Sex or gender discrimination still happens at work. Most of the time employers know the gender of the persons they hire. Employers almost never admit that they don’t care for one gender or the other. Sometimes a supervisor is forced to hire someone. Or maybe no one from the “preferred” gender was available when you were hired. Or maybe you remind your employer of a bad relationship in their own personal life. Any one of these examples or many others could be gender discrimination.

Race discrimination is no less serious. Employers might defend race discrimination by denying race played any part in terminating you. They knew your race when they hired you and still hired you. But that does not mean that your cultural traits or beliefs or appearance did not motivate the employer to fire or demote you. Bias is still with us and it is even more evident during times of mass social unrest.

The disabled and perceived as disabled are subjected to adverse employment actions every day. Recovering drug or alcohol addicts are protected as long as they no longer abuse drugs or alcohol.

None of the above are easy to prove. Even if an employee has recorded many hours of what sound like discriminatory comments many employers are savvy enough to raise legitimate, non-discriminatory reasons for their employment decisions when pushed to do so.

In 2019 New York’s Executive Law was amended, making harassment based on any protected class, a little easier to prove. It’s still not easy to prove contrary what you may hear some lawyers claim.

Circumstantial evidence is not direct evidence. And circumstantial evidence is the type of evidence usually gathered to prove discrimination at work.

The most common classes of employees who file complaints or discrimination charges include ones for:

  1. Race discrimination
  2. Sex or gender discrimination
  3. Disability or associational discrimination

Bullying by itself is not discriminatory. A victim of bullying is a member of at least one protected class. Those classes could be one of the three just mentioned or others. Here’s a video where I talk about why bullying by itself is generally not employment discrimination.

https://youtu.be/5uTGHplQKiM
 
Employment discrimination is challenging but easier to prove under New York’s revised Human Rights Law. When the bullying is because of an employee’s race, sex, gender, sexual orientation, disability, a combination of those or others, it is usually prohibited by law.

It is not uncommon to find race discrimination combined with gender or sex discrimination. An employer might, for example, attempt to defend race discrimination by showing that a black female was replaced by a black male or vice versa. Such a defense is easily attacked. Black males are distinct from Black females just any other race of males is unique from its females. Neither race nor gender are interchangeable by themselves.

Neither sex nor race nor any other combination of protected classes should be compared in isolation of other protected classes. Black males are unique to black females. Neither males nor females of any ethnicity or race should be compared with others who do not share similarities which might be referred to as intersectional protection.

Similar analyses apply for sex and disability discrimination.

Sometimes employees are subject to associational discrimination.

Subjecting an employee to disciplinary action for their association with a former alcohol or drug addicted person is illegal. Associational discrimination applies to sexual identity, disability or perceived disability status, age and every other protected class of employee.

On August 12, 2020 sexually harassed employees will have up to 3 years to file such claims with New York’s Division of Human Rights instead of the current 1 year to do so.

Other less frequently filed employment discrimination charges or complaints, expanded by the New York State and New York City Human Rights Laws, include:

  • Religion or creed
  • Age – shall not be a factor at all in New York State; shall not be a factor for those over 40 under federal law
  • National origin
  • Sexual orientation
  • Gender identity or expression
  • Military status
  • Predisposing genetic characteristics
  • Familial status
  • Marital status
  • Domestic violence victim status

Some highlights of the 2019 enhanced New York Executive Law include:

  • Elimination of the severe or pervasive requirement unless an employer shows the actions to be “petty slights or trivial inconveniences” which are not actionable
  • No longer necessary for employees to identify some “similarly situated person/employee” who was treated more favorably
  • Unnecessary for employees to complain to employers or to file grievances placing employers on notice
  • Non-employees are now protected from workplace discrimination AND the NYS Human Rights Law now applies to all sizes of employers and not just those with 4 or more employees
  • Punitive damages are now available but only against private employers
  • All employment cases may have attorney’s fees awarded
  • Nondisclosure agreement in all employment discrimination cases can only exist if the complainant or employee prefers same

Employees must keep in mind that under state law, complaints must still be filed within 1 year of an adverse employment action. For employment sexual harassment claims that time period will be extended to 3 years on August 12, 2020.

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The Glory Days of Public Service – from the Westchester Lawyer Magazine, May 2019(Opens in a new browser tab)

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