By Shaloni Pinto and Aimee Christianson
{Read in 4 minutes} With the passage of New York Senate Bill 7848A, the state will make it easier for workers to bring sexual harassment claims to court. Aimed to prevent sexual harassment in the workplace, the bill will amend the general business law to limit the coverage of mandatory arbitration clauses in relation to sexual harassment and will also amend the labor law to promote the prevention of sexual harassment.Continue reading
{Read in 6 minutes} Recently I posted an article reminding employees that they must file a harassment complaint within 180-300 days after the latest occurrence. While working on that blog, the question came up about what an employee should do if they are the victim of harassment.
Report the Behavior
First and foremost, report the questionable behavior to someone in your Human Resources (HR) department. The company is not expected to have eyes and ears everywhere; internally, most of them require their employees to report incidents, and the law also requires employees to report incidents themselves.Continue reading
A stuffed monkey hanging from the ceiling in the shipping department at Univar USA’s Dallas distribution chemical facility is part of the evidence two Dallas men are providing in their lawsuit alleging racial harassment by some co-workers.
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Texas civil rights and discrimination attorneys point out areas in the law where Texas civil rights and discrimination protection falls through the cracks. Discrimination may have different motivations such as race, gender, national origin, sexual orientation and disability. Texans are not all protected equally when it comes to civil rights violations and protection from discrimination. Examples include:
Public Accommodations
Most people agree that public accommodations should be free from policies that discriminate. Texas has no statewide law prohibiting such discrimination based on race, color, religion, sex, age, national origin, sexual orientation, or physical handicap. Some local governments have passed ordinances prohibiting discrimination in public places. This has resulted in confusion as to what is legal from one municipality to the next. Texas civil rights and discrimination attorneys claim this highlights the need for statewide legislation.
Discrimination in the Workplace
According to state law in Texas, civil rights in the workplace exist in many areas including employees’ race, age, gender, religion, national origin or disability. However, Texas civil rights and discrimination state law does not extent to sexual orientation. Texas civil rights and discrimination attorneys maintain that policies that favor non-discrimination are good business.
Discrimination in Education
According to Texas civil rights and discrimination laws there are no specific prohibitions stopping a public educational institution from discriminating on account of race, ethnicity, color, gender, disability, sexual orientation, disability, religion or national origin of the student or the parent of the student. There are laws in place prohibiting student on student harassment covered under bullying codes. However, there are no similar laws covering discrimination and harassment originating from employees of the educational institution.
Discrimination from Insurance Companies
Insurance companies are prohibited from discrimination because of race, ethnicity, color, gender, disability, marital status, disability, religion, geographic location or national origin. However, Texas civil rights and discrimination laws make no provision for the prohibition based on sexual orientation and sexual identity. This discrimination can take form of higher rates, refusal to insure, limited coverage, extent of coverage and nature of coverage.
Since in Texas, civil rights and discrimination protection does no extent to sexual orientation and transgender people when it comes to insurance coverage, many insurance companies deny coverage for procedures related to transgender and sexual orientation issues. Many are refused coverage for procedures because of their transgender and sexual orientation status and are required to put off the procedure or pay for it out of pocket when it should have covered by the insurance premium to begin with.
When employers shut you out because you exceed some arbitrary age limit, this can be exceedingly frustrating. Not only is the employer perpetrating an obvious injustice, in many cases, it may be clear that you are best candidate for the position. There are laws prohibiting many types of discrimination. U. S. Equal Employment Opportunity Commission (EEOC) enforces these laws. It behooves an employer to know the relevant laws and regulations. Age is one of the areas of discrimination covered by laws.
Employers are not to treat job applicants or existing employees less favorably because of their age. Current law, covered by Age Discrimination in Employment Act of 1967 (ADEA), applies to employees and job candidates equally. The law applies to people age forty and over. Employers can favor an older employee over a younger employee but not the other way around. The law applies even if both employees are over forty. In other words you cannot hire a 45 year old worker over a 55 year old employee due to age.
Work Contexts and Age Discrimination
The law covers discrimination in many aspects including hiring, termination, pay level and pay raises, work assignments, promotions, layoffs, benefits, training and general working conditions.
Harassment and Age Discrimination
Law forbids harassment due to age. Examples of such harassment could include offensive remarks about a workers age. Harassment is not everyday good-humored banter or an isolated remark. However, if the banter and remarks become so severe and frequent that it creates a work environment that is hostile or offensive, that is harassment and prohibited by law. If the adverse treatment due to age results in negative employment decisions, such as termination, that is considered harassment and prohibited by law. It will be considered harassment if it is the victim’s manager or supervisor, a coworker or even someone who is not an employee such as client or vendor.
Policies, Practices and Age Discrimination
Policies and practices implemented by an employer need to be applied to everyone without regard to age. When applied, policies and practices can be illegal if they can be shown to have harmed or impacted negatively employees forty year old or older due to their age. Areas commonly effected include:
Any employer with more than twenty employees is subject to the Age Discrimination in Employment Act. It also applies to all government agencies, federal, state and local.
Employees who have been discriminated or harassed against in the workplace should not be hesitant to report these claims. Retaliation laws are in place to protect the employee from being harassed or targeted after they exercise their right to report discrimination. When an employee reports discriminatory acts to the Equal Employment Opportunity Commission, their respective state equivalent, the Department of Labor, or even internally to their employer, retaliation laws are in place to stop the employer from taking adverse action against the wronged employee.
Retaliation laws protect against all forms of retaliation. Retaliatory actions include, but are not limited to:
– Disparate Hiring Practices
– Unwarranted Firing
– Pay Reductions
– Change in Job Assignments
– Promotion Discrepancies
– Layoffs
– Unwarranted Training Procedures
– Denial of Fringe Benefits
– Alteration of any other Term or Condition of Employment.
The Equal Employment Opportunity Commission is a federal agency in place to protect the rights of employees. It is “an unlawful employment practice for an employer to discriminate against any of his employees…because the employee has opposed any practice made unlawful employment practice by Title VII.” 42 U.S.C. § 2000e-3(a). EEOC Retaliation laws bar the employer from exercising any retaliatory acts, even retroactively, against an employee after they file an EEOC Charge of Discrimination. Employees should not fear reporting discrimination because the EEOC is an agency to rectify these wrongs.
Most states have a functional state equivalent to the EEOC and this is another avenue for discriminated employees to use to remedy the harassment they have endured. In New York specifically, New York Labor Law Article 20-C § 740 is in place to forbid an employer from taking retaliatory actions against an employee who reports discrimination in the work place. New York employees have protection at both the Federal and State level when exercising their right to be free of discriminatory actions taken by their employer. For employees working in New York City, they even have a third layer of protection under the New York City Human Rights Law.
Employees do not have to report acts of discrimination to one of these agencies in order to be afforded protection under these anti-retaliation laws. An employee is safeguarded against retaliation in any form when they complain about discrimination or harassment directly to their employer by complaining to Human Resources, management or some equivalent. It is vital, however, when complaining directly to your employer, that the aggrieved employee document their complaint of discrimination or harassment in some manner, whether through a formal document, email, or in the presence of a trusted witness.
For an employee to prove they have been retaliated against, they only need to show that the retaliation has produced “an injury or harm.” Burlington Northern & Sante Fe Ry. V. White, 548 U.S. 53, 67 (2006). The injury or harm requirement must however stem from or convey a feeling or perception of discrimination. Employees should not be weary of reporting acts of retaliation, but should exercise their right to be free of these acts. Retaliation can also occur if someone has been negatively affected by your report of discrimination. The EEOC’s Retaliation laws protect the rights of third–parties, even though they have not made claims of discrimination themselves. Thompson v. North American Stainless, LP (2011). For a more detailed discussion on how third-parties are protected by the law, check back to see further blog discussion on our website.
Workplace bullying can be found in offices across America, but few laws regulate or protect workers from such verbal abuse or mistreatment. Workplace bullying is defined by the Workplace Bullying Institute as “repeated, health-harming mistreatment…in one or more of the following forms: verbal abuse, threatening, humiliating or offensive behavior/actions, work interference, sabotage which prevents work from getting done”.
Title VII and other anti-discrimination laws protect workers if they belong to a specific protected class based on race, gender, national origin, age, and other characteristics. However, if you cannot establish that workplace bullying is based on one the protected classes covered by laws against discrimination, Title VII and other anti-discrimination laws will not prove useful. This leaves other majority groups virtually unprotected from workplace bullying.
Why has the U.S. not enacted a federal workplace bullying law? There are many objections to bullying regulations. First, it is hard to classify certain actions as bullying, as American workers are regularly subject to criticism and high demands. Second, the context of bullying varies from industry to industry. For example, a resident at a hospital may be subject to more pressure and intensity than other occupations because of the nature of the work.
There is an effective method to determine workplace bullying in the court system, but the terms of the system are susceptible to the interpretations of the court. The Intentional Infliction of Emotional Distress claim provides the groundwork to prove that certain workplace bullying may be intentional and causes extreme emotional distress. The plaintiff must prove four elements of IIED in order to win in court:
The second element of the IIED claim is the most difficult to prove. Many cases of workplace bullying do not fall under this category, because harassment or verbal abuse is not often considered as outrageous. If it is determined that the conduct is outrageous, it must also be proven that severe emotional distress was the result. The plaintiff
must also establish that emotional distress is so vast they suffered a compensable injury.
If you feel that you have suffered emotional distress based upon bullying in the workplace, consult an attorney to discuss a potential suit. Although many cases are not severe enough for court, an attorney may provide advice based upon your circumstances and conditions.
As most lawyers know, civil rights cases are not where the real money is in the legal profession. But one Long Island law firm has barreled into discrimination cases in the South in the past few years, citing a passion for such work.
“We do the old-fashioned civil rights work,” saidJames Vagnini, one of the three partners at Garden City-based Valli Kane & Vagnini. “If I didn’t make a nickel, I’d be just as happy. I’ve learned a lot. I wanted to do law in a way that I could sleep at night.”
The firm is making money, the partners say. But the cases have taken them into some parts of the Lone Star State where media reports indicate race relations have reached a low point in recent years.
The firm was recently in Paris, Texas, where the town’s largest employer is pipe-manufacturer Turner Industries. Black employees have said that hangman’s nooses, Confederate flags and racist graffiti have appeared at the workplace.
Last week, Valli Kane obtained from the Equal Employment Opportunity Commission a “reasonable cause” letter, saying the federal agency believes discrimination has occurred at Turner and asking the company and its black employees to sit down and discuss the matter.
In response, Turner said it has formed an employee task force “to assist in promoting and maintaining a workplace that is free of harassment or discrimination.” Turner said it has “zero tolerance” for any discrimination in the workplace.
In 2008, Valli Kane took another case to the EEOC, this one in Dallas involving Allied Aviation Services Inc., which agreed to pay $1.9 million to settle a harassment lawsuit filed on behalf of black and Hispanic workers.
The law firm was formed about two years ago. The three met when they worked together at Leeds, Morelli & Brown, a law firm in Carle Place.
Previously, Vagnini had worked for the New York City Human Rights Commission while a law student at Hofstra University in Hempstead. Robert Valli Jr. had been a Queens assistant district attorney, and Sara Kane was an assistant attorney at the New York City Corporation Counsel.
The firm also handles criminal and real estate cases, but Vagnini said more than 75 percent of its work is civil rights or discrimination cases.
“We have a passion for this,” Kane said.
This action was instituted by a group of Smithtown Postal workers who oppose actions by the USPS and its agencies which illegally targeted older employees in an effort to force them into retirement. In doing this, the USPS utilized various techniques including creating a hostile work environment, overly disciplining older employees, and further harassing and insulting older workers. These policies violate the Age Discrimination in Employment Act (“ADEA”).
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