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Discrimination |
The law states that it is illegal to refuse to hire, to fire, or to otherwise
discriminate against a person with respect to his compensation, terms,
conditions or privileges of employment based on race, color, religion,
gender or national origin.
This Federal law, known as Title VII, applies to public and private sector
employers with at least 15 employees. Companies with fewer than 15 are
usually covered by state law. The laws in the state of New York and New
York City are similar to Federal law, except that while gay and lesbian
rights are not protected under Federal or state law, they are protected
under New York City law.
Types of Discrimination
Hostile Work Environment
Why Consult an Attorney
Steps to Take
If You Quit Due to Intolerable Working Conditions
Retaliatory Acts
Time Limits on Complaints
Filing a Complaint
Americans with Disabilities Act
Age Discrimination in Employment Act
Family Medical Leave Act
Types of Discrimination
Discrimination can be subtle or overt. If you feel that you have been
the subject of discrimination for any of the following reasons and have
suffered adverse effects, consult an attorney or file a complaint with
the EEOC.
- Age: Older employees and job applicants cannot be discriminated
against based on age.
- Race, Color: Under Title
VII of the Civil Rights Act of 1964, individuals are protected
against employment discrimination on the basis of race or color.
- National Origin: No one can be denied equal opportunity because
of birthplace, ancestry, culture or linguistic characteristics common
to a specific ethnic group.
- Religion: Individuals cannot be discriminated against because
of religion and employers must reasonably accommodate religious practices
of an employee or prospective employee.
- Gender: The Equal Pay Act of 1963 prohibits discrimination
on the basis of gender in compensation for similar work under similar
conditions.
- Disability: The Americans
with Disabilities Act prohibits employee discrimination on the
basis of disability.
- Pregnancy: Discrimination on the basis of pregnancy, childbirth
or related medical conditions constitutes unlawful sex discrimination
under an amendment to Title VII of the Civil Rights Act of 1964.
Hostile Work Environment
Federal and state laws protect employees by prohibiting discriminatory
conduct in the workplace that creates an offensive and unpleasant working
environment. Use of racial epithets, job policies that disproportionately
exclude minorities, employment decisions based on stereotypes and assumptions
about abilities or performance of individuals of certain racial groups
are prohibited behaviors and may contribute to a hostile work environment.
Why You Should Consult an Attorney with a Discrimination
Claim
It is always a good idea to consult an expert for advice before
submitting a discrimination claim. An experienced attorney:
- May be able to get an employer's attention so the offending practice
is stopped or may be able to resolve the issue instead of taking legal
action.
- Can give you specific guidance as to what you should be doing to document
your claim (create a paper
trail) and protect yourself against retaliation.
- May help you file a complaint with the EEOC or an appropriate state
or city agency.
- Can help you protect your rights should there be a court case.
Steps to Take if You Have Suffered Discrimination at Work
- First, determine if the situation is a misunderstanding that you can
resolve yourself or something more serious requiring the assistance
of an outsider.
- Examine your company's discrimination policy.
- If no policy exists, consider going to your supervisor or to the supervisor
of the person discriminating against you.
- File a complaint according to your company's policy.
- Follow up on your complaint so you understand how/if your employer
is addressing the issue and you don't risk losing your claim.
- File a complaint with the appropriate government agency (see our downloadable
form to file a complaint with the EEOC).
If You Quit Due to Intolerable Working Conditions
In many cases, quitting a job as a result of intolerable working conditions
is considered the same as being fired. Most states recognize constructive
termination of employment and treat it similarly to actual firing.
For example, if your employer reduces your wages from $25/hour to $6/hour,
switches your day hours to moonlight shifts, and changes your position
from Director of Operations to Office Assistant, that would constitute
a constructive termination.
If an employee can prove that an employer created intolerable working
conditions in an effort to get the employee to quit and these conditions
were known by the employer or intentionally created by the employer, then
the employee may pursue a "constructive wrongful termination action."
The remedies available in a successful constructive wrongful termination
action are similar to those in a suit due to actual wrongful termination.
Retaliatory Acts
As with sexual harassment, it is illegal for an employer to retaliate
against an employee who has made a claim of discrimination. If you have
made a complaint to your employer and have been punished, demoted, terminated
or otherwise suffered an adverse reaction, consider consulting an attorney.
Time Limits to Make a Complaint
As with sexual harassment complaints, in many places, there are time
limits within which you must file a discrimination complaint. In New
York, the filing period is 300 days. Any acts that occurred more than
300 days prior to the date you file your complaint with the EEOC,
the New York State Division of Human Rights or the New York City Human
Resources Administration will not be considered by the agency in their
review of your complaint.
And if these acts are outside the time limit (considered prior
acts), this may affect whether or not they may be considered by
a Federal Court should you file a Federal lawsuit subsequent to your EEOC
filing. It is possible that these acts would not be considered by that
court, unless the prior acts are deemed to be continuous
discrimination. However, it is possible that as long as a State
Court lawsuit is filed within three years, you will be able to go forward
in that venue.
Filing a Complaint
If you've been the victim of discrimination and have been unsuccessful
in your attempts to resolve your dispute, you may want to consider filing
a complaint with the appropriate government agency. In New York, the agencies
to contact include:
Americans with Disabilities Act (ADA)
The Americans with Disabilities Act was passed in 1990 to protect individuals
with disabilities from being discriminated against in the workplace. This
law applies to employers with more than 15 employees. Individuals are
considered disabled under the ADA if they:
- Have, have a record of, or be regarded as having a physical
or mental impairment that substantially limits one or more major life
activities such as hearing, speaking, seeing, breathing, performing
manual tasks, walking, etc.
Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act was passed in 1967 to protect
individuals from being discriminated against in the workplace due to their
age. This law applies to employers with 20 or more employees. The minimum
age for filing is 40 and while the EEOC accepts these complaints,
the NYSDHR cannot accept claims pursuant to the ADEA.
Family Medical Leave Act (FMLA)
The Family Medical Leave Act requires employers with over 15 employees
to grant employees up to twelve (12) weeks of unpaid leave within a twelve
(12) month period and the same or similar position upon their return for:
- The birth of a child,
- The adoption of a child,
- A serious health condition that requires a leave of absence,
or
- The care of a parent, spouse or child with a serious health
condition.
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