Practice Area

HARASSMENT AT WORK

When an employer causes or allows conditions at work to result in discriminatory intimidation, ridicule and/or insult sufficiently widespread to pervade the job condition, the employer will be guilty of harassment. Three requirements must be shown:

1. an oppressive atmosphere;
2. a causal link between the conduct and a protected class;
3. the conduct and motivation may be attributed to a defined employer;

The definition of employer includes 3 categories:

1. managers
2. supervisors
3. co-workers

ACTIONABLE EVENTS

Promotion, dismissal, pay inequality because of race, ethnic origin, religion, gender, age or disability may all qualify as actionable acts. For example, an employee denied a tangible benefit following a request for a relationship with a manager, supervisor or co-worker may be a victim of discrimination.

HOSTILE WORK ENVIRONMENT

For a case to be actionable, the environment must be both objectively and subjectively offensive to a reasonable person. This means that an employer allowing working conditions to exist that make an employee feel uncomfortable or threatened or prejudiced because of demeaning remarks by managers, supervisors or coworkers has permitted a hostile work environment that may be actionable.

Isolated incidents will generally not suffice; the incident must be part of a continuing condition, often repeated. The issue is whether a reasonable person in the employee’s position would find the conduct unwelcome, hostile, and abusive. Indicia include the frequency of these incidents, their severity and whether they interfere with the employee's work. An example: where female employees are referred to in a disparaging context, grabbed and/or threatened if they object, then a hostile environment exists. The victim must also prove that the conduct was personally offensive to the victim and unwelcome.

Males can also be the victims of discrimination.

SENIOR OFFICERS

If the officer is sufficiently senior to control policies of the employer, the employer is liable even where the company has a policy prohibiting it. A mid level supervisor may also result in employer liability if the mid-level supervisor has the power to promote, fire or discipline an employee or recommend such action. A mid-level supervisor may be considered the employer if he/she directs the regular work of the employee.

There are defenses. For example, an employer may rebut a hostile environment by establishing reasonable care to prevent and correct promptly any sexually harassing behavior. This is a question of fact.

Co-workers harassment may make the employer liable if the employer fails to take prompt and effective measures to remedy harassing behavior, and such conduct rises to a severe level.

If you believe that you may be the victim of unlawful discrimination or harassment, please contact us.

DISCRIMINATION

The Civil Rights Act of 1964 prohibits discrimination based on race, color, national origin, gender (which includes discrimination as a result of a pregnancy) and religion. In 1967 Age Discrimination in employment was added to the groups of protected classes. The Disabilities Act of 1990 added mental and physical disabilities. The rights are interpreted and enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

New York State has long prohibited discrimination on the basis of race, gender and religion and often its laws are more expansive than Federal law. New York State also prohibits discrimination on the basis of actual or perceived sexual orientation as well as the other classes employment, housing, public accommodation, education, and the exercise of civil rights.

The EEOC is authorized to file judicial actions.

AGE DISCRIMINATION IN EMPLOYMENT

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination against persons age 40 years or older. Enforcement responsibilities were transferred to the EEOC in 1978. Mandatory retirement was prohibited and the protected age class was extended to include persons up to the age of 70.

EQUAL PAY

The Equal Pay Act of 1963 provides that men and women who perform equal work for an employer must receive equal pay unless the difference in pay is explainable by a meritorious seniority system, a merit system, or a system that measures quantity or quality of performance or for any other reasonable standard not based on gender. The criteria are fixed by the Fair Labor Standards Act. Enforcement is delegated to the EEOC.

EQUAL PROPERTY AND CONTRACT RIGHTS

All persons have the same rights to make and enforce contacts. Raced based discrimination in hiring on firing practices is barred. All benefits, privileges, terms and conditions of contractual relationships must be equal among all races and ethnic groups. This Act is not restricted to employment contracts but in fact extends to any contract of whatever kind and/or description. No administrative exhaustion of remedies is imposed. Damages are also unlimited.

FAMILY AND MEDICAL LEAVE

All eligible employees are entitled up to 12 weeks of unpaid leave during any 12 month period if one of the below applies:

1. the birth of a child;
2. adoption or providing foster care for a child;
3. a serious health condition that makes the employee unable to perform the functions of the position;
4. necessary care for a spouse, child or parent who has a serious health condition.

During the 12 week period, the employer is obliged to maintain the employee’s existing health care benefits and to restore the employee to the position at the end of the leave without reduction of benefits. Employees may not be retaliated against for asserting these rights.

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