Discriminatory Remarks

My Boss Sent Me a Dick Pic. What Should I Do?

A woman telephoned our law firm the other day to ask one of the starkest questions we've ever heard:  “So, my boss texted me a dick pic last night.  What do I do?” 

It's an infuriating fact of life: women who want nothing more than to have a good career and earn a good living confront some ugly behavior by men.  Sometimes that behavior is outright illegal; sometimes it is merely disgusting.  In either case, it can be helpful to have the advice of an employment lawyer.

So, if your boss emails you a picture of a penis, or if he texts you a selfie of himself in underwear, or if sends you a link to porn, what should you do?

First – Save the message.  You don't have to look at it again, just save it somewhere that it can't be deleted.  For example, if he sends you a picture can only be viewed from your work computer, take a picture of it on your personal phone.  The photo may be repulsive, but it is important evidence.  And the first thing you can do to stand up for yourself and protect yourself is preserve that evidence.

Second – Give yourself some time to think.  Do you like your job, and want to stay?  Or would you prefer to negotiate a severance and move on with your career elsewhere?  Do you want your boss to be fired, or do you want to be able to work with him the future, and move on from this stupid incident?   Do you prefer to handle the situation yourself, or do you want someone else to be your adviser and advocate?   

Third – As the saying goes, "First plan your work, then work your plan."  If you want to leave your job and get a severance, you might want to call an employment lawyer.  If you want to stay at your job, but have your boss disciplined, you might want to report the incident internally.  If you want to handle it privately, you may want to message your boss directly. 

But no matter what, you absolutely do not have to take that sort of nonsense from your boss.  If your boss is harassing you with dick pics or naked selfies or porn, you can contact an employment lawyer and fight back.  Call or e-mail us any time.  We are here to help.

 

Racial Discrimination in The Workplace: Vance vs. Ball

The rules have now changed in discrimination lawsuits and hostile work environments, as proven in Vance v. Ball State University, the US Supreme Court’s workplace discrimination ruling. In a 5-4 outcome, the US Supreme Court altered the landscape in which employees could sue for discrimination and hostile work environments by narrowly defining what constitutes a ‘supervisor’. The federal court defined a supervisor as one with the ability to hire, fire, demote and discipline in the workplace; specifically, one who is authorized to ‘take tangible employment actions against the victim’.

Accused of Racial Discrimination

In the case of Vance v. Ball State, a racial discrimination case, Maetta Vance accused her supervisor, Sandra Davis, of creating a hostile working environment and claimed racial discrimination. Vance, an African American woman, was the only black employee in the catering department at Ball State University and repeatedly suffered racial harassment by co-workers and workers in superior positions, to include Ku Klux Klan references, physical altercations, and demeaning tasks. Vance’s supervisors investigated the claims, but only provided written and oral reprimands to Vance’s co-workers and the harassment continued.

What is a 'Supervisor'

Under the court’s ruling and definition of ‘supervisor’, Vance’s discrimination case was thrown out, as Vance’s supervisor, Sandra Davis, did not meet the newly defined requirements of ‘supervisor’. Although Davis supervised daily work activities and had the ability to impact employment actions, Davis’ functions did not meet the comprehensive definition set forth by the US Supreme Court, as Davis did not have the authority to fire or demote Vance. In light of this failure to meet the new definition, Ball State University could not be held accountable for the hostile work environment. Vance has appealed this ruling based on the definition of supervisor by the Equal Employment Opportunity Commission. The EEOC defines supervisor as any individual in the position of recommending employment actions and assigning or directing daily work activities.

Currently under the decision of the court, workers such as Maetta Vance will have little to no recourse for discrimination and harassment endured in the workplace. Other victims of discrimination and harassment who find themselves in the shoes of Maetta Vance will find proving their case a much heavier burden since the ruling of the US Supreme Court.

Contact Us

If you've been treated unfairly based on a protected characteristic such as race you have the right to sue and seek compensation. Contact a New York Discrimination Lawyer to learn your rights.

Employment Discrimination - Stray Remarks

One remark is not enough to constitute discrimination. When can you bring an employment discrimination lawsuit based on stray remarks? One comment will almost never, standing alone, make a discrimination lawsuit.  Even an extreme statement, such as a racial slur, sexual joke, pornography, or the like is not sufficient to make out a claim for employment discrimination on its own.  There has to be more.  Below are a few examples of what may suffice to show discrimination.

  1. Adverse employment action:  termination, demotion, suspension without pay, failure to hire, etc. might be enough to show discrimination along with that one remark (depending on what the one remark was). For example, if your boss makes a comment about how women with kids need to stay home and then fires you as soon as he finds out you’re pregnant, you might have a pregnancy discrimination case.
  2. Severe or pervasive conduct:  anything short of an adverse action is considered harassment. Harassment has to be either so severe or so pervasive that it alters the terms and conditions of your employment. That means there would have to be many jokes, comments or differing treatment to rise to the level of illegal harassment.

But don’t get us wrong -- the discriminatory remark is very important.  The remark is evidence and if it related to your protected status (e.g., a racial epithet), then it’s direct evidence of discriminatory animus.

What should you do if your boss makes discriminatory comments?

  1. You should report remarks that directly relate to race, national origin, color, religion, age, sex, disability, genetic information or other protected status in accordance with the company harassment policy.  Put the report in writing.  But don’t go to HR every day and every time there’s a problem.  Use your judgment.  Document any remarks and take them to HR after you have a few. While you might report the first remark, if they don’t take action to stop it, then don’t make yourself a nuisance. Do report any acceleration of the behavior or any retaliation.
  2. You have to report harassment before you can even go to the EEOC, and you have to file with EEOC before you can sue. Don’t skip the steps or you’ll have your case tossed.
  3. Bullying isn’t illegal. If the comments don’t relate to your race, age, sex, national origin, etc. then don’t report them unless you’re being treated differently compared to others of a different race, age, sex, national origin, etc. Unfortunately, it is perfectly legal to be an equal opportunity jerk.
  4. Don’t quit.
  5. Contact us.  We can help!