hostile workplace

Frequently Asked Questions about New York Hostile Work Environment

Simple Q&A on New York Hostile Work Environment Law

Q: How Bad Does it Have to Be? A: Really bad. To win a hostile work environment claim, a plaintiff has to prove that that his or her workplace was “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002). In other words, the inappropriate conduct has to be more than a minor issue at work and must have significantly changed your working conditions. Keep in mind, whether or not working conditions have been changed is determined from the standard of a reasonable person. The court will ask, “what would a ‘reasonable person’ think of this situation?”

Q: What is a “reasonable person”? A: A “reasonable person” can vary with the judge. The concept is meant to approximate what an average person would do in the plaintiff’s situation.

Q: Is One Instance Sufficient? A: It can be, but it has to be really bad. A Plaintiff must show “either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). The key is that the working environment has been altered as a result of the conduct.

Q: What About Many Small Things Over Time? A: Same answer as above. If the many small things impact the working environment, they may amount to a hostile work environment. However the series of incidents must be “more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997).

Q: What Factors Do Courts Consider? A: The factors courts examine include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

Q: Does the Conduct Have to be Discriminatory? A: Yes. For example, a plaintiff cannot bring a hostile work environment claim based on race when the conduct had nothing to do with race. The conduct does not, however, have to be directed at the plaintiff. A hostile work environment claim can be brought based on discriminatory treatment of others.

More questions?  Contact us for a free consultation about New York Hostile Work Environment Law.

Does Your Boss Bully You?

Does your boss bully you?  We get this call a lot. The boss is a jerk, mistreats employees, and is verbally abusive. It is awful, it is unacceptable, it is bad for business. More often than not, it is perfectly legal. Bullying is only illegal when it violates certain employment laws. But employment laws do not prohibit bullying, they prohibit discrimination and retaliation. Conduct by your employer is only illegal when it is discriminatory or retaliatory. What Should You Do When Your Boss is a Bully?

1. Try to work it out. More often than not, personality conflicts can be resolved amicably. There are a lot of options here, depending on where you work. You can try to work it out with the supervisor directly, complain to upper management, or just figure out how to make your situation tolerable.

2. Think about moving on. Hate your job? Look for another one. Whether you stay or not is up to you. Think about your finances and career. A word of warning on quitting – if you quit your job, any employment lawsuit will be a lot harder to win.

3. Talk to an employment lawyer. We deal with these situations all the time. We can contact your employer on your behalf, or we can work behind the scenes, helping you with an exit strategy. An employment lawyer can also help you analyze whether you have other claims against your employer, like for harassment or improper payment of wages. The goal is to help you.

If you are working for a bully, think about what you want to accomplish and consider calling an employment lawyer. If you contact us, someone will get back to you within 24 hours.

Granovsky & Sundaresh PLLC - experienced employment lawyers can help
Granovsky & Sundaresh PLLC - experienced employment lawyers 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!