There’s a lot that goes into a successful discrimination, harassment, or retaliation action under the New York State Human Rights Law and/or the New York City Human Rights Law. There’s accumulating the necessary evidence, asserting the right claims, and meeting all of the necessary legal and procedural requirements, such as filing before the deadline passes. Ensuring that you’ve “checked” all these “boxes” can seem daunting — even utterly overwhelming — if you’re an everyday worker who’s experienced workplace misconduct. That’s why, if you’ve endured harm from discrimination, harassment, or retaliation, it’s well worth your while to retain the services of an experienced New York employment discrimination lawyer.
A recent case involving one Amazon worker is an example of some of these things, as well as the special circumstances that the COVID-19 pandemic brought about.
The worker, M.F., was an attorney but she also worked as a seasonal shopper for Amazon during the spring of 2020. As the COVID-19 pandemic raged, the shopper became concerned about workplace safety. Allegedly, her bosses did not comply with COVID-19 safety protocols and “mocked, harassed and retaliated against” workers, including M.F., who raised objections to this failure to follow the protocols.
In late April, the shopper filed a complaint with the U.S. Equal Employment Opportunity Commission about COVID-19 protocol shortcomings at her workplace. Ten days later, the shopper received an email alleging that she had engaged “in harassing/discriminatory behavior” and telling her that she was fired. According to the shopper’s complaint, the woman who sent the email, L.D., didn’t actually have the authority to fire her but, after the shopper missed several shifts in mid-May (because L.D. instructed her not to show up for work,) the employer fired her for unexcused absences.
After the termination, the shopper sued. The shopper alleged that she was the only (or only one of two) white shoppers and that she received less favorable treatment than her colleagues of color. She also alleged harassment based on her COVID-19 PPE. Coworkers allegedly would ask M.F., who wore two masks and a face shield, to “speak louder” when she talked. The shopper was exceptionally cautious about safeguarding against COVID-19 because she had previously undergone open-heart surgery and considered herself at high risk of catastrophic outcomes if she contracted COVID-19.
Despite a pretrial motion by the defendants, the shopper was able to proceed. The shopper’s success is a useful reminder of several key legal concepts when it comes to discrimination, harassment, and retaliation cases.
One is making sure you are diligently pursuing all claims available to you. In the shopper’s case, she alleged a hostile work environment, race discrimination, sex discrimination, disability discrimination, and retaliation in violation of the NYCHRL, NYSHRL, and federal law. The court rejected many of her claims but determined that she could go forward with her retaliation case under the NYCHRL and NYSHRL.
To make out a viable discrimination claim under the NYCHRL or the NYSHRL, the law only requires you to assert that you experienced “an unfavorable employment change or [were] treated less well than other employees on the basis of a protected characteristic.” Actionable hostile work environment claims under the NYSHRL or the NYCHRL require only allegations that you were treated “less well” because of your “membership in a protected class.”
The Importance of a Link Establishing Causation
One of the keys to success in these sorts of claims is sufficiently tying the negative treatment you experienced with your protected status. You can’t just allege a protected characteristic and mistreatment; you have to provide the court with proper allegations that the protected characteristic caused the mistreatment.
That was a shortcoming in M.F.’s complaint. In the judge’s view, the crux of the shopper’s race discrimination and racially hostile work environment claims amounted to “M.F. was white, her coworkers were almost all people of color, and she had ‘negative interactions’ with them.” That wasn’t enough. As the judge explained, the “fact that most of Plaintiff’s coworkers were of a different race and that they did not get along, does not give rise to an inference of race discrimination.”
Concerning the disability discrimination claim arising from COVID-19 protocol-related harassment, that too fell short. The shopper’s complaint did not allege that the coworkers who asked her to speak louder were not sincere in doing so or intended to mock her. Furthermore, the complaint only supported an inference that the colleagues who mocked her did so because of her hyper-diligence in following COVID-19 protocols, not because of her heart-related physical ailment, meaning that the allegations did not add up to disability discrimination.
The shopper’s retaliation claim under the NYSHRL and NYCHRL met with a much more favorable result. Those laws recognize viable retaliation claims if the worker sufficiently alleges that: (1) she participated in a protected activity, (2) the defendant knew about the worker’s participation in the activity, and (3) that knowledge caused the defendant to take adverse action against the worker. In this context, the adverse action upon which the worker relies only needs to be an action “that would be reasonably likely to deter a person from engaging in protected activity.”
M.F.’s complaint had all of those pieces. She alleged that she objected to perceived racial discrimination twice — both to a supervisor and to an Amazon hotline. That the mistreatment she alleged did not add up to legally actionable discrimination does not strip a complaint of “protected activity” status. The complaint need only have been made in good faith.
Just 10 days after the shopper’s first objection (and less than a week after the second one,) L.D. told the shopper to stop showing up for work. The employer terminated the shopper a few days later. That termination occurred just three weeks after the shopper’s first objection to perceived discrimination. This short duration of time supported an inference that the worker’s activity caused the adverse action.
The Statute of Limitations and COVID-19 Tolling
The shopper’s case also highlights the importance of understanding the impact of COVID-19 on the statute of limitations. Through a series of executive orders, Governor Cuomo tolled the statutes of limitations of all legal actions from March 20 to November 3, 2020. This matters because, under the NYCHRL, gender-based harassment claims have a limitation period of three years. Additionally, in 2019, the state legislature extended the limitations period for sexual harassment claims filed under the NYSHRL to three years, effective August 12, 2020.
So, if you endured workplace sexual harassment and your legal claim accrued during a certain portion of 2020, the change in the law and the tolling orders might give you extra time. For example, if your claim accrued on September 3, 2020, but you file your lawsuit on November 3, 2023, that could still be timely, even though three years and two months had elapsed.
Nevertheless, other deadlines may indicate that swifter action is needed. For example, M.F. filed a complaint with the EEOC and received a right-to-sue letter from that agency on October 12, 2021. Federal law says that, if you seek to pursue a discrimination case under Title VII, you only have 90 days after you receive notice of that letter. That meant that the shopper had only until mid-January 2022 to file a Title VII claim or else that claim would be vulnerable to dismissal as untimely.
Your discrimination, harassment, or retaliation case is too important to expose it to unnecessary risk. That includes pursuing your case without the right legal team representing you. The experienced New York race discrimination attorneys at Phillips & Associates are here to help, providing you with the knowledgeable advice and diligent advocacy you deserve. Our team has successfully taken on employers from small businesses to massive corporations. Contact us online or at (866) 229-9441 to set up a free and confidential consultation today.