Phillips & Associates

Top 10 Things to Know About Employment Discrimination

Employment Attorneys Advising New York City Workers

Federal, state, and local laws prohibit workplace discrimination on the basis of membership in certain protected categories. These protected categories include race, color, sex, religion, national origin, and disability. The laws apply to different sizes of employers, and there are various nuances to these laws that affect their application. It is important to consult an experienced employment litigator to understand which laws may present good avenues for relief if you believe that you may have a claim. The experienced New York City employment discrimination lawyers at Phillips & Associates may be able to help you if you have faced discrimination or harassment in a New York City workplace. If you suspect that you have been a victim of discrimination, these are the top 10 things to keep in mind.

Top 10 Things to Know About Discrimination in the Workplace

1. In New York, you can be fired for any reason: good reason, bad reason, or no reason at all. Just as you can quit at any time without giving 2 weeks' notice, your employer can fire you at any time. However, you cannot be fired because of your race, religion, gender, age, sexual orientation, nationality, pregnancy, disability, sexual orientation, or sexual harassment, or because you complained about that type of harassment.

New York is an at-will employment state. This means that you can be fired at any time and can quit at any time, which makes it easier for employees to change their jobs but also makes it easier to lose your job. However, your employer cannot fire you just because you belong to a protected class. Different laws protect different classes or characteristics. Title VII of the Civil Rights Act of 1964, for example, protects employees against discrimination based on race, religion, sex, national origin, or disability. The Americans with Disabilities Act prohibits disability discrimination. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people over 40. The New York State Human Rights Law and the New York City Human Rights Law also protect many different characteristics and tend to apply to smaller employers. Federal, state, and local laws also prohibit retaliation based on complaints of harassment arising out of a protected characteristic.

2. Discrimination occurs when you are treated differently (not hired, fired, passed over for a promotion) because of your membership in one or more of those protected classes.

Discrimination is actionable when adverse actions are taken because you belong to a protected class under federal, state, or local laws. For example, if your boss fails to promote you to senior management repeatedly because you are a woman, while less qualified men climb up the ranks, you may have a claim for sex discrimination under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, or the New York City Human Rights Law. There are nuances to each of these laws, and it can be important to consult an attorney about which law best applies to your situation. Generally, federal law protects employees of mid-size or large companies. Smaller employers are covered by state and local laws.

3. You do not have to be fired or demoted to have a claim for discrimination. Comments or conduct relating to your membership in a protected class (including comments about your appearance, requests for dates, being a working mother, or racist comments) can lead to a hostile work environment.

There are many different types of discriminatory acts that can be the basis of a discrimination lawsuit. If you are subjected to comments, gestures, or other actions related to your membership in a protected class, you may be able to sue for damages by bringing a hostile work environment harassment lawsuit. For example, a sexual harassment hostile work environment may be generated if a coworker is constantly making comments about women being the inferior sex and sending you graphic memes. For another example, if your supervisor uses racial slurs, such as the n-word, or hangs a noose in the office near your desk, a hostile work environment would likely be found. In yet another situation, if you receive messages from coworkers calling you a terrorist because you are Muslim from a Middle Eastern country or appear to be from a Middle Eastern country, you may have a hostile work environment claim arising out of your national origin, religion, or color.

4. If you experience discrimination at work, you should speak to an attorney. An attorney may be able to help you through the various legal avenues and ensure that you are preserving your rights.

There are significant differences among federal, state, and local laws, not only in their language but also in how they are interpreted in case law and which kinds of remedies may be available under them. For example, many of the federal laws enforced by the Equal Employment Opportunity Commission (EEOC), such as Title VII of the Civil Rights Act of 1964, require that an employer have at least 15 employees. On the other hand, the New York State Human Rights Law and the New York City Human Rights Law prohibit discrimination by employers with fewer employees. There are benefits and disadvantages under each of these laws. For example, you cannot recover punitive damages under the state law, even if what happened to you was egregious and the perpetrator acted with malice. This may be a consideration in deciding whether to pursue damages under the federal or city law instead. On the other hand, if you missed the deadline to provide notice to the EEOC, you may be foreclosed from pursuing damages under Title VII, and in that case, you may need to choose between state and city laws, depending on the circumstances.

5. While it is illegal for an employer to fire you for complaining of discrimination, it may nevertheless happen (and often does). You may want to consult with an attorney before complaining.

Complaining about discrimination based on membership in a protected class is a protected activity that is prohibited under the retaliation provisions of most anti-discrimination laws. For example, it is a protected activity to email HR and let them know about sexual harassment at a holiday party. The employer is not legally permitted to take an adverse action in response to your emailing HR, but unfortunately it may. Consulting with an attorney before complaining is a wise idea because your attorney can provide advice regarding your complaint and make sure that you are following the grievance procedure that is outlined in your employment manual, if you have an employment manual. Generally, your complaint should be in writing, and you should include the date, time, place, and circumstances of the discrimination. Your written complaint can serve as evidence that your employer had notice of the discrimination or harassment. If your employer takes an adverse action, whether to demote you or to terminate you, this would be considered retaliation. Employers are not always savvy about what constitutes retaliation. Sometimes it is possible to recover damages for retaliation, even if the court determines that what happened to the complainant did not constitute discrimination or harassment under the law, as long as the complainant had a reasonable basis for a good-faith complaint.

6. You do not always need direct proof of discrimination (videos, recordings, documents, etc.) Your testimony can be enough, and "he said - she said" cases are perfectly valid cases.

There is a popular misconception that workers need recordings or videos of an employer explicitly stating that he or she was discriminating against them or harassing them because of a protected characteristic in order to recover damages. However, your testimony can serve as sufficient evidence. For example, if your coworker groped you, your testimony can serve as evidence that you were groped. There need not be surveillance footage or witnesses. This is especially important in a claim involving harassment because perpetrators of harassment may not act in the same way when there are witnesses who could report them to authorities. Often, harassment lawsuits are brought based on the credibility of the victim’s own eyewitness testimony. The jury can determine which side is more credible.

7. You generally have 3 years to file a claim of sexual harassment under New York State Law and 300 days to file with the EEOC as a prerequisite to pursue your claims under federal law.

You should consult a lawyer as soon as possible if you believe that you have been subjected to harassment or discrimination. Memories can become hazy over time, and evidence can vanish. In New York, a discrimination claim can be filed with the New York Division of Human Rights, the Equal Employment Opportunity Commission, or the New York City Commission on Human Rights. The agencies have a work-sharing agreement, which means that you can file a sexual harassment claim in one place and indicate that you want your claim cross-filed with the other agencies. Under the New York State Human Rights Law, you usually have three years to sue for sexual harassment in court, but you have only one year to file a claim with the New York Division of Human Rights. Under federal law, you have just 300 days to file a charge with the Equal Employment Opportunity Commission. If you are filing a sexual harassment charge under Title VII, you will need a Notice of Right to Sue from the EEOC before you are allowed to sue in federal court. The EEOC gets 180 days to resolve the charge, but it may in some cases issue a notice of right to sue before that time.

8. If you file a lawsuit, your case becomes a matter of public record. However, an experienced employment attorney may be able to resolve your case before having to file in court so that the matter can be kept private.

Many people are concerned about coming forward because they are worried about how they will be perceived if others know that they have been a victim of harassment or discrimination, or because they are worried that others will not believe them. A lawsuit is a matter of public record. However, an experienced employment attorney can try to resolve your case through mediation prior to filing in court so that you can keep the matter private. Often, employers do not want word to get out about instances of harassment or discrimination because it is a public relations nightmare. Moreover, sometimes settlement agreements can be negotiated with a confidentiality clause to avoid undue publicity to either party.

9. If you win a jury verdict at trial, you may be entitled to money damages for any emotional distress suffered, as well as attorneys' fees, lost wages and benefits, possibly future lost wages, and possibly punitive damages (which are meant to punish the harasser and/or company for egregious behavior).

Monetary damages may be available in lawsuits won at trial under federal, state, or local laws. However, these damages can vary depending on which law was used to pursue damages. Federal laws, such as Title VII or the ADA, cap compensatory damages based on the size of the employer. Under state law, you cannot recover punitive damages, and under federal law, punitive damages are capped based on the size of the employer. Usually, the city law is the most favorable for the purpose of recovering punitive damages. However, not all cases support an award of punitive damages.

10. Unlike damages or awards in personal injury cases, money received from an employment discrimination case is generally all taxable. Also, if you win at trial or resolve the case through mediation or negotiations, any money will most likely be taxable.

The tax consequences of a settlement or verdict can be complicated. Since most cases do settle, you may want to find out more about how tax laws affect your recovery. Those consequences should be addressed appropriately in a settlement agreement. Settlement payments for back pay, front pay, emotional distress, punitive damages, and interest are included in your taxable income. However, there are certain exceptions under I.R.C. section 104(a)(2), such as specific payments for attorneys’ fees and any payments that are meant to compensate you for physical sickness or physical injuries.

Discuss Your Questions with an Experienced New York City Attorney

It is stressful to face discrimination in the workplace. Our skillful and experienced trial lawyers pursue the recovery of damages from employers that have discriminated against employees in New York City and beyond. Call Phillips & Associates at (212) 248-7431 or contact us through our online form. We handle employment litigation in the Bronx, Queens, Manhattan, and Brooklyn, as well as Nassau County, Suffolk County, Westchester County, New Jersey, and Pennsylvania.

PHILLIPS & ASSOCIATES
45 Broadway, #620,
New York NY, 10006
Tel: 212-248-7431
Fax: 212-901-2107

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