HARASSMENT AT WORK
When an employer causes or allows conditions at work to result
in discriminatory intimidation, ridicule and/or insult sufficiently
widespread to pervade the job condition, the employer will
be guilty of harassment. Three requirements must be shown:
- an oppressive atmosphere;
- a causal link between the conduct and a protected class;
- the conduct and motivation may be attributed to a defined
employer;
The definition of employer includes 3 categories:
- managers
- supervisors
- co-workers
ACTIONABLE EVENTS
Promotion, dismissal, pay inequality because of race, ethnic
origin, religion, gender, age or disability may all qualify
as actionable acts. For example, an employee denied a tangible
benefit following a request for a relationship with a manager,
supervisor or co-worker may be a victim of discrimination.
HOSTILE WORK ENVIRONMENT
For a case to be actionable, the environment must be both
objectively and subjectively offensive to a reasonable person.
This means that an employer allowing working conditions to
exist that make an employee feel uncomfortable or threatened
or prejudiced because of demeaning remarks by managers, supervisors
or coworkers has permitted a hostile work environment that
may be actionable.
Isolated incidents will generally not suffice; the incident
must be part of a continuing condition, often repeated. The
issue is whether a reasonable person in the employee’s
position would find the conduct unwelcome, hostile, and abusive.
Indicia include the frequency of these incidents, their severity
and whether they interfere with the employee's work. An example:
where female employees are referred to in a disparaging context,
grabbed and/or threatened if they object, then a hostile environment
exists. The victim must also prove that the conduct was personally
offensive to the victim and unwelcome.
Males can also be the victims of discrimination.
SENIOR OFFICERS
If the officer is sufficiently senior to control policies
of the employer, the employer is liable even where the company
has a policy prohibiting it. A mid level supervisor may also
result in employer liability if the mid-level supervisor has
the power to promote, fire or discipline an employee or recommend
such action. A mid-level supervisor may be considered the
employer if he/she directs the regular work of the employee.
There are defenses. For example, an employer may rebut a
hostile environment by establishing reasonable care to prevent
and correct promptly any sexually harassing behavior. This
is a question of fact.
Co-workers harassment may make the employer liable if the
employer fails to take prompt and effective measures to remedy
harassing behavior, and such conduct rises to a severe level.
If you believe that you may be the victim of unlawful discrimination
or harassment, please contact us.
DISCRIMINATION
The Civil Rights Act of 1964 prohibits discrimination based
on race, color, national origin, gender (which includes discrimination
as a result of a pregnancy) and religion. In 1967 Age Discrimination
in employment was added to the groups of protected classes.
The Disabilities Act of 1990 added mental and physical disabilities.
The rights are interpreted and enforced by the U.S. Equal
Employment Opportunity Commission (EEOC).
New York State has long prohibited discrimination on the
basis of race, gender and religion and often its laws are
more expansive than Federal law. New York State also prohibits
discrimination on the basis of actual or perceived sexual
orientation as well as the other classes employment, housing,
public accommodation, education, and the exercise of civil
rights.
The EEOC is authorized to file judicial actions.
AGE DISCRIMINATION IN EMPLOYMENT
The Age Discrimination in Employment Act of 1967 (ADEA) prohibits
age discrimination against persons age 40 years or older.
Enforcement responsibilities were transferred to the EEOC
in 1978. Mandatory retirement was prohibited and the protected
age class was extended to include persons up to the age of
70.
EQUAL PAY
The Equal Pay Act of 1963 provides that men and women who
perform equal work for an employer must receive equal pay
unless the difference in pay is explainable by a meritorious
seniority system, a merit system, or a system that measures
quantity or quality of performance or for any other reasonable
standard not based on gender. The criteria are fixed by the
Fair Labor Standards Act. Enforcement is delegated to the
EEOC.
EQUAL PROPERTY AND CONTRACT RIGHTS
All persons have the same rights to make and enforce contacts.
Raced based discrimination in hiring on firing practices is
barred. All benefits, privileges, terms and conditions of
contractual relationships must be equal among all races and
ethnic groups. This Act is not restricted to employment contracts
but in fact extends to any contract of whatever kind and/or
description. No administrative exhaustion of remedies is imposed.
Damages are also unlimited.
FAMILY AND MEDICAL LEAVE
All eligible employees are entitled up to 12 weeks of unpaid
leave during any 12 month period if one of the below applies:
- the birth of a child;
- adoption or providing foster care for a child;
- a serious health condition that makes the employee unable
to perform the functions of the position;
- necessary care for a spouse, child or parent who has a
serious health condition.
During the 12 week period, the employer is obliged to maintain
the employee’s existing health care benefits and to
restore the employee to the position at the end of the leave
without reduction of benefits. Employees may not be retaliated
against for asserting these rights.
CALL A NEW YORK CITY IMMIGRATION LAWYER
& ATTORNEY
FOR LEGAL ADVICE & HELP @ (212) 944-9420 ext.10
Our assistance is only a phone call, or e-mail communication
away!
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