Is employment discrimination illegal?

Yes, discrimination in employment is illegal in the United States. Depending on the state you live in, there may be even greater protections, rights, and damages available to victims of workplace discrimination.

What qualifies as employment discrimination?

The laws enforced by the US Equal Employment Opportunity Commission (EEOC), and your individual state, entitle victims to sue for compensation in the event of unfair treatment based on their protected status or protected class.

While these vary from state-to-state, they may include the following: race, ethnic background, visible traits (hair texture, hairstyle, donning of religious garments or items), color, national origin, citizenship status, alienage status, immigration status, lawful source of income (subsidy recipient status), occupation, religion, creed, marital status, partnership status, sex, gender, sexual orientation, gender identity or expression (transgender status), domestic violence victim status, stalking victim status, sex offense victim status, familial status, pregnancy, presence of children, handicap (disability), age, military status, uniformed service, veteran status, first responder status, arrest record, and sealed conviction record.

Does discrimination have to be intentional to warrant compensation?

No. Regardless of whether the discrimination was unintentional or caused by implicit biases, you are entitled to fair compensation.

What is the most common workplace discrimination?

The most common types of discrimination in the workplace include racial discrimination, age discrimination, sex or gender discrimination, and disability discrimination.

Can an independent contractor sue for discrimination?

In many places, you can sue for workplace discrimination whether you are an employee, a domestic worker, or an independent contractor. If you are unsure of whether or not this applies in your state or locale, it’s best to consult with a skilled employment discrimination lawyer.

Who do workplace discrimination laws apply to? 

You have a right to compensation if you are discriminated against by anyone in the workplace. This could include a boss, coworker, vendor, client, patron, temp agency, or franchisor. 

Where can discrimination occur?

While workplace discrimination often occurs in the office, it can happen anywhere—over a conference call, in a meeting, at a holiday party, or at a work lunch—so long as you were fulfilling your work responsibilities at the time of the discriminatory incident. 

How do I know if I have been discriminated against at work?

Federal and state laws prevent hiring managers from changing available compensation, rates of pay, hours, or availability of employment based on your protected class status. Wages must be substantially equal between genders and, in cities like New York City, wage transparency will be required when jobs are advertised.

If you have been treated unfairly in any of these ways, have been spoken to in a demeaning way, or have been subjected to offensive jokes or comments based on your protected class status, then you may have a case for workplace discrimination and should consider reaching out to an experienced New York discrimination lawyer.

Can I be fired for speaking out against discrimination?

Not legally, no. If you are speaking out against discrimination in the workplace, you are protected from retaliation. This is true regardless of whether you are speaking out for yourself or on behalf of someone else. If you or a loved one have been fired or treated unfairly for speaking out against discrimination at work, we would love to take on your case and ensure that you receive the compensation that you deserve. Give us a call.

Can you sue for workplace discrimination?

Yes. Not only is it possible to sue for workplace discrimination, but Lieb at Law, P.C. has helped countless individuals recover compensatory damages and punitive damages for the pain inflicted by this unlawful act. Workplace discrimination is a violation of your rights and should never be tolerated.

How long do I have to sue for workplace discrimination?

Typically, federal law requires that you make a filing within 300 days of the discrimination (this may be cut down to 180 days based on your state’s laws, or even to 3 months if you work in education in places like New York).  However, certain state law claims can be brought up to 3 years after the incident. So, you should call right away and let us determine if you still have time to bring your case. 

What can I recover if I sue for workplace discrimination?

Employment discrimination claims can result in very high awards because they are designed to compensate victims for lost back-pay, lost front-pay, and experiencing emotional distress / loss of dignity. Additionally, the law provides that victims can recover other forms of compensatory damages, punitive damages, and their attorneys’ fees. In fact, the perpetrator can lose their license (if licensed), be required to take trainings, and be ordered to stop their offensive behavior. There are fines and more. However, we are ethically required to advise you that our prior results do not guarantee a similar outcome. So, you should contact us today and get a tailored evaluation of your specific situation.

Discrimination in employment is illegal throughout the United States and in certain states, like New York, there are even greater protections, rights, and damages available to victims. 

Whether you were discriminated against in your workplace by your boss (owner / supervisor / manager), a co-worker, a vendor, a client / customer / patron, a Professional Employment Organization (PEO) / temp agency, or a franchisor, you are entitled to compensation. This is true wherever the discrimination occurred (at the office / zoom / conference / meeting/ holiday party) so long as you were fulfilling your work responsibilities when it happened. This is often even true whether you are an employee, domestic worker or independent contractor. This is even true if the discrimination was unintentional or caused by the perpetrator's implicit biases. 

Anti-discrimination rights and protections entitle victims to sue for compensation if discrimination occurred because of your protected status / protected class, which statuses / classes vary throughout the United States, but may include your race, ethnic background, visible traits (hair texture, hairstyle, donning of religious garments or items), color, national origin, citizenship status, alienage status, immigration status, lawful source of income (subsidy recipient status), occupation, religion, creed, marital status, partnership status, sex, gender, sexual orientation, gender identity or expression (transgender status), domestic violence victim status, stalking victim status, sex offense victim status, familial status, pregnancy, presence of children, handicap (disability), age, military status, uniformed service, veteran status, first responder status, arrest record, and sealed conviction record.

The law prevents hiring managers from changing available compensation, wages, rates of pay, hours or other terms and conditions, or availability of, employment based on your protected class status. Job listings can't be discriminatory on their face and in places like NYC, wage transparency is required when jobs are advertised. Plus, wages must be substantially equal between the genders.

Employment discrimination laws apply beyond hiring, where firing / discharge / layoffs cannot be motivated by discrimination either. Speaking of termination, be warned that severance agreements generally waive your anti-discrimination rights so don't sign them if you think that you have a claim until you speak to your lawyer.   

Most importantly, workplace discrimination laws protect workers while they are on the job where seniority or other privileges of employment cannot be influenced by discriminatory animus. Stated otherwise, sex can't be traded for job benefits and no one should experience a hostile environment where they are treated inferiorly to someone else because of their protected class status. The old boys club is over and we now exist in a meritocracy.  

To get this message across, many places, like NYS, require employers to provide anti-discrimination trainings, policies, and complaint forms to employees/ independent contractors.  

Beyond discrimination laws preventing employers from treating victims inferiorly, employees who are handicapped / disabled are also entitled to receive reasonable accommodations (change to policies / procedures / rules) and reasonable modification (change to structure) so that you can enjoy equal employment opportunities. Plus, if you are a disabled employee, your actual diagnosis need not be fully revealed and can remain confidential when you seek such an accommodation / modification. The most common handicap / disability cases that we see involve job task changes, reserved parking, modified work areas, and other failure-to-accommodate cases. When it comes to handicapped / disabled people, it's all about providing access.  

The same is true for religious accommodations. Simply put, unless its an essential job function or causes your employer an undue hardship, your employment opportunities should not be denied for religious observance. The most common religious accommodation that we see are flexible schedules, because your holidays or high holy days may not be the same as your employers, and dress code flexibility so you can wear the appropriate attire to respect your belief system. 

Don't be afraid to speak-up. If you are advancing an anti-discrimination right, you are protected from retaliation. Even if it is ultimately found that you were not discriminated against, you can nonetheless be compensated for facing unlawful coercion, intimidation, threats, or other types of interference with your anti-discrimination rights. This is not just true if you are advancing your own rights, it also applies if you are an ally who is aiding and/or encouraging someone else to exercise their rights to be free from discrimination. 

Title VII, the Americans with Disabilities Act, and other state / local anti-discrimination laws make work available to everyone without stigma, loss of dignity, or other harms. If you are a victim, you can recover compensatory damages (being made whole with emotional distress damages, back-pay, front-pay and/or reinstatement), punitive damages (punishment damages), and your attorneys' fees. The perpetrator can lose their license (if licensed), be required to take trainings, and be ordered to stop their offensive behavior. There are fines and more. Discrimination is wrong and must be stopped. 

Attorney Advertising. 

If you think that you are being discriminated against at work, in housing, within education, or during any other aspect of your life, you should take the following 5 steps immediately:

1. Make Records: Memory fades and uncorroborated facts are unbelievable so you need to create evidence if you plan to bring a discrimination claim. If you live in a state like NY, where recording a conversation only requires one-party consent, then, start recording all of your conversations with witnesses and perpetrators immediately. If not, stick to a daily diary of events. Either way, get that evidence recorded starting now.
2. Save Documents: If discrimination is occuring at work, make sure to take all of your employment agreements, policy manuals, and procedure documents and put them onto your personal computer or turn them into printed form. If discrimination is happening in housing, compile your lease, house rules, and all other written documents and make sure they are similarly saved. Remember, from the moment that you believe that you are a discrimination victim, you need to start creating a file of all the relevant documents to the discriminatory events, including everything peripheral thereto. When in doubt as to whether a document is relevant, save the document. 
3. Befriend Witnesses: They say it takes a village and that couldn't be more true when you are trying to overcome discrimination that is wronging you. To win a discrimination case, you need allies and advocates in your corner. Did you know that your allies are also protected under discrimination law and can bring a claim themselves if they face retaliation for assisting you? 
4. Stay Strong: Most victims are afraid to fight for their rights because they fear that they will face a worse situation if they speak up. If this is you, please know that every act of retaliation against you gives you a further legal claim against the perpetrator. Did you know that even if you lose your discrimination case, you can still recover damages on a retaliation claim? So, don't be afraid to speak up and fight for your rights.  
5. Protect Yourself: This is the most important tip that we can give. You should always worry less about your ability to sue for damages incident to being discriminated against and worry more about being safe. If you feel in danger, always get out of that situation immediately and call the police. 

We always tell discrimination victims that you are protected from retaliation. In fact, if you are retaliated against, you can sue for that too. Interestingly, if you are retaliated against on an alleged discriminatory event, which is ultimately found in court to not constitute discrimination, you can nonetheless recover damages for the retaliation on that non-discrimination.

Retaliation protection is really important so that victims have a voice and are not silenced by powerful companies. 

Yet, the bounds of retaliation are rarely defined and employees often wonder what an employer can do against them if they complain about discrimination.

On March 16, 2022, Governor Hochul clarified the answer to that question by signing S5870 into law and thereby expanding the definition of retaliation, at Executive Law 296(7), to now include: 

Disclosing an employee's personnel files because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article, except where such disclosure is made in the court of commencing or responding to a complaint in any proceeding under this article or any other civil or criminal action or other judicial or administrative proceeding as permitted by applicable law.

However, as always, clarity brings more confusion. While the law's stated purpose is "[t]o clarify that release of personnel records to discount victims of workplace discrimination counts as a retaliatory action...," the law fails to define "personnel records" and, as such, questions remain.

Specifically, how many small / medium businesses even record "personnel record"?

Is a boss disclosing their memory of an event, which is unrelated to the discrimination complained of, a personally record? 

Is the work product of a discriminatory complainant a personnel record?

All we can say is that discrimination laws are designed to protect victims. So, if you are confused, assume that everything related to the employee is a personnel record until a court narrows that definition when this issue is eventually fought out before a judge / jury.

Until then, more protections for victims is a welcome sign in NYS that discriminatory retaliation won't be tolerated.

Last week, we reported that Caregiver Discrimination Protection passed the NYS Senate. 

Interestingly, this week, the US Equal Employment Opportunity Commission (EEOC) published an update on Caregiver Discrimination Under Federal Employment Discrimination Laws. 

This document reminds employers and employees that "it would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives."

In fact, there are 18 FAQ reminders that should be studied by anyone who has the responsibility to balance caring for another with their job responsibilities. 

Also, employers should review the document and focus in on the Best Practices for Workers with Caregiving Responsibilities to update their EEO policies. 

On 3/15/2022, 3 important workplace discrimination laws made their way to the NYS Governor's Desk to be signed and enacted. 

A7101 - Prohibits the release of personnel records as a retaliatory action against employees who complain or assist in proceedings involving unlawful discriminatory practices by employers.

On March 8, 2022, S5063 was passed by the NYS Senate. It's now with the Assembly. 

The law would prohibit employers from discriminating against individuals based on such individual's status as a caregiver. 

This law will fill an important protection for employees who typically argue familial status discrimination or sex discrimination in such circumstances, but both categories really are like fitting a square peg in a round hole. 

As the Bill's Justification explains, "18 percent of adults in the United States have caregiving responsibilities" and these people need access to reasonable accommodations in limited circumstances, such as supervising "the diagnosis, care, or treatment of mental or physical illness, injury, or health condition of the care recipient." 

In NYC, caregiver status is already protected. So, if you work there, you already have rights. 

On March 7, 2022, the NYS Senate joined the Assembly to pass a bill (now going to the Governor to be enacted), which establishes a hotline for complainants of workplace sexual harassment. 

The Bill's Justification explains that "[n]early 75% of all sexual harassment goes unreported," and it envisions that this toll-free hotline, available, "at minimum, Monday to Friday from 9 a.m. to 5 p.m.," which will "connect complainants with experienced pro-bono attorneys who will help make them aware of their legal rights and advise them on the specifics of their individualized cases," will result in more reported claims. 

The issue with this STUPID Bill is two-fold:

1. Who needs a toll-free line in 2022? Aren't we past the time when telephone companies charge per second of use? Don't most people utilize VoIP or cell phones? What decade is the NYS Government operating in? Have they heard of the world wide web? 
2. Why are they referring to pro-bono (free) attorneys on a type of case where the plaintiff can recover their attorneys' fees from the plaintiff, by statute, and almost no plaintiffs pay their attorneys hourly fees? Sounds like a lipservice law to us, no?

 

Since 2021, federal employees have been protected from workplace discrimination by the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, which added protections, notice, and reporting to the No FEAR Act.

To implement the Cummings Act, the Office of Personnel Management (OPM) published proposed rules on January 6, 2022, which are currently in the public comment period. 

These rules include:  

• Whistleblower and retaliation protections;
• Notice of findings of intentional acts of discrimination to be made on a publically accessible internet page;
• Agencies to submit annual reports to the Director of OPM;
• Agencies to submit disciplinary action reports to Equal Employment Opportunity Commission (EEOC);
• Agency employees found to have intentionally committed discriminatory acts, including retaliation, will have notations of the discriminatory acts added to the employee's personnel record;
• New public disclosure obligations; and
• Federal agencies to add new trainings for all employees about their rights and remedies under law.

According to the current version of the INVEST in America Act, which passed the Senate on August 10, 2021, all "contractors and subcontractors utilized in carrying out activities funded under title 23, United States Code, should institute respectful workplace policies and provide effective, ongoing workplace training to create safe, respectful work sites that are free from bullying, hazing, discrimination, or harassment." 

For clarity, title 23 of the United States Code is the law about highways. So, if you plan on working on the highways, anti-discrimination trainings must start now!

Do you think that this should be part of the law?

Is anti-discrimination training needed?

Either way, this is a signal that discrimination lawsuits are happening with increased frequency. So, protect yourself today and learn the law. 

The EEOC just released its Compliance Manual on Religious Discrimination and lack of religious faith is protected from discrimination at the workplace.

You hear that? Atheists & agnostics - you matter too!

Here is what the manual states:

Definition of Religion

Comment: Some commenters expressed concern that the draft did not make sufficiently clear that Title VII protects against discrimination based on a lack of religious faith.

Response: The Commission has made additions to reference repeatedly that discrimination based on a lack of religious faith is prohibited.

A homosexual detective was just given his chance to prove that he experienced workplace discrimination at a trial and recoup damages.

Here are his facts:

• His homophobic colleagues vindictively called other officers wherever he was stationed & told them to harass plaintiff because he was gay;
• 2 Sergeants constantly made homophobic slurs at civilians & gay officers in his presence; 
• He endured over a year of homophobic derision, harassment, and verbal abuse;
• He was singled out to do tasks, which his peers were not required to do, such as:
• He was repeatedly required to enter a holding cell, by himself, with prisoners still inside, while plaintiff carried metal and wooden cleaning implements. This was potentially dangerous, as plaintiff could have been overwhelmed & attacked by the prisoners. Other officers were not required to do it, as it was usually a task for the maintenance crew; 
• He was required to go on foot patrol alone during the midnight shift in dangerous areas at the 77th Precinct while other officers patrolled with partners;
• He was given extra work when he arrived on the job; and
• He experienced some new or escalated conduct after he started to fight the discrimination, which could be deemed retaliatory.