“Because of sex” discrimination forbidden statewide but NYC Human Rights Law stronger

What makes a workplace hostile?

Nasty behavior does not necessarily make a workplace hostile.

Talking down to employees or experiencing personality conflicts at work does not necessarily make your workplace hostile.

New managers demanding extreme productivity from employees does not by itself make a workplace hostile.

The above are just a few reasons why retaining a private employment lawyer early in the process can help you. You don’t have to. But all governments are stretched on staff and resources. And retaining an employment lawyer to fight a hostile workplace, possibly filing charges or complaints, can only help you and the government do its job.

Just scratching the surface of a hostile workplace analysis

Doing a hostile workplace analysis takes time. Documents are often reviewed, witnesses are identified, interviews can take hours, and legal research needs to be done.

What class or classes of protected employees do you and those who work with you belong to?:

  1. What is your gender? Are you being harassed because of your gender; male, female, transitioning or questioning (LGBT)? Are you or co-workers subjects of sexual harassment?
  2. What is your race? Do you feel alone at work because others on your team are employees who are not your race or color?
  3. What about religion? Do others treat you differently or comment about you being religious or observant?
  4. Is your national origin unique and creating stress at your workplace?
  5. Have you been targeted because you are gay or lesbian? Do your managers or co-workers think that you are not masculine enough or feminine enough?
  6. Do you have a physical or mental disability? Whether or not you have such a condition does your employer treat you as if you do?
  7. Is your age being taken into consideration regarding the terms and conditions of your work?

A hostile workplace analysis starts with you. No employer has to be civil to you. The U.S. Supreme Court tells us that workplace laws are not a civility code. Employers do not have to be nice to employees.

Supervisors who dislike employees

Supervisors, often new ones, who do not like employees they supervise are not acting illegally. They can treat all employees poorly. But these supervisors may not dislike employees or treat them badly because of any employee’s protected class status. Supervisors may not use gender, race, religion, national origin, sexual orientation, disabilities, or an employee’s age as the basis for treating one or more employees poorly. That is illegal.

Your gender, race, religion, national origin, sexual orientation, disabilities, and age are, for the most part, not things you can change.

If you can’t prove discrimination, what else might protect you?

To be protect yourself from “at will” employment, which includes “at will” termination, you need a written employment contract, collective bargaining agreement, or you might work for the government. Otherwise, your protection, if any, might come from one or more classes of protected employees to which you or your co-workers belong.

Maybe you were misclassified as salaried and exempt from overtime pay although you kept track of the hours in excess of 40 that you worked each week for past years; going back up to 6. https://www.urbanylaw.com/new-york-employment-law-914-366-7366/unpaid-overtime/

Why is it so hard to prove wrongful termination?

One reason is that the common law is alive in New York. Employees owe duties of loyalty to their employers. Employees may not be Faithless Servants. They owe duties to their employers; historically called masters and their employees were the servants.

Another reason is because unions began representing those employees who were most discriminated or taken advantage of. Employees can not be prevented from organizing labor unions. They have freedom to negotiate collectively.

Still another reason is because civil servants were given statutory protections. They have more due process rights than most.

No employee is prohibited from private employment contracts. Of course, that is easier said than done. But the highest paid often have some written contracts, including commission agreements mandated by law for those who work on commission.

The remaining completely “at will” employees are often left with trying to prove some form of discrimination or simply getting other jobs.

How were protected classes decided?

Legislatures looked to the classes of employees who had been discriminated the most. History was a major factor. Which groups or classes had been harmed or taken advantage of the most?

Many of these groups did not have union representation when they needed it most. Lower skilled and lower wage employees benefited most from collective bargaining agreements which helped all members. The industrial revolution made jobs routine, monotonous, and often dangerous. Unions stepped in and negotiated to protect these employees.

Today, the entire workforce has evolved. Many of the original reasons for unions no longer exist. However, the groups or classes which could use union representation the most have often been convinced that unions may be of little use or cost more than the benefits which might be gained.

What will you need to show for hostile workplace discrimination?

Hostile workplace discrimination does not include stray remarks.

You will need to prove a plausible theory of discrimination. A hunch or thought that you may have been subjected to a hostile workplace will not do. Stray remarks do not qualify.

You will need to prove either severe or pervasive discrimination. Severe discrimination can potentially, although rarely, result from one incident. The more common theory will be pervasive discrimination. It will often recur over and over.

Courts will require you or your employment lawyer to conduct due diligence in order to present a plausible theory of severe or pervasive discrimination. This can be challenging even for highly skilled lawyers. https://www.urbanylaw.com/new-york-employment-law-914-366-7366/client-reviews/

Why is reporting important?

Reporting is important because employers need to know about employees creating hostile workplaces. Most employers have policies against sexual harassment. Some of those policies are outdated. Some are not followed. There are no anti-bullying laws for private employers in New York State. Anti-bullying is usually limited to public and private schools.

Another reason for reporting is that laws allow employers defenses if they act reasonably (i.e. employee training, providing a reporting hotline) and their employees (i.e. you) do not follow through with the steps which your employer gives you; assuming your employer’s steps are reasonable.

You must report what you believe to be a hostile workplace to your employer. But before doing so, calling employment lawyers is always suggested.

You fear losing your job

Your fear of a job loss is rarely an excuse for not reporting.

One exception might be when your supervisor or the owner has contributed to or created the hostile workplace themselves.

Even witnesses at hostile workplaces say: “I don’t want to get involved because I don’t want to lose my job.” All government investigative agencies publish anti-retaliation provisions. If employers were not prohibited from retaliating against employees who tell the truth none of these laws would work.

If your witness tries to help you and bad things happen to them for doing so that is retaliation. That is illegal.

Are you covered if your employer is small?

“Because of sex” discrimination” protects you even if you are the only employee working for any employer in New York State.

For most other types of hostile workplace discrimination under New York State’s and New York City’s Human Rights Laws your employer must employ 4 or more employees.

For most other types of hostile workplace discrimination, excluding “because of sex under state and city laws”, the EEOC investigates laws, most requiring your employer to employ 15 or more employees.

Did you wait too long?

New York State Supreme Court might allow you to sue within 3 years of an adverse employment action. However, this is not recommended unless it is your last resort. For example, you missed the 1 year deadline as described below.

The New York City Human Rights Commission gives you 1 year from an adverse employment action to file a complaint.

The New York State Division of Human Rights gives you 1 year from an adverse employment action to file a complaint.

The U.S. EEOC gives you 300 days from an adverse employment action to file a charge or charges of discrimination.


How long does it take to resolve a hostile workplace claim?

It depends.

Your facts are critical.

We might begin with a demand letter. Or maybe a telephone call. In some cases filing as soon as possible is the best choice.

Skilled employment lawyers are your best choice. Handling your own claim is never recommended unless we assess that there may be serious issues with your claim or with your commitment. If you have already been offered a severance agreement. https://www.urbanylaw.com/new-york-employment-law-914-366-7366/severance-agreement/ Maybe your employer realizes it did something that could be argued to be illegal. But either way, pursuing a claim will take determination and commitment.

We get calls from potential clients wanting media attention. Discuss this option carefully with skilled employment lawyers first.

Discuss media attention with employment lawyers. It can backfire and cause more harm.

Where do you start?

Call some employment lawyers. Talk. We all love texts and e-mails but there are not enough hours in any day. You want someone who you can work with and your employment lawyer will probably want you to help. Documents will be needed, social media will be examined, witnesses might be called, medical records might be requested, and any notes, texts, or records you have will be needed.

It takes lots of courage to demand that you were wronged. And that you need recognition. And that you are committed to push forward regardless of the defenses an employer might raise. We have represented clients who were unable to pursue a hostile workplace claim but we discovered that they were improperly paid a salary. And these clients were able to show unpaid overtime hours which resulted in substantial recoveries. These cases are infrequent but they are out there. https://www.urbanylaw.com/unpaid-overtime/

You will hear and recognize the voices of employment lawyers who truly believe in getting justice for you. There are many of us out there fighting against hostile workplaces. Make some calls to employment lawyers. https://www.urbanylaw.com/about-contact/