Targeted discriminatory harassment occurs every day in New York City, regardless of the type and size of workplace.  It can happen at a mammoth Fortune 500 company on Wall Street or even a small business specializing in graphic design in a shared space in Brooklyn. What if the target of this discriminatory harassment is you?  What if you are being incessantly harassed at work by a supervisor or coworker and you believe the harasser has a certain discriminatory motive?  Sadly, the victim of harassment typically feels like they have no one to turn to.  Your coworkers will not likely help your cause for fear of losing their jobs.  You are scared to go directly to your Human Resources manager since they are basically a biased extension of your employer, only looking to preserve the company’s interests.  You are unsure whether your employer will retaliate against you, and possibly fire you from your position, simply for speaking up.

What can you do?  First thing, take a deep breath and take solace in the fact there are knowledgeable, well versed specialists in this field who are willing to guide you through this daunting and nerve-racking process.  Below, I have outlined a few steps that will help ensure the preservation of your civil rights under Federal, New York State and New York City employment discrimination laws, but before you do ANYTHING, contact an attorney.

Some Helpful Steps

1. When you first sense that a supervisor or coworker is harassing you based on a discriminatory animus, try to deduce the true reason.  That animus can fall under a myriad of protected categories, including, but not limited to, age, gender, national origin, race, religion, military status, sexual orientation, a pregnancy or a disability or perceived disability.  Please be aware that if the harassment taking place does not fall under a protected category, the harassment is not actionable under Federal, New York State and New York City employment discrimination laws.
2. You should next memorialize the event. You can do this in a variety of ways, but the main purpose of this step is to put your employer on notice of the harassment.  Clearly, if the employer in unaware of the inappropriate behavior, they will claim they could not do anything to remedy it and will deny ever knowing it occurred.  One example of giving proper notice would be by sending a letter or email to Human Resources summarizing the harassment.  This step is anything but easy, and fear may prevent you from initiating the process, but failing to do so may cause major difficulties if your employer decides to terminate and retaliate against you in the future.
3. At this point, if you haven’t already, contact an attorney.  Waiting only leads to an escalation of the discriminatory acts against you and may complicate issues facing the attorney.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

DISCLAIMER:

The information at this site has been prepared for general informational purposes only and is offered as a public service. Information on this site does not constitute legal advice and is presented without any representation or warranty whatsoever, including as to the accuracy or completeness of the information.

One could easily assume that New York State and New York City share identical laws giving equal protections for victims of workplace discrimination, with employees failing under a myriad of protected classifications.  Unfortunately, despite it being 2013, this is not the case in fact.  In particular, despite great strides having been made in protecting the civil rights of the gay and lesbian community in New York State, like the legalization of same-sex marriage, many, if asked, would still tell you that they are in constant fear of workplace discrimination and violence, simply because of their sexual orientation.

The New York State legislature is looking to further remedy this ongoing problem of sexual orientation discrimination with the recent proposal of the Gender Expression Non-Discrimination Act (GENDA), which calls for protections against discrimination for New York’s transgender and gender-nonconforming population. With its enforcement the Act will outlaw discrimination based on gender identity or expression.

GENDA passed the Assembly a few weeks back, but there seems to be a lone wolf seeming to undermine and prevent this Act from becoming law, New York’s State Senate Conservative Party.  The Senate Republican’s opposition is based on the inability n getting reelected in areas that typically do not support expansion of civil rights for the gay and lesbian community.  Unsurprisingly, this is not reason that has been declared by the State Senate Republican leadership.

“Naturally, we’re opposed to it,” said Michael Long, chairman of the New York Conservative Party, in an interview with The Wall Street Journal. “They should be protected, as we all are. We are for equal rights for all human beings. There is no need to create special classifications for individuals.”

Fortunately, the measure has some powerful Democratic sponsors, which could be enough to barely carry the bill. Versions of it have been pushed for years by gay and transgender advocates who won the landmark law legalizing same-sex marriage in 2011.

Additionally, the District of Columbia, 16 states and several cities already have passed similar laws protecting gender identity and expression.  New York City is also among the cities with protections for gender identity.  Let’s follow suit and bring these protections to all the citizens of New York State.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

In a progressive step in the right direction, the Department of Labor (DOL) recently expanded the definition of “son or daughter” to now allow an eligible employee to take medical leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves because of disability related limitations, not considering the age of the child when they were inflicted with the disability.

If you’re not familiar with FMLA, it is a federal law that allows an employee to take up to 12 weeks of unpaid leave due to illness or to care for a sick family member, including a son or daughter.  The FMLA ensures that you are able to take extended leaves of absence from work to due to illness or to care for a sick family member.  The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild ,a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”  The DOL’s regulations hold that the FMLA does not require that a biological or legal relationship exist between the employee and the child.  Therefore, the regulations interpret “son or daughter” under the FMLA to include a child of a person standing in loco parentis – those with day-to-day responsibilities to care for or financially support a child.

Initially, “son or daughter” had been defined by a child who was under the age of 18, regardless of whether or not they have a disability.  A qualified employee requesting FMLA leave to care for a son or daughter under 18 years of age is now only required to show they need to care for the child due to a serious health condition, not necessarily a disability.

On January 14, 2013, the DOL issued Administrator’s Interpretation (AI) No 2013-1, expounding on the definition of “son or daughter.”  In order to meet the FMLA’s definition of a “son or daughter,” an adult child (i.e., an adult child who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability.

In defining mental or physical disability, the FMLA regulations implement the Americans with Disabilities Act’s (ADA) definition of “disability” – a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC).  The AI also incorporates the Americans with Disabilities Act Amendments Act (ADAAA)’s expansions to the definition of disability, noting that the clear language of the ADAAA provides that the definition of disability is to be “construed in favor of broad coverage.”

The AI also now requires that the adult child must be incapable of self-care because of his or her disability in order to meet the definition of son or daughter. The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).”  Assuming the other requirements of the FMLA are met, a parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

1.      has a disability as defined by the ADA;

2.      is incapable of self-care due to that disability;

3.      has a serious health condition; and

4.      is in need of care due to the serious health condition

It is only when all four requirements are met that an eligible employee is entitled to FMLA protected leave to care for his or her adult son or daughter.

Lastly, the AI makes clear that the age of the son or daughter at the start of a disability is irrelevant in determining a parent’s right to FMLA leave.  ”An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.”

This is a great step in enlarging the protections of FMLA, especially in an area that is typically forgotten and set aside. Now, caregivers with adult children who are incapable of caring for them can get the much needed assistance from a parent, without the parent fearing retribution for taking time off of from work.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

Employee handbooks are commonly saturated with limitations imposed by employers, who do everything in their power to quash any negative writings and/or speech about the company or its personnel.  A company will typically draft rules prohibiting an employee from speaking publicly about a company in a negative light.  This has recently translated to the world of social media, expanding to language that was usually forbidden in the office kitchen or by the water cooler.

A current social media policy will typically contain language fashioned on an employer’s prohibition of any speech that disparages managers, co-workers or the company itself.  A violation of social media policy can even rise to the level of justifying termination.  However, it looks like the National Labor Review Board (NLRB) has something to say about this shift in its recent advisory based on several rulings, including one in the case against of a not-for-profit corporation called Hispanics United of Buffalo. In essence, labor regulators have declared many such blanket restrictions on speech illegal. The NLRB says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook.

In that case, the New York Times reported that a caseworker threatened to complain to the boss that others were not working hard enough. Another worker, Mariana Cole-Rivera, posted a Facebook message asking, “My fellow co-workers, how do you feel?”

Several of her colleagues posted angry, sometimes expletive-laden, responses. “Try doing my job. I have five programs,” wrote one. “What the hell, we don’t have a life as is,” wrote another. Hispanics United fired Ms. Cole-Rivera and four other caseworkers who responded to her, saying they had violated the company’s harassment policies by going after the caseworker who complained.

In a 3-to-1 decision last month, the NLRB ruled that the caseworkers had been unlawfully terminated. It found that the posts in 2010 were the type of “concerted activity” for “mutual aid” that is expressly protected by the National Labor Relations Act.

In addition to ordering the reinstatement of various workers fired for their posts on social networks, the agency has pushed companies nationwide, including giants like General Motors, Target and Costco, to rewrite their social media rules.

The advisories and rulings have collectively expanded the definition of “concerted activity,” which is derived from a law that was enacted in the industrial era, principally to protect workers’ right to unionize, and now is being applied it to the digital activities of nearly all private-sector workers, union and nonunion alike.

Personally, I feel like this is a bold step, but an important one.  Workers should feel free to express their opinions of the workplace environment between one another without fear of punishment in the office or in the steam of social media.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

They are at it again. One of New York’s most long standing papers is being accused of age discrimination and disability discrimination. In this case, a picture editor at the Daily News, David Burns, is accusing the paper of being “harassed and overlooked for promotions based on his age and health issues.”

This is not the first time the Daily News is in hot water regarding allegations of age discrimination in the workplace, and I imagine that it will not be the last.  The only way to remedy the problem is to change the culture of discriminating against older workers and levying tougher penalties against the corporate forces that facilitate the discriminatory policies.

In this case, Mr. Burns, a 50-year-old New Jersey resident, specifically accuses the Daily News photo managing editor, Alexander Hitchen, of deliberately withholding reimbursements and causing Mr. Burns high anxiety and panic attacks.

Additionally, it is alleged that Mr. Hitchen passed Mr. Burns over for the position of deputy managing editor after pressuring Mr. Burns to fire 21 freelance photographers. To boot, the Complaint also  claims Mr. Hitchen told Burns he failed to get the promotion because of his “age and health” and that Mr. Hitchen said this was “better for [Burns]” because “at your age, you should be concerned about your health and your family.”

Subsequently, the strain between Mr. Hitchen and Mr. Burns reached a literal boiling point, where Mr. Burns was required a stronger prescription  of anti-anxiety and blood pressure medications.

If these allegations are proven to be true, the Daily News may see a monumental and expensive problem on their hands. Firstly, this does nothing good for public relations.  The population of New Yorkers continues to get older and the worsening economy has taken a serious hit on them already. Secondly, Mr. Burns is the embodiment of a well-rounded worker, who people can relate to and sympathize with, something extremely helpful to the attorney presenting this case to the jury of Mr. Burn’s peers.

It looks like the Daily News needs a gut check and a forensic evaluation of their employment policies in order to prevent these public relations nightmares from continuing to happen. One could only hope.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

By Maya Risman

To have the choice to work from home can be a total blessing.  Making your own hours.  Not having to converse with annoying co-workers. Working at your own pace and on your own time.

But what if working from home was not a choice?

What if circumstances dictated the necessity to abruptly leave your office desk and quickly shift responsibilities to the taking care of a sick or disabled child, a parent or even a husband for an indefinite period of time?

Many questions begin rushing through your head.  First and foremost, questions regarding your loved one’s health and well-being.  And not far behind, you have questions regarding your job security.  Is your employer required to leave your job open? Is your employer required to pay you while you are out of work?

In these difficult times, it is best to stay composed and educate yourself on the employment rights afforded to you under the law.

What are my rights?

The Family and Medical Leave Act (FMLA) is a federal law that provides an employee to take up to 12 weeks of unpaid leave due to illness or to care for a sick family member.

Some of the protections afforded by the FMLA are listed below:

• Covered employers must grant an eligible employee up to a total of 12 weeks’ worth of unpaid leave during any 12-month period to care for yourself or an immediate family member (spouse, child or parent) with a serious health condition. The Act also covers child birth.
• At the end of the leave, when the employee returns to work, the employee must be restored to the same position. If that same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits and responsibility.
• The employee’s benefits are protected in that they are to continue even while the employee is on leave. And upon returning to work, an employee is entitled to reinstatement to all benefits that the employee was receiving before going on leave.
• Protection of the employee to not have their rights under the Act denied or interfered with by an employer is granted by the FMLA.
• An employee is protected from retaliation by an employer for exercising her rights granted under the FMLA.

As discussed, there are federal laws that provide some semblance of security in these difficult situations, outside of accommodations your employer may or may not already provide privately.  It is best to first approach your human resources department to request such accommodation.  Nevertheless, it is equally important to contact a local employment attorney for consultation and to learn of any other state or local laws that may afford additional job protection for medical leave.

Maya Risman is an employment and labor law attorney in New York City.

I imagine that most people believe that pregnant women are provided with accommodations needed to perform their job, but this cannot be further from the truth.  The recently introduced Pregnant Workers Fairness Act (PWFA), by Sen. Jean Shaheen (D-N.H.) and Sen. Bob Casey (D-Pa.), seeks to remedy this injustice and  would require employers to make workplace accommodations available for pregnant women that current Federal and New York law requires them to make for people with disabilities, so long as the accommodation does not amount to an undue burden on the employer.

Under the Americans with Disabilities Act (ADA), these are called “reasonable accommodations,” designed so that employees with disabilities can perform the job functions they were hired to do.

Essentially, the purpose of the PWFA is to eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.

Under the Federal, New York State and New York City Human Rights Law, pregnancy, is not considered a disability. The only legal projection pregnant women are currently provided is under the 1978 Pregnancy Discrimination Act and the parallel New York laws, which makes it illegal to fire a woman because she becomes pregnant. However, employers can still refuse to accommodate pregnant women’s basic, fundamental needs at work, such as barring a pregnant employee from going on light-duty because she is unable to carry heavy objects, or denying the pregnant woman’s right to carry around a water bottle to ensure her and her growing baby is sufficiently hydrated. The Federal and New York laws, as they currently stand, are essentially forcing pregnant women to pick between their job and ensuring the health of their unborn child and themselves. This is a choice a woman should not be compelled to make, as it goes against the universal view that a pregnancy is a blessing and should be nurtured, not jeopardized because of an employer’s discriminatory prerogative.

This PWFA has a long journey ahead and because of the divisive nature and makeup of the current Congress, it is not likely to become law. However, you have a voice, so let it be heard. Speak out to your elected officials and come November, vote with the PWFA in mind.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

Time to examine the latest race discrimination suit making headlines.  Two dozen black pilots allege in a lawsuit that United Continental Holdings, the parent of United Airlines, passed them over for management promotions because of their race.  The pilots allege a long history of discriminatory behavior on behalf of United across multiple U.S. states.  The suit was ultimately filed in the U.S. District Court for the Northern District of California in San Francisco.  These pilots further claim the carrier punished them by withholding promotions and special assignments because of their participation steaming from a charge with the Equal Employment opportunity commission in 2010.  As always, United vehemently denies all of the allegations made by the pilots.

What are the chances of success for these pilots? What do they have to prove in order to be successful? Let’s take a look at the law (Title VII) and what is required in order to prevail in a race discrimination suit for disparate treatment.

Claims of discrimination under Title VII  are governed by a tripartite burden-shifting test established by McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the pilots first must make a prima facie case for race discrimination. The prima facie elements of a claim for disparate treatment are that: (1) the pilots are a member of a protected class under the statute; (2) the pilots applied and were qualified for a job or promotion for which United was seeking applicants; (3) despite their qualifications, they were rejected; and (4) the positions remained open and United continued to seek applicants, or the positions were given to someone outside the protected class.

Once the aforementioned is established, the burden then shifts to United to articulate a legitimate, non-discriminatory reason for not selecting the pilots for promotion.  If United satisfies this burden, the pilots must prove that the alleged legitimate reasons offered by United were not its true reasons, but were a pretext for discrimination.  To sum this all up, the ultimate burden lies with the pilots to prove that they were passed over for promotion because of their race.

As you can see, the pilots have a pretty heavy burden facing them.  Even if they are able to demonstrate all of the above elements, including providing statistical evidence that United tended to hire more whites over minorities for managerial positions, all United is required to show under the law is a “legitimate reason” for this trend.  Often in cases where denial of promotion is the primary cause of action, an employer may provide a variety of of reasons for promoting one candidate over another, such as, familiarity with a unit, years of experience in a particular field, or educational background.  Once United is able to establish that reason, the pilots are required to show that they were clearly better qualified than the employee selected for the promotion at issue.  However, the bar is set very high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person, in the exercise of unbiased judgment, could have chosen the candidate selected over the pilots for the job in question.

So let’s see how this all plays out.  Despite the burden being extremely high in race discrimination actions, it is still very possible that these pilots have a legitimate chance of prevailing if they can show they were clearly the better candidates for the managerial positions.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

My supervisor told me my performance was terrible the last few weeks and is threatening to put me on probation, and I’m certain he feels that way because I’m Jewish, and he overtly displays his dislike for Jewish people. This feels like an adverse employment action, but is it?

Title VII, the New York Executive Law and the New York City Human Rights Law makes an employer liable for discriminating against its employees based on age, gender, national origin, race, religion, or for retaliating against an employee for having challenged such discrimination. Courts recognize that most discrimination and retaliation is not carried out so openly as to provide direct proof of it.  Accordingly, a wronged party may use circumstantial evidence to assert a prima facie case of discrimination (or retaliation) by alleging: 1) [she] belonged to a protected class; 2)[she] was qualified for the position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. But what really is an adverse employment action?  Sounds like so many different events can fall under such a category, including the one above.

Courts have traditionally defined an adverse employment action as a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

So, when assessing whether an action taken by your employer is “adverse” under the law, you should make sure the action is substantial in nature.  Even though an action may feel substantial, does not necessarily mean that it qualifies the same under the law.  It is always best to consult with an employment discrimination attorney to better determine whether any action taken against you is materially adverse.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.

New York employment discrimination runs rampant, even if the actions of the violators may not be overt or obvious.  And employers should certainly know it is illegal to discriminate against employees or prospective employees based on their age, gender, national origin, race, religion, sexual orientation, a pregnancy or a disability or perceived disability. Often, employees who are forced to endure employment discrimination suffer anxiety, humiliation, fear, anger or financial problems due to the unjust acts of their superiors, or even their coworkers.  Fortunately, there are laws which protect victims of employment discrimination from injustice.

You have certain rights as a potential employee afforded by Federal, New York State, and New York City law.  The protections of Title VII of the Civil Rights Act of 1964, New York Executive Law, and New York City Human Rights Law even apply to the interview process.  Know before you go. There are certain questions regarding your identity which are off limits during the interview. The interviewer is barred from asking you about your birthplace, nationality, religion, maiden name, marital status, which church you attend, whether you have (or plan to have) a family, whether you need time off for a religious holiday, whether you are pregnant, whether you are the head of a household, or whether you have physical disabilities. It certainly makes sense why these areas are forbidden territory during an interview. A prospective employee should be measured on the quality of their education, work history and character, not unessential characteristics which have no bearing on their potential for workplace success.

By educating yourself concerning the type of questions an employer may not ask, you can safeguard yourself against improper questioning, voice your concerns, and determine whether you would like to work for a company.  And if you truly believe that an employer has overtly discriminated against you in the interview process, there are several legal avenues you may choose to entertain, and the attorneys at the Law Offices of Maya Risman, P.C. can help you choose the best one to follow.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.