How Your New York Discrimination Case May Also Be an Illegal Retaliation Case

If you believe you have been the victim of workplace discrimination and/or retaliation, you potentially have multiple legal options, and each of those options comes with its own set of "pros" and "cons." To make sure you are putting yourself in a position to achieve the best possible result, you need to choose wisely. A knowledgeable New York discrimination and workplace retaliation lawyer, like the experienced attorneys at Phillips & Associates, can help you select the best path to protect your rights and interests.

Sometimes, those choices relate to trial practice and procedural strategies, which is a scenario where skillful counsel can be especially beneficial. Take, for example, the New York City discrimination and retaliation case of V. S.-K., a woman who worked as an accountant for a Manhattan advocacy foundation.

In the fall of 2019, the accountant was roughly 50 years old and six months pregnant. At that time, the accountant disclosed her pregnancy to her supervisor and requested leave under the Family and Medical Leave Act (FMLA.)

The accountant's FMLA leave spanned from mid-February to May 4, 2020. According to the woman's lawsuit, her supervisor "gave away" most of her responsibilities to another accountant during the months that V. S.-K. was out on FMLA leave. Approximately two weeks after the accountant returned to work, a member of the employer's human resources team informed her that she was laid off. The human resources representative blamed the layoff on "staffing reductions due to the COVID pandemic."

The accountant believed that the employer laid her off for different reasons, and sought to sue for discrimination, hostile work environment, and retaliation under both federal law and the New York State Human Rights Law (NYSHRL).

However, she had a problem. She previously had filed discrimination charges with the U.S. Equal Employment Opportunity Commission (EEOC) and with the New York State Division of Human Rights (DHR) in March 2021. That latter charge prevented the court from hearing the woman's NYSHRL claim because New York State Executive Law Section 297(9) prohibits workers from bringing employment discrimination claims in court if they previously filed a charge with the DHR. This is something called the "election of remedies."

Fortunately, the law has a possible way out of this sort of predicament. You can potentially revive your NYSHRL claim if you file a request with the DHR asking it to dismiss your administrative complaint voluntarily. If it does so, you may litigate your NYSHRL case in court.

Another important strategy this accountant's case highlights is the importance of pursuing multiple causes of action when the facts allow for that. In V. S.-K.'s case, she sued for discrimination, hostile work environment, and retaliation.

The Elements of a Winning Discrimination Case

The woman's discrimination claims all came up short. Federal discrimination law requires a worker to present four essential elements to have a prima facie case of discrimination:

  1. membership in a protected class,
  2. qualification for the job in question,
  3. an adverse employment action, and
  4. circumstances leading to an inference of discrimination.

The accountant clearly met the first three requirements. She was a woman, over 40, pregnant, and was soon to have caregiver responsibilities. The employer agreed that she was qualified for her job; in fact, it had recently awarded her a retention bonus. The woman's termination plainly represented an adverse action.

On the fourth criterion, however, the accountant fell short. The evidence she alleged included things like a training opportunity from which she was excluded and "numerous negative comments" her supervisor made about her pregnancy and her leave. While arguably rude, hurtful, and disheartening, nothing in the comments the accountant presented to the court rose "to the level of discriminatory animus" to "support an inference of discrimination." As a result, the accountant's discrimination claim failed.

Hostile Work Environments and the 'Severe or Pervasive' Standard

The hostile work environment claim also was lacking, according to the court. A viable hostile work environment claim under federal law (Title VII) requires evidence that the misconduct you endured was severe or pervasive. That means showing that your job was "permeated with discriminatory intimidation, ridicule, and insult" that was so bad it altered the terms or conditions of your employment and made for "an abusive working environment."

When assessing that severity or pervasiveness factor, the court will look at several things, among them: the frequency of the alleged misconduct, how severe the misconduct was, the presence of physical threats or humiliation as part of the misconduct, the degree to which the misconduct interfered with the victim doing her job, and any psychological harm the misconduct caused.

The accountant didn't have enough. She based her hostile work environment claim on her supervisor's "insensitive comments" about the accountant's childcare needs and the supervisor's expression of distress about the accountant taking a period of leave during a busy time of year for the employer. She did not allege that anyone at work ridiculed her, or that the employer's actions toward her had the effect of "unreasonably interfering" with her work. This meant the alleged misconduct did not meet the law's standards for severe or pervasive.

Succeeding With a Retaliation Claim

The woman's retaliation claim was a decidedly different story, however. The law says that a viable claim of retaliation requires proof that:

  1. you participated in a protected activity,
  2. your employer knew about that activity,
  3. you suffered an adverse employment action, and
  4. the activity caused the adverse action.

To meet the law's causation requirement, a worker must demonstrate "that the protected activity was followed closely by the discriminatory treatment."

The accountant presented multiple forms of protected activity that the employer knew about, such as questions regarding her job security in light of taking FMLA leave (posed to the employer's vice president of finance) and expressing concerns (to her immediate supervisor) about possible refusal of her leave requests.

When it comes to establishing causation, one way many workers may choose to proceed is by using something the law calls "temporal proximity," which means closeness in terms of time. The courts have never established a "hard and fast" rule of what duration of time is (or is not) sufficiently close, instead declaring that each case must be resolved based on its unique set of facts.

In V. S.-K.'s case, the court considered the relevant facts and determined that the accountant's layoff followed her participation in protected activity closely enough to satisfy "temporal proximity." As a result, that meant she met all the criteria for a retaliation claim and could continue her pursuit of justice in court.

No one should have to choose between standing up for their rights or losing their jobs, yet too many New York workers encounter this problem. If you believe that you have been punished at work because you spoke out against perceived discrimination or harassment, the New York workplace retaliation attorneys at Phillips & Associates are here to help. Contact us online or at (833) 529-3476 to set up a free and confidential consultation today to put our team to work advocating for you.

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