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FAQs About Workplace Discrimination

Pianko Law Group
Maurice Pianko 
March 26, 2022

The workforce is not the same as it was before. Working from home is a good example. This arrangement, which was almost unheard of a decade ago, is slowly gaining acceptance. The Equal Employment Opportunity Commission, which oversees most workplace discrimination complaints, still doesn’t consider a WFH denial to be a denial of civil rights. But as this model becomes more widespread, that attitude might change.

Some things change and some things stay the same. Workplace discrimination is still a significant problem in New York. Various things keep discrimination in place. Many EEOC discrimination complaints involve age-old companies who have always done things a certain way. Many other complaints involve startups that are unfamiliar with the rules. In both cases, the discrimination is often not malicious. But it’s usually intentional, and that’s the only thing the law requires.

Furthermore, workplace discrimination persists because victims don’t speak up. They assume if the EEOC refuses to prosecute, their complaints must have been invalid. But that’s generally not the case. For political purposes, the EEOC only accepts certain kinds of discrimination cases. If these bureaucrats don’t stand up for you, a New York workplace discrimination lawyer takes up your cause.

What Qualifies as Workplace Discrimination?

In Legalese, workplace discrimination is an adverse decision against a person in a protected class for a non-neutral reason. Let’s translate these three elements into English.

The adverse decision is usually an entry or exit level decision (e.g. refusal to hire or termination). Mid-level decisions are common as well. Some of them are subtle, because as mentioned, many employers have discriminated for years and they know how to skirt the law. More on these specific examples below.

Congress established protected classes in the landmark 1964 Civil Rights Act. These classifications include:

  • Gender,
  • Age (over 40),
  • Ethnicity,
  • National origin,
  • Religion,
  • Relationship or marital status,
  • Disability (mental, physical, emotional, or other),
  • National origin, and
  • Sexual preference.

In New York, the sexual preference protected class covers pretty much any worker who is anywhere on the LGBTQ spectrum.

As for neutral reason, New York is an at-will employment state. Employers can fire anyone at any time for good reason, bad reason, or no reason at all. However, they cannot fire anyone for an illegal reason. So, the employer must have a neutral reason for any adverse decision, such as downsizing or lack of individual qualifications. This reason might or might not be valid. But the employer must have a good faith belief that it’s true.

Employers aren’t just responsible for their own conduct. Employers could be responsible for illegal customer discrimination, if teh boss knew about the misconduct, was in a position to stop it, and did nothing about it.

Incidentally, the at-will rule works both ways, at least in most cases. Generally, workers can quit their jobs for good reason, bad reason, or no reason at all.

What Are Examples of Workplace Discrimination?

Employers discriminate against all protected classes at one time or another. Ethnicity, gender, age, and disability discrimination are among the most common kinds of discrimination in New York. Some examples of adverse actions in these areas include:

  • Showing favoritism during downsizing and restructuring,
  • Refusing to schedule a worker, or refusing to give a worker the best shits, 
  • Making inappropriate comments which are based on the employee’s personal characteristics,
  • Hiring, promoting, demoting, or firing a person based on personal traits,
  • Denying maternity, disability, or other leave, and
  • Denying certain benefits or perks to certain individuals.

Discrimination claims are very difficult to prove in these matters. Very few employers are stupid enough to leave smoking guns lying around. They normally don’t say “Sorry, Jane, we can’t promote you because you’re a woman.” Instead, New York workplace discrimination lawyers use circumstantial evidence to prove these claims. Lawyers also use the McDonnell-Douglas test to evaluate these claims. More on these things below.

What’s the Most Common Example of Workplace Discrimination?

Strictly speaking, the most common form of workplace discrtimination isn’t discrimination at all. At over 55 percent, retaliation is the leading EEOC claim. Disability, ethnicity, and gender are all in the low to mid-30s. Age is fourth at 21 percent. All other discrimination claims, including sexual orientation claims, are quite rare.

Retaliation is especially common in sexual harassment claims. Employers often retaliate against individuals who file sexual harassment claims, serve as a witness in a sexual harassment investigation, or encourage other people to file claims. Retaliatory acts usually include the ones listed above.

Incidentally, if an employer receives a discrimination complaint, whether it’s sexual harassment, gender bias, or anything else, the employer’s duty is clear. The bosses must thoroughly, expeditiously, and transparently investigate the claim. They cannot rubber stamp it one way or another and they cannot work behind closed doors.

What is Passive Discrimination?

The adverse actions mentioned above are examples of disparate impact discrimination. That’s basically treating different people differently. Passive discrimination, or disparate treatment discrimination, is common as well.

Passive religious discrimination is a good example. Some faiths observe certain holy days, and others include some personal appearance rules. Rules like everyone must work on Saturday or no head coverings are allowed might seem neutral. That’s especially true if retailers make people work Saturdays because that’s the busiest day of the week or a warehouse forbids head coverings for anti-theft reasons.

But these rules have a disparate impact on certain religious groups. Many Jews rest on Saturday and many Muslims wear hijabs.

Paternalism is a related from of passive discrimination. Parents usually have the right to make health and safety decisions for their children (e.g. don’t play in the street, don’t stay out past nine, and so on). But employers don’t have this right regarding their employees. Pregnancy discrimination against blue-collar workers is a good example. Certain chemicals might be hazardous to certain pregnant women. But the woman, not the boss, must make health and safety decisions, like a shift change.

How Do I Tell if My Boss is Discriminating Against Me?

We mentioned the McDonnell-Douglas test above. This test comes from a 1973 Supreme Court case. But don’t let that fact intimidate you. Pretty much anyone can employ this test, which is:

  • Membership in a protected class,
  • Otherwise qualified,
  • Adverse action, and
  • Replacement by someone not in a protected class.

Some of these elements are easy to determine and others require investigation. As a rule of thumb, if you answer “maybe” to all four inquiries, you should go to the next level. Usually, this process involves giving the boss a chance to make things right, complaining to the EEOC, and finally partnering with a New York workplace discrimination lawyer.

You don’t have to take bias on the job lying down. For a free consultation with an experienced New York workplace discrimiantion lawyer, contact the Pianko Law Group, PLLC. Our main office is conveniently located near Battery Park.

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