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FAQ

Discrimination

Anti-discrimination laws can be complex, and sometime it is difficult to know what one’s rights are. We offer some guidance on frequently asked questions, below. However, keep in mind that this guidance is not exhaustive, and it is best to have an attorney help you understand the specifics of your situation. Beranbaum Menken has a long track record of protecting people’s rights to be free from discrimination. If you believe you have been the victim of discrimination, contact us to schedule a consultation.

What kind of workplace discrimination is illegal?

Federal, New York State and New York City laws together make the following kinds of discrimination unlawful:

  • Age discrimination against people over 40;
  • Sex & gender discrimination (including sexual harassment);
  • Pregnancy discrimination;
  • Disability discrimination (for more, visit our FAQs on Disability Discrimination);
  • Race and national origin discrimination;
  • Religious discrimination;
  • Genetic origin discrimination;
  • Discrimination against people who are unemployed;
  • Criminal history discrimination, including discrimination based on arrest records;
  • Sexual orientation discrimination;
  • Marital status discrimination; and
  • Discrimination against victims of domestic violence.

It is also unlawful for an employer to retaliate against people (employees or applicants) because they have complained about discrimination, filed a charge of discrimination or participated in an investigation or legal action concerning employment discrimination.

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What kinds of discriminatory actions are illegal?

Of course, many employers may be discriminatory in their attitudes or beliefs (consciously or unconsciously), but that isn’t enough to bring a lawsuit. Discrimination becomes unlawful when an employer takes a discriminatory action against someone which adversely affects the terms and conditions of their employment.

For example, it is unlawful for an employer to do any of the following actions based on an employee’s protected status (e.g. being woman, disabled, over 40 years old, etc.):

  • Refusing to hire them;

  • Firing them;

  • Denying them a promotion;

  • Demoting them;

  • Transferring to a lesser position;

  • Disciplining them more harshly than others;

  • Harassing them; or

  • Paying them lower wages or providing them with lesser benefits.

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What kind of retaliation is unlawful under anti-discrimination laws?

​Not all forms of retaliation are unlawful. Unfortunately, in the United States, employers can fire employees for good cause, bad cause, or no cause at all, as long as it’s not an illegal cause.That means that, say, ratting out your boss for slacking off on his duties may get you fired, and there’s probably nothing you can do about it. But if you complain about discrimination or harassment, the law affords you some protection.

Unlawful retaliation consists of three elements:

Protected Activity:

An employee who makes a good faith complaint about something they believe to be unlawfully discrimination against themselves or others is engaging in a “protected activity,” meaning that the activity protects them from retaliation. Similarly, employees who file or threaten to file a charge of discrimination with the EEOC or who request a reasonable accommodation for a disability are engaging in “protected activities.”

However, if you are retaliated against for something that is not considered a “protected activity,” the anti-discrimination laws may not help you. However, certain other laws may provide protection against retaliation.

Adverse Action:

Retaliation only becomes illegal when it rises to the level of an “adverse action” – that mans the employer did something to you that affect the terms and conditions of your employment. If your employer retaliates against you by simply disliking you, that is likely not unlawful. However, if your employer retaliates against you by firing you, demoting you, refusing to promote you, lowering your wages, or making your working conditions so unbearable that you can no longer perform your work (say, by refusing to give you any work at all for months on end while complaining about your productivity, or physically excluding you from important meetings or isolating your work station).

Causation

Of course, in order for the “adverse action” listed above to be unlawful, you have to show that the action was caused by a desire to retaliate against the employee. That means that if you complain about discrimination, and then ten years later your boss refuses to give you a raise, without any other evidence, you may have a difficult time showing causation. However, if that same boss says that “if you hadn’t been such a troublemaker, maybe you would be getting further here,” you might have an easier time proving your case.

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What kind of proof is required to show that something was discriminatory?

Usually there is no one piece of evidence needed to prove your case. Courts long ago realized that it is rare for there to be a “smoking gun” showing discrimination. Employers rarely tell their employees that they won’t be promoted because they are female or that black workers will face more sever scrutiny at work. That’s why proving discrimination often requires piecing together evidence which, as a whole, shows that the employer treated you differently because of your protected status (say, as a woman or a minority or a person with disabilities). Here are some examples of evidence that can support a claim of discrimination:

Negative comments about your protected status, or remarks showing that your supervisor or employer judges you based on your protected status.

     Here are some examples:

  • “You’re an old man, you’ve been doing this a long time”

  • “She needs to go back to the ghetto where she came from”

  • “How are you going to come back to work and leave your baby?”

  • “You’re so beautiful it’s hard for me to concentrate.”

  • “Aren’t Asians supposed to be good at math?”

Unequal treatment between members of a protected group and other, similarly situated employees.

     This can take the form of:

  • Unequal wages paid to a man and woman for the same or similar work (there is a separate federal law that explicitly forbids this practice,called the Equal Pay Act);

  • A minority member being disciplined more harshly than a non-minority for the same or similar kind of infraction;

  • A younger worker receiving a promotion over an older worker who had is equally or more qualified;

  • A job applicant with an arrest record being denied a job given to someone with the same qualifications who does not have an arrest record.

Stereotyping employees based on their protected status.

 

  • Assuming women will no longer be committed or productive workers once they have children;

  • Assuming older workers are less adaptable or flexible than younger workers, or that they cannot understand new technologies;

  • Assuming black employees cannot act “professionally” enough for high-ranking executive careers;

  • Assuming that minorities make mistakes because of personality flaws, but excusing those same mistakes when made by non-minority employees.

Pretext: 

Sometimes the employer will give an excuse for its poor treatment of an employee. Often they will point to something in the employee’s performance record to justify a termination or a demotion. 

Where these reasons don’t add up or look phony, courts and juries can infer that the reason the employer gave is just a pretext for discrimination. 

For example, if an employer says it’s firing someone, not because they are old, but because of a financially-required layoff, the employee can show that the reason is pretext, because other employees were being hired at the same time. Or if the employer says someone did something wrong, or lacks a certain skill, and the employee can prove that this is simply untrue, a court or jury can infer that the reason is just an excuse for what was actually discrimination.

Violating procedures:

If the employer, in taking action against an employee, is not following its own procedures, courts and juries may infer that something fishy is going on. 

For instance, if an employer requires annual performance evaluations and gives them to everyone except an employee in a protected class, that may be a heads up that something isn’t right, especially if the employer then says that the employee had “bad” performance. 

Similarly, if an employer usually uses “progressive discipline” when disciplining employees – say, by giving a verbal warning for the first infraction, a written warning for the second, and suspension for the third – but fails to follow this procedure when disciplining an employee in the protected class, that may also be evidence that something isn’t right, that maybe the discipline was unduly harsh.

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Where should I go if I think I have been discriminated or retaliated against?

You can contact an attorney experienced in discrimination law, like the attorneys at Beranbaum Menken LLP.  You can also take action on your own, without an attorney, by making an appointment with one of the following governmental agencies responsible for enforcing equal employment opportunity laws:

U.S. Equal Employment Opportunity Commission (EEOC), 800-669-4000 (federal law)

N.Y. State Division of Human Rights, 212-961-8650. New York state law, unlike federal law, protects people from discrimination based on sexual orientation, marital status or status as a victim of domestic violence.

N.Y. City Commission on Human Rights, 212-306-7500. The NYC Human Rights Law, unlike federal and New York State law, protects employees from discrimination because of perceived age, partnership status, citizenship status, and unemployment status.

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How much time do I have to file a claim with a governmental agency or a court?

​If the discrimination or retaliation occurred within the State of New York, you have 300 days from when you first learned of the discrimination to file a charge of discrimination with the EEOC. If you have suffered multiple acts of discrimination, or the discrimination has been on-going, you have 300 days from the most recent act of discrimination to file your charge.

You have one year (360 days) from the time you learned of the discrimination or retaliation to file a complaint with either the New York State Division of Human Rights of the New York City Commission on Human Rights.

If you have not filed a complaint with either the NYS Division of Human Rights or the New York City Commission on Human Rights, you still have three years from the time you learn of the discrimination or retaliation to file a lawsuit alleging violations of state or city (but not federal) law with the New York Supreme Court (New York’s trial court).

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What if I don’t file within these deadlines?

If you don’t file your complaint or lawsuit by the deadlines listed below, your legal action will be dismissed and you will have no further legal recourse. That is why it is so important to act promptly if you believe you have been discriminated or retaliated against. Anti-discrimination laws are complicated, and it can be very difficult to know your rights. While we hope the information above is useful, it is not exhaustive. That is why it’s important to consult a knowledgeable lawyer to determine what your rights are and how best to protect them. Beranbaum Menken has a long history and track record of advocating for victims of unlawful harassment. If you believe you may have been the victim of unlawful harassment, contact us to schedule a consultation.

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