Employment Discrimination

EEOC Releases Workplace Discrimination Charge Statistics

The Equal Employment Opportunity Commission (“EEOC”) has made released its workplace discrimination litigation statistics for 2012.  In total, the EEOC received 99,412 charges of employment discrimination and unlawful termination from October 1, 2011 and September 30, 2012 (versus 99,947 charges in 2011).  The EEOC filed 122 in 2012 (as compared to 261 in 2011).  The 2012 lawsuits resulted in a total monetary recovery of $44.2 million. The EEOC enforces many federal unlawful discrimination statutes, prohibiting workplace discrimination, including Title VII (which covers race, gender, national origin, and sexual orientation, among other protected classes); the Age Discrimination in Employment Act (age discrimination); the Americans with Disabilities Act (disability discrimination); the Equal Pay Act (pay discrimination); and the Genetic Information Nondiscrimination Act (genetic information discrimination).

The most prevalent charges filed with the EEOC in 2012 were for retaliation (38.1%); race discrimination (33.7%) and sex discrimination (30.5%).

If you feel that you have suffered any workplace discrimination, harassment or have been unlawfully terminated, please contact us.

What is Wrongful Termination in New York?

NY Employment Lawyer
NY Employment Lawyer

Our NY employment attorneys often receive calls from potential clients who believe they suffered Wrongful Termination.  However, the term Wrongful Termination is misleading because in New York (and most other states), employment is “at will.” unless there a written agreement.  This generally means that employers can fire or terminate an employee for any reason, or for no reason at all.There are some exceptions to this rule.  For example,

  • Employers cannot discriminate against you on the basis of age, sex or gender, race, national origin, disability or perceived disability, pregnancy status, marital status, or sexual orientation and terminate you because you fall into one of these categories.
  • If you have an employment contract with your employer, which states that you cannot be fired without just cause for a specific period of time.

Otherwise, employers may terminate employees for any reason or for no reason at all.  You may find this surprising, but employers may fire you if they don’t like you, or even if they just don’t like the clothes you’re wearing.  It is perfectly legal for employers to be mean when they fire you or to have totally arbitrary reasons for firing you.

However, it is illegal for your employer to terminate you for a discriminatory reason.  if you believe you have been fired forreasons that may constitute employment discrimination or a breach of contract , then you should consider consulting with an attorney.  Our NY employment attorneys are here to help -- please contact us for a consultation if you feel that you have been a victim of wrongful termination or discrimination of any kind.

What is workplace retaliation?

Our New York Employment Lawyers are often contacted by employees who believe that they are being illegally retaliated against. Workplace retaliation is unlawful. If you feel you have been retaliated against for making complaints in the workplace, you should know if you are protected under the law.  Our experienced employment lawyers can help yo to determine if you are being retaliated against. Think about these questions to see if you might be a victim of unlawful retaliation:

  1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
  2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
  3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?
  4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?

Here are some examples of other types of complaints where the law protects you from retaliation.

Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, disability, sexual orientation, or your association with a person in one of these categories, then you have to follow your employer’s published discrimination/harassment policy and report it.

Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.

What to do:

  1. Put it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting.  That way you have proof that you complained about something that’s protected.
  2. If you complain, keep it professional and to the point. Stick to the facts.
  3. Your employer is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
  4. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.

If you have any questions, or think you are being unlawfully retaliated against, contact us.  Our New York Employment Lawyers can help.

Do I Need An Employment Lawyer?

Do I need an employment lawyer? Our experienced New York Employment Lawyers get calls all the time for people who are not sure whether they need an employment lawyer. You cannot bring an action just because you think it was “unfair” to terminate your employment.  There is no such thing as “unlawful termination,” or “wrongful termination.”  Unless you have an employment contract, there is really no such thing as wrongful termination.  So how do you decide whether or not to contact an employment lawyer?

Why …

There are times during the course of your employment when you may need an attorney. For example:

Deadlines: Employment laws are a morass of confusing deadlines and procedural requirements.  If you do it yourself, you might miss something and lose your claim.

Confusing claims: There are some employment laws that you might not know about and there are some laws you think exist, that may not.

Being taken seriously: Some employers will not take you seriously unless you have representation.

Confrontation and advocacy: Some people do not want to find themselves in a confrontational situation or advocating for themselves. Sometimes it’s better to have someone else advocate for you.  Attorneys are trained advocates.

When …

You should contact a lawyer immediately if:

Your current or former employer sues or threatens to sue you;

You are being asked to sign an something that you don’t fully understand, like an employment agreement, non-compete, confidentiality clause, or arbitration agreement;

You have been retaliated against for complaining about discrimination or something illegal the employer has done;

You are not being paid all the wages you’re owed (including time and a half for overtime);

You are misclassified as exempt from overtime or as an independent contractor;

You believe that you have been a victim of discrimination based upon your race, sex, religion, ethnicity, disability, age, pregnancy, national origin, color, genetic information, objecting to discrimination, or request for medical leave to care for yourself or a family member.

Do I have a case?

That’s the million dollar question, isn’t it?  The devil is in the details, but the following checklist should be a good place to start:

Cases involving termination, demotion, or suspension without pay

If you answer “yes” to any of these questions, you may have a claim. Definitely contact us if any of these occurred shortly before you were terminated, demoted, suspended, or otherwise disciplined:

●          You made a worker’s compensation claim shortly before being fired.

●          You recently objected to, refused to participate in, or reported illegal activity or discrimination by the company

●          You recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy.

●          Your employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer.

●          You recently performed jury duty.

●          You recently served in the military.

●          You recently took family or medical leave.

●          You recently served as a witness in a lawsuit or provided testimony or evidence to EEOC.

●          You recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment.

●          Your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week.  Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It is not illegal to discriminate against you for being you. Your boss does not have to like you.  He/she does not have to be nice to you.  However, if the discrimination or harassment fits into one of the categories below, you should contact us to find out more about your rights and your responsibility to report it before you make a claim.

● Race ● Sex ● Sexual harassment ● Religion ● Ethnicity ● Disability ● Age ● Pregnancy ● National origin ● Color ● Genetic information ● Retaliation for objecting to discrimination

If you feel that you have been treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color you should contact us.

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!