Harrassment

Liberal Standard for Hostile Work Environment Claims Under the New York City Human Rights Law

Sexual Harassment – New York City A group of female plaintiffs alleged that the defendant, a doctor, created a sexually hostile work environment in violation of the New York State and City Law.  Plaintiffs claimed that the doctor sent them, as well as other employees (both male and female), offensive emails, and made various sexual comments and gestures toward them, including remarks regarding their breasts. The lower court granted the doctor’s motion for summary judgment, reasoning that the doctor’s conduct would be equally offensive to male and female employees. On appeal, the appellate court held that a jury could reasonably determine that the defendant sent the emails to provoke a reaction from women in the office, and that the plaintiffs were singled out from male employees. The appellate court held that the plaintiffs’ evidence fell short of meeting the severe and pervasive standard required to state a claim under the New York State Law, but that under the City Law, questions of severity and pervasiveness are irrelevant. Accordingly, the appellate court held that the plaintiffs’ claim survived because the doctor’s conduct, even if “isolated,” signaled that the doctor considered it appropriate to foster an office environment that degraded women.  The court therefore reinstated the plaintiffs’ claim under the City Law.  The case is Hernandez v. Kaisman, No. 104989/07 (1st Dep’t Dec. 27, 2012).

If you feel you have been subjected to a hostile work environment, or have been unlawfully terminated, please contact us.

Should I Quit My Job?

NYC Severance Attorneys
NYC Severance Attorneys

Should I quit my job? Our experienced New York Employment Lawyers are asked this question all the time.  Usually, the answer is NO.  If you are thinking about quitting, contact one of our experienced New York Employment Lawyers and Severance Agreement Lawyers.  We can help advise you and possibly soften your landing with a severance agreement. In most states, harassment and bullying are not illegal.  These are only illegal if they are due to race, age, sex, disability, color, national origin, religion, pregnancy, marital status, sexual orientation, genetic information, objecting to an illegal practice of the employer, making a worker’s compensation claim, taking Family and Medical Leave, your testimony under subpoena, serving on jury duty, or some other legally-protected category.

What you should do is report the harassment or bullying to human resources or whoever the appropriate person at your company is.  Make the report in writing.  You have to give your employer time to investigate and take action to stop it.

You should also consider whether you are a victim of constructive discharge. A humiliating demotion, punitive transfer or hostility toward you are among the types of changes that might entitle you to claim constructive discharge after you resign. For example, if you resign because of intolerable discrimination or sexual harassment, or because your employer transferred or demoted you to an undesirable position in retaliation for reporting a wrongdoing, your immediate, resulting resignation might constitute constructive discharge.

Nevertheless, the law hates quitters – don’t do it.  If you want to leave, please contact us – we can help.

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!