Legally Speaking by Cassandra Savoy, Esq. OP/ED
I often speak with people who think that their employers continue to “harass” them for one reason or another. They are sick and tired of the abuse, so they want to file a discrimination suit. Here’s what you need to know. . .
The Equal Employment Opportunity Commission enforces Title VII of the Civil Rights Act of 1964 which makes it unlawful to discriminate in all aspects of employment including hiring, firing, layoffs, promotions, job assignments and benefits when the decision is based on color, race, religion, sex or national origin. The U.S. Supreme Court has extended this right to cover LGBTQ workers from discrimination because of their sexual orientation.
Other laws that protect workers include the Americans with Disabilities Act (ADA) which says that employers can’t refuse to hire you or penalize a person because she has a disability, simply because she has a disability. The Equal pay act guarantees equal pay between men and women. New Jersey also has anti-discrimination laws which afford you significant protections against discrimination in the workplace. We refer to the New Jersey discrimination statute as NJLAD.
What exactly does it mean, to discriminate?
One kind of discrimination is called “disparate treatment. I often hear statements like, “The only reason I got called into the office was because I am Black. So what? I was late a couple of times,” Mary (who is White) never gets called on the carpet because she arrives a couple minutes late, and she’s late more than I.”
Disparate treatment is when one person is treated differently from others in the same position. Disparate treatment can show itself in other ways, perhaps before you even get to the job. For example, during the recruitment process, the hiring manager excludes all of the applications a those with names like “Omar Muhammad,” or “Khadijah Ali” because he believes that those persons are likely to be Muslim, or African American.
Or, discrimination can occur after you get the job, when, the employer pays equally qualified employees in the same position different salaries. It is hard to know if you have been subjected to this kind of discrimination because people don’t usually discuss their salaries or see paychecks as they are distributed.
Another way an employer can discriminate against you is when assigning disability leave, maternity leave or retirement options to different employees, or when assigning special projects which will contribute to you rising in the company. You have to be vigilant in the workplace. You are not required to be thankful that you have a job. The conditions of your employment are important too.
Another form of disparate treatment occurs when an employer establishes a rule or a policy that seems to be fair at the start, but at the end of the day, has a disparate impact on one group or the other. For example, if the employer says that we will terminate all employees who are under 5’5”, and when they do, only Blacks get fired. The policy has a disparate impact on Blacks. Or, for example, if the fire department’s hiring criteria mandates that all employees be able to lift and carry 200 pounds, resulting in no women qualifying for a fireman’s position. That’s a disparate impact.
Harassment is a form of discrimination. Broadly speaking, harassment is unwelcomed behavior by a co-worker, manager, client, or anyone else in the workplace that is based on race, color, religion, sex, pregnancy, nationality age (over 40) or disability.
There are various forms of harassment. Offensive conduct may include, but is not limited to, offensive jokes, like ”what did the Jewish guy say to . . .” Slurs like referring to all Hispanics as Jose; epithets or name calling, insults, or put-downs, or mockery like calling an employee “a slow poke” or a “dumb head,” or referring to an employee’s anatomy calling her “big boobs;” physical assaults like trying to kiss another employee; or threats, and intimidation. Showing objects or pictures, offensive conduct. Sexual harassment may occur when your co-worker, supervisor or client conditions your promotion on dating her, or worse yet, conditions your continued employment on allowing yourself to be groped by your boss in his office.
The caveat to a discrimination suit is what I call the “but for.” The unwanted behavior is only actionable as discrimination if it occurred because you are a member of a protected class: race, national origin, sexual orientation, age, or religion. So if your employer is able to show that you were disciplined because you were actually late which is against company policy, and not just because you were Black, or because you were gay, he wins the argument and the lawsuit. The action is only offensive and contrary to the law if “but for” the fact.
You should know also that petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. Unlawful harassment may occur without economic injury to, or discharge of, the victim. Often times, harassment leads to a hostile work environment. A hostile work environment is created when no reasonable person would be expected to work under those conditions either because of harassment or discrimination.
So, what do you do if you feel that you have been discriminated against or harassed? First of all, don’t tolerate the treatment. Speak up. Create a record. Notify your bosses’ boss IN WRITING! Remember, people forget the content of telephone calls. You call HR, they say, “We’ll make a note of it,” and you could never hear from them again. Write your complaint and even if the HR manager forgets, you have documentation. Send it via registered mail so you have documentation that HR actually received your mail. Better yet, go to HR, notify them of your concerns.
Most large employers have an employee manual that details the steps you need to take to file a discrimination claim. Get the company manual. Make sure you follow each of the steps. Gather your evidence. Keep copies of e-mails, memos and letters or other documents that support your claim. Make a note of time and date of events as they occur in a journal making certain to name others who may have witnessed the events. Look to see if there are others who have sued your employer on similar grounds.
Any employee who believes that she has been subjected to workplace discrimination can file a complaint with the Equal Employment Opportunity Commission, commonly referred to as the EEOC; but remember you have 180 days from the date of the discrimination to file your complaint with the EEOC. You can file with the EEOC either by visiting the EEOC office, but the better route is to write EEOC a letter which contains your contact information (name, address, cell, work, home phone number, e-mail address) and all of the facts as you currently understand them about the incident(s) about which you are complaining.
In the event you do not get satisfaction after filing with EEOC, you can find a lawyer and prosecute your claim. Discrimination is illegal. Don’t allow it to happen to you!
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