What To Do If Being Harassed At Work

sexual harassment in the workplaceThose who suffer sexual harassment in the workplace do not have to tolerate the behavior; there are options. However, people who suffer through sexual harassment in the workplace are often hesitant to report the behavior. They are intimidated by the fear that reporting this degrading and demeaning behavior could have negative consequences. These feared consequences could include termination, damage to prospects of future employment, demotions and negative transfers. These potential negative consequences can be mitigated by empowering the sexually harassed individual to stop the behavior and demand redress for the professional and emotional distress as a result of the illegal behavior.
Sexual Harassment and Employment Law
Sexual harassment falls under the federal employment discrimination laws. In many areas, it not only violates United States federal law, but state and local laws. Employers are obligated to take action to prevent sexual harassment at the workplace. If sexual harassment is reported to the employer, immediate action must be taken to deal with the situation. In addition, the employee reporting sexual harassment is legally protected from retaliation by the employer.
 What is Sexual Harassment?
Sexual harassment comes in many forms. Some of these forms include:

  • Being directly asked for sex or sexual contact.
  • Unwanted and unwelcome sexual advances. This can be requests for dates or requests for meeting outside of the workplace.
  • Sexually charged speech.
  • Physical contact of a sexual nature.
  • Being required to function in a hostile work environment.
  • Behavior deemed inappropriate to the workplace. This includes sexist and derogatory language and pornographic images in the workplace.
  • Discriminatory and unfair treatment, including denial of opportunities and promotion, based on gender.

Should I Pursue a Sexual Harassment Lawsuit?
Individuals victimized by sexual harassment are often reluctant to pursue a lawsuit. They are often caught in the dilemma of fearing the potential of negative consequences of reporting sexual harassment, while knowing that action must be taken. Attorneys experienced in sexual harassment cases take great care in the way they treat clients that have been victims of harassment. Great attention will be given to the privacy of the client. And, if possible, the case will be pursued on a completely private basis through negotiations with the employer or through filings with agencies such as the EEOC which are charged with the responsibility of investigating claims of such harassment.
Whether it is sexual harassment or other forms of discrimination in the workplace, it is important to understand the rights and legal options of the worker.  If an employer has violated your rights, set up a no cost consultation with a law firm that is experienced in workplace discrimination.

Gay Workers Rights in New York State since the Passage of the Marriage Equality Act of 2011

The Gay Marriage Equality Act was signed on June 24th 2011

With the passage of same-sex marriage in New York, many individuals are wondering what if any effect it will have on employers and their obligations to their employees.  While there is currently no federal law in place to protect the rights of gay and lesbian workers, New York State has such a law.  In 2003, the New York legislature introduced the Sexual Orientation Non-Discrimination Act (SONDA), to combat discrimination against gay individuals in the workplace.
SONDA was passed on January 16, 2003.  The act “prohibits discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights.”  Employees are protected against an employer’s discrimination whether or not the employer’s beliefs of the employee’s sexual orientation are true or false.  For instance, if an employer in New York State discriminates against their employee because they believe they are gay, even if the employee is not, they are still granted protection under SONDA.  SONDA specifically added “sexual orientation” to the already protected classes in New York, such as race, sex, and religion.  Because of SONDA, sexual orientation has become a protected class under State law, Human Rights law, Civil Rights Law, and Education Law.
The GMEA will take action on July 24th 2011

A New York employer cannot fire or withhold a hiring of an employee simply because of their sexual orientation.   If an employee was terminated, discriminated against or harassed in any way at their employment based on their sexual orientation, they should contact the New York State Division of Human Rights or an attorney.  Wronged employees can collect lost wages and benefits, as well as compensatory damages for their pain and suffering.
The one exemption under SONDA is when the discrimination comes from a “religious or denominational institution or an organization operated for charitable or educational purposes that is operated, supervised, or controlled by or in connection with a religious organization.”  In these limited circumstances, if the employee has been wrongfully terminated or not given a job opportunity based on their sexual orientation, the employer is not liable if the action taken was based on religious principles.  This exemption will not apply to public sector jobs or private for-profit companies.
On the federal level, the only protection against discrimination based on a person’s sexual orientation is given to employees who work for the government.  Aside from these circumstances, there is no federal law currently in place protecting employees based on their sexual orientation.  Being currently considered is the Employment Non-Discrimination Act (ENDA) of 2009.  With ENDA’s passage, employers would be prohibited from discriminating against an employee based on their sexual orientation and gender identity.  Additionally, ENDA would prohibit an employer from using a person’s sexual orientation or gender identity as a basis for hiring, firing, promotions, or compensation.  Unfortunately, ENDA is still only being discussed and is not yet on the books.  At this current time, there is still no federal level protection for employees who have been discriminated based on their sexual orientation in the workplace.
Although there is no federal level protection, employees who have been wronged based on their sexual orientation should still consider other avenues to pursue if such discrimination occurs.  For example, employers can be liable for other employment and labor law theories such as defamation, wrongful termination, invasion of privacy, negligent infliction of emotional distress and sexual harassment.  An employee who has been discriminated against based on their sexual orientation should not be discouraged with the lack of federal protection, but should rather contact an attorney and see what tools they do have at their disposal.
With the passage of the Marriage Equality Act in New York State, many of these discriminatory issues may come to light and have more presence in the future.  Employees who have lacked the right to marry in the past now can, and should, be free to exercise that right without caveat and repercussion.  If you have been discriminated against because of your sexual orientation, contact Valli Kane & Vagnini to see what your legal options and remedies are.

Protect Your Privacy in the Workplace

Employers are utilizing new technologies to monitor employees on computers, telephones, email and video.  There are very few federal laws that protect a worker’s privacy.  Therefore, if you are using company owned devices your employer can legally read your email conversations, listen to your personal telephone calls and check what websites you are visiting.
According to a 2007 American Management Association’s “Electronic Monitoring & Surveillance Survey”, 73% of employers monitored email messages, 66% scrutinized Web surfing, 48% watched over video surveillance, and 45% checked keystrokes and computer files.  In some cases, employees are unaware of the company’s privacy policies and are being monitored oblivious to the watchful eye.
Because privacy rights are virtually unregulated, it is the employee’s responsibility to become informed of the company’s policies and to regulate their usage on company devices.  Privacy policies can be presented in memos, employee handbooks or at meetings.  It can even be as simple as a sticker on a computer or phone that displays the company’s rights to surveillance.
Always be mindful of what you say and do at work.  Improper usage of employee technology can lead to termination.  Therefore, it is important that anything that is private is communicated through personal devices or emails.  Use a mobile phone or pay phone for personal calls, and create your own personal email for discussions that are not work-related.  Be wary of your social network sites as well.  According to a 2009 survey, 60% of executives believe they have a right to monitor employee’s social networking sites to see how employees portray themselves online.  Don’t ever bad-mouth your workplace or boss on social networking sites, as there are no laws to protect you from termination.
If you believe that your employer is monitoring you for discriminatory reasons, it is important to take the necessary precautions to protect yourself. If you are being monitored more than other employees, or are being isolated as the sole employee being watched, file a complaint with HR and document any instances that attest to your claim.  It may be advisable to consult an attorney if workplace discrimination is present.
If you are pursuing a legal claim against your employer, or even if you are just contemplating one, the most important way to protect yourself is to always use personal means of communication when contacting your attorney or a prospective attorney.  Attorney-client communications may not be privileged if they are taking place over your work phone, email or other device owned and monitored by your employer.
Always assume that your workplace communications are being monitored, and protect your rights by avoiding personal conversations on company property.

Performance Reviews: How to Respond to Discrepancies

At least once every year, employers and employees at certain firms fine-tune their working skills in preparation for the employee review.  Raises and bonuses sometimes result from a positive employee review, but other times the reviews might lead to demotions or termination.  Sometimes, performance reviews may produce no end result other than providing the employee with feedback and areas for improvement.  When you receive a review you might not agree with, it is important to take the proper steps to solve what is considered to be the problem. Because many courtroom decisions rely on employee reviews to determine if termination is legal, employees should fully understand their review and discuss any discrepancies with their employer.
It is important to keep in mind that a good review doesn’t guarantee a raise or promotion, nor does a bad review always warrant termination.  The most important step is to understand your review fully in order to comprehend the level of performance your employer expects from you and how that may reflect in your performance review, and to document any discrepancies you may have.

  1. Always read your review carefully and objectively. A review aims to summarize areas that you are adept at, as well as point out areas for improvement.  It is important to remember that all workers are encouraged to progress and advance in the field, and the review is your employer’s form of communicating their expected improvements.
  2. Provide thorough and logical reasoning as to why you disagree, but understand this may not change the result of the review. It is important to show how valuable an employee you are by providing evidence that attests to your successes.  However, it is important to accept comments about areas where you may need improvement, because acknowledging this will prove to your employer that you are attempting to better your work ethic to support the team.
  3. Maintain a calm and constructive attitude. Reviews are intended to be used as constructive criticism.  Your attitude about advice implies a lot about your work ethic and dedication.  If you believe there are flaws within your review, you should request to speak with your employer in a professional manner, and document all attempts you make at approaching the topic.  If you feel you have been wrongly assessed because of discrimination, you should avoid contacting your employer and file a complaint directly to HR.
  4. Sign under protest, and document your complaint with HR. If you strongly disagree with a review or feel that your report was falsified with a discriminatory intent, sign your employee review “under protest”.  Declaring that you object to your performance review should bring the necessary attention to the situation in order to fix the problem.  Document your complaint in a formal letter to HR, and specify any discriminatory actions or instances that affect your work environment.  However, refusing to sign an acknowledgment in and of itself can be deemed insubordination and be considered grounds for termination, so do not refuse to sign it.  Rather, indicate that you are signing that you have seen it but do not agree with it, or are doing so “under protest.”