey revealed was an astonishing amount of respondents who had experienced sexual harassment and other forms of gender bias and discrimination at work. Here are a few of the key results from the survey:

  • 60% of respondents reported having been subjected to unwanted sexual advances at work
  • 60% of women who reported sexual harassment to their employer were dissatisfied with the action taken
  • 39% of respondents who said they’d been sexually harassed did nothing because they were afraid it would have a negative impact on their career
  • 90% of respondents reported having witnessed some sort of sexist behavior at offsite events and conferences
  • 84% reported having been told they were too aggressive at work

On top of the survey data, the Elephant in the Valley also collected women’s stories and posted some of them on its website. Here are just a few of the stories provided:

  • “The first time I travelled with a new CEO he made an advance. I turned him down. After that, I was never asked to travel with him again. This impacted my ability to do my job.”
  • “When I am with a male colleague who reports to me the default is for people tend to defer to him assuming I work for him. As soon as they know that is not true they look to me. I have also had male colleagues say to me that once a woman is pregnant she is irrelevant.
  • “There is a VC networking group called “alpha” as in male, of which I am the only female member and was “invited” only after specifically asking. VCs have fly-ins, fly-fishing trips etc to which only guys are invited.”

What’s Next?

The point of the Elephant in the Valley was to continue to raise awareness and further the discussion of the issues of gender bias and discrimination in the tech industry.

This exercise isn’t merely to empower those women who may be the direct victims of the types of discrimination and inequity revealed by the survey, but to make an entire industry, especially men, aware of issues that are significantly impacting a significant portion of its workforce and leadership. What comes of this new focus on the treatment of women in the tech industry and beyond will depend on everyone involved. Tech employers can no longer turn a blind eye to the issues of gender bias, harassment and discrimination at work. The issue is too well known and its victims now too empowered for their concerns to be ignored. The victims themselves have had the door opened for them by plaintiffs like Ellen Pao and can take encouragement from the Elephant in the Valley project. If you have been subjected to sexual advances at work or left out of meetings or events because you’re a woman, you now know that you are not alone and you do not have to endure this kind of behavior. We encourage you to report incidents of harassment and discrimination to your employer and contact an attorney.

Eisenberg & Baum’s attorneys have decades of experience handling gender discrimination and sexual harassment cases. 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.

The Pao v. Kleiner Perkins Gender Discrimination Lawsuit

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If you follow tech industry news (or news about high profile employment discrimination cases, like we do), you may be aware of a recent case from California that highlights what many observers believe is a deeper discrimination issue in the tech industry. In Pao v. Kleiner Perkins, a female employee of a Silicon Valley venture capital firm alleged a widespread and long-term pattern of gender discrimination that led to her being denied promotions and compensation and ultimately cost her her job. The venture capital firm defended its practices and ultimately prevailed, but the case has opened a broader discussion about the role and treatment of women in Silicon Valley and other areas. In this posting, we’ll talk specifically about the Pao case and its outcome. Next week, we’ll follow up with a broader discussion of sexual harassment and gender discrimination in Silicon Valley.

The Background of Pao v. Kleiner Perkins

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins matter. Ellen Pao, the plaintiff in Pao v. Kleiner Perkins, obtained degrees from Princeton as well as Harvard’s law and business schools. Before joining Kleiner Perkins Caufield & Byers, she worked for seven years in the tech industry, including jobs at Microsoft and BEA Systems. Kleiner Perkins is one of the largest venture capital firms in Silicon Valley. They’ve provided financial backing for some of the biggest names in technology, including Facebook and Google.

When a position as chief of staff for one of Kleiner Perkins’ managing partners opened up in 2005, Pao applied for and got the job. Less than a year after starting the job, Pao alleges she was pursued by a male colleague and eventually engaged in a relationship with him. According to Pao, she did not let the relationship go on very long before she broke it off. It was after she broke off the brief relationship that Pao alleged the discrimination against her began. First, according to Pao, the colleague with whom she engaged in the relationship began leaving her out of meetings, emails and other business decisions. Starting in 2007, Pao began reporting the alleged retaliation and discrimination by her colleague to her manager and other leaders of the firm. Pao alleged that despite her complaint, her male colleague was not disciplined but was eventually promoted to senior partner while she was encouraged to drop the complaint.

For the next several years, Pao says she continued to complain about the conduct of her colleague, now senior manager, whom she claimed continued to retaliate against her for breaking off their past relationship. Meanwhile, she says she started to receive poor performance reviews, which directly impacted her compensation and ability to get promoted. Apart from the continued issues with her male colleague, Pao also claimed she’d received a book of poetry as a Valentine’s gift from a senior partner that included sexual drawings and content. She also alleged that she and other female members of the firm were left out of multiple dinners involving firm partners, with one partner explaining that the women would be “buzz kills.” After years of internally reporting what she believed were discriminatory and retaliatory acts by her male colleague and the firm leadership, Pao decided to sue Kleiner Perkins in May 2012. In October of the same year, Kleiner Perkins fired Pao.

In response to Pao’s allegations, Kleiner Perkins argued that it was more committed to diversity than its fellow venture capital firms, citing statistics that showed it employed a greater proportion of women than other firms. As for Pao’s failure to be promoted, Kleiner Perkins argued she was not alone, and many other junior partners, including male partners, had also been passed over for promotion during the same time. According to Kleiner Perkins, it had given Pao a number of opportunities and tools to succeed at the firm. The firm used the performance reviews, among other evidence, to argue that Pao was a difficult co-worker who was ultimately unable to make it as a senior partner in venture capital.

Pao’s Legal Claims

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins claims. In her lawsuit, which Pao brought in California state court, Pao claimed Kleiner Perkins violated several provisions of the California Fair Employment & Housing Act. The provisions are similar to those found under the federal Civil Rights Act and other state laws designed to protect workers from discrimination based on gender and other protected characteristics such as race, religion and ethnicity.

Specifically, Pao alleged three different, but related violations of the California law:

  1. Under California law, it is illegal for an employer to discriminate against an employee based on their gender in matters of compensation and other employment terms. According to Pao, Kleiner Perkins denied her a promotion and compensation, and ultimately fired her, because of her gender.
  2. California law also prohibits an employer from retaliating against an employee because they’ve filed a discrimination complaint. Pao claimed that she was denied a promotion, compensation and other opportunities at work because she had complained about discriminatory conduct by her male colleague and others at the firm. She also alleged that her firing was in retaliation for filing a lawsuit against Kleiner Perkins.
  3. Finally, California law requires employers to take all reasonable steps to prevent gender discrimination and harassment. According to Pao, her internal complaints of discrimination and retaliation were met with inaction at best as her male colleague was allowed to discriminate against her for years.

Based on these alleged violations, Pao sought $16 million in damages, including damages for back pay and lost future earnings. The trial began in February 2015.

The Outcome of Pao v. Kleiner Perkins

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins outcome.The jury in the case deliberated for two days before returning a verdict in Kleiner Perkins’ favor on all counts. Nine of the twelve jurors (the minimum required to reach a verdict in a civil case in California) believed Kleiner Perkins’ version of events, that Pao’s own performance led to her inability to get promoted and eventually her termination and that she had not been retaliated against for raising discrimination issues.

Though Pao lost, many believe her lawsuit has shined a light on a long overlooked issue in Silicon Valley and the tech industry: the underrepresentation and unequal treatment of women. We’ll talk more about these issues and the impact of Pao’s case beyond the verdict in next week’s blog post.

If you’ve been discriminated against at work because of your gender, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so yo
u won’t have to pay us unless we win your case.

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.

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.

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.

I am being sexually discriminated against at work, what should I tell a lawyer?

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Sex discrimination covers a wide range of negative actions in your place of employment, from losing out on a promotion because of your gender to receiving unwanted sexual advances or being the target of offensive remarks of a sexual nature. You don’t have to take sexual discrimination at work. It’s prohibited under federal law and, in some cases, state law. It is wise to take action quickly for your own emotional and physical health and safety, and if you do not want to go it alone, enlist the help of an experienced attorney to protect your rights and help resolve the situation. Before you meet with your attorney, here’s what you should be prepared to discuss.

Your Accounting of the Discrimination

Your attorney will need to know exactly how you are being sexually discriminated against to determine the best course of action for your case. Discuss the specific instances of discrimination in detail, including the dates of the occurrences, the names of those involved, and the location of each discriminatory activity.

If you haven’t already, write down the instances to document the issue and collect any evidence to back your claim up. Useful documents include written proof of the discrimination, such as emails, memos, employee evaluations, etc., any reports or complaints you have already filed with the local employment departments and the Equal Employment Opportunity Commission, and all witness accounts.

Your Employer’s Accounting of the Discrimination

Discrimination cases are rarely cut-and-dry; it is unlikely that your boss will literally tell you that your gender is why you won’t receive the training being offered to other employees. In most cases, your lawyer has to prove there is a pattern of discrimination against you. This is why your documentation and any proof you have is critical to your case.

Your employer’s accounting and documentation is crucial as well, so plan on discussing the procedures your employer already has in place to address sexual discrimination, including the steps you took to follow those procedures by filing any necessary reports and attending meetings to discuss the issue. Proving that you followed your employer’s policies to resolve the issue first strengthens your case.

Finally, be prepared to be completely honest with your attorney about all of the details surrounding your sexual harassment. Although this is a very uncomfortable situation that might require you to discuss instances of a graphic nature, you must give your attorney all of the details, including both your employer’s and your actions in all instances. Your attorney cannot adequately present your case without knowing absolutely everything.

What is gender discrimination in the workplace?

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No workplace is perfect, but it is not unreasonable for workers to expect a basic level of decency and civility, such as freedom from harassment and unfair treatment based on personal characteristics. Despite the improvements in gender equality that have been made over the years, issues such as gender discrimination are still alarmingly widespread. Of course, it can be difficult to figure out exactly what qualifies as gender discrimination if you have not experienced it yourself. Thus, there is a risk that this violation will not be reported simply due to the lack of knowledge of the victim.

Thankfully, the legal system has established specific standards for what constitutes gender discrimination, so you can more fully understand what gender discrimination in the workplace consists of. When you gain this valuable insight, you are in a better position to exercise any legal options or rights that you may have, hopefully leading to a favorable resolution and a more pleasant and less hostile workplace environment.

How Prevalent is Workplace Discrimination?

According to the United States Equal Employment Opportunity Commission, there were about 100,000 charges of workplace discrimination in 2012, with sex discrimination constituting more than 30,000 of the charges and retaliation constituting another 38,000. Of course, not all instances of gender discrimination are reported in a given year, so even this large number is an underestimation of the actual instances of discrimination that occur in American workplaces.

Often, victims do not report instances of discrimination because they are unsure they actually have enough evidence for a case, or because they don’t think doing so will make a difference. In other cases, workers may feel as though reporting the discrimination will place their jobs at risk. In addition, the EEOC reports that it only filed a total of 122 lawsuits despite the numerous complaints. Thus, it appears that complaining to the EEOC may not be the most highly effective strategy for vindicating your legal rights.

What Is Gender Discrimination in the Workplace?

Simply put, gender discrimination in the workplace exists wherever you are treated in a different, negative way regarding a term or condition of employment because of your gender. This kind of discrimination can occur at any time during your employment, from the way in which you are treated as an applicant to a position, to the way in which your retirement is handled. Terms and conditions of your employment include hiring; the position in which you are placed or the job duties you are given; your rate of pay; any promotions or demotions; being fired; your work schedule; your work location; your work uniform or dress code; your performance evaluations; and your benefits.

Often, gender discrimination is based on gender stereotypes, and harassing behavior may also be involved in the discriminatory act. However, being harassed is not a requirement of a gender discrimination claim. One can still be discriminated against based upon one’s gender through acts other than those of a harassing nature. If you feel you have been a victim of gender discrimination, contact an attorney as soon as possible so you can protect your employment and retain the ability to exercise your legal rights.

What are the criteria for gender discrimination lawsuits?

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If you are experiencing discrimination based on your gender at your work, you may have the right to file a lawsuit. Under federal law, gender discrimination is prohibited in workplaces of employers who employ at least 15 people. State laws vary, but may provide even more protection, and some city laws also provide significant protection. Before you file your gender discrimination lawsuit, consult with an experienced attorney and take the time to gather evidence for your case and learn what is needed for a successful outcome.

Intentional vs. Prima Facie: What Case Type Do You Have?

In a gender discrimination lawsuit the burden is on you, the plaintiff, to prove that you’ve been a victim. Courts recognize two different types of approaches in sex discrimination cases: intentional, or direct, discrimination and prima facie, or indirect, discrimination.

For intentional discrimination, you have to prove your employer discriminated against you based on your gender some kind credible, specific evidence. For instance, if your employer failed to give you a promotion and sent you a written statement that admitted you were passed over because you are a woman, you have direct evidence of intentional discrimination.

Since intentional discrimination is often hard to prove because of a lack of evidence, you can pursue a prima facie case using indirect proof to show that you were discriminated against. Once you’ve built a successful prima facie case, the burden shifts to your employer, and it must prove it had a legitimate non-discriminatory reason for their actions.

The required evidence to build a case will vary depending upon your state’s laws and your case’s specifics, but you generally must demonstrate that the following is true:

  • You are in a “protected class,” that is, you have a characteristic that federal law prohibits discrimination against, such as gender.
  • You are or were performing your job duties in a consistently satisfactory manner.
  • You have suffered an adverse employment action, such as losing out on a promotion for which you were the most qualified person.
  • You were replaced by another person whose qualifications mirrored yours, i.e., the person did not bring additional experience or qualifications to your job. Usually such a person would not have the protected class characteristic you have.

Documentation Is Key

Documenting anything and everything you can, including what happens to you on a daily basis at work and what actions you have taken, is necessary for your intentional or prima facie discrimination case. Keep a written diary of events that includes dates, times and the names of all people involved. Don’t forget to note the names of any witnesses, even if they weren’t directly involved, and any contact information you can for them (phone number, address, birth date and middle name are helpful types of information).

Use your employer’s formal procedure for reporting a gender discrimination case before going to court, as any negative action taken against you after that will be suspect and a potential part of your case.  This also prevents the employer from claiming it did not know about the discrimination problem.  Make sure you file your complaint with the employer in writing and can prove you did so.  It’s a very good idea to consult with an experienced attorney before making this complaint to make sure all your rights are protected.   Make copies of everything related to your employer’s complaint process so you can show the court you followed the correct procedures. If your employer doesn’t have a formal complaint system, you’ll submit your complaint to your Human Resources department.

If you are not satisfied with your employer’s response, it may be time to file a formal complaint with the EEOC, your local state or city employment discrimination agency, and to take legal action. Consult with experienced legal professionals to take your discrimination case to court and get the resolution you deserve.