Employees in Westchester County and other parts of New York state are protected from discrimination in employment based on a number of personal characteristics, including age, race, religion, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status. However, despite federal and state laws that protect workers from an abusive and hostile work environment, discrimination continues to be prevalent in the workplace.
A majority of adults in America say they have been subjected to discrimination because of their race, religion or other personal characteristics. It is not surprising that one of the most common forms of discrimination experienced by Americans is bias in the workplace. Discrimination takes its toll on society, with many victims of discrimination reporting higher stress levels — which in turn often leads to various health problems. Being treated differently or badly because of one’s personal characteristics can also cause low self-esteem and a host of mental health conditions, including depression and anxiety. This can have rebound effects on the family members of victims of discrimination, who are forced to deal with the impact of the discrimination on their loved one.
Protected Characteristics in New York:
- National Origin
- Sexual Orientation
- Gender Identity or Expression
- Military Status
- Predisposing Genetic Characteristics
- Familial Status
- Marital Status
- Domestic Violence Victim Status
The New York legislature passed sweeping legislation, which became effective in 2019, that enhanced protections for employees experiencing discrimination — an acknowledgment by the government that numerous forms of discrimination continue to exist in the American workplace. Employees are protected from discriminatory employment actions, such as being fired unfairly, or treated with discourtesy, bullied, demoted, paid less than their co-workers, or even physically threatened and harassed because of a protected characteristic. These laws prohibit discrimination not only by private companies and businesses, but also by employment agencies, labor unions, and government agencies.
Are independent contractors also protected from discrimination?
Yes, New York discrimination laws protect both employees and “non-employees” from discrimination, including freelancers, independent contractors, subcontractors, vendors, consultants and temporary workers.
Are workers protected from retaliation if they complain about discrimination?
Employees who oppose discrimination, or who have filed an internal complaint with their job or commenced a legal action with a state agency or the courts, are also protected from retaliation by their employers. A separate claim exists against the employer if it retaliates against an employee for reporting discrimination internally or to the EEOC, or NYS Division of Human Rights.
Are Employees Protected from Mean Bosses?
While we can all agree that there are no shortage of mean, unappreciative and unfair bosses, this behavior is generally not illegal unless it is motivated by race, sex, age or one of the other protected characteristics. Rather, to have a claim for discrimination against an employer in New York, a worker must demonstrate that he or she was subjected to inferior terms, conditions or privileges of employment because of one of the protected characteristics (age, race, religion, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status).
To prove discrimination, there must be circumstances that tie the discriminatory motivation to the unfair or harassing treatment that the employee is experiencing. This can include situations where the employee is unfairly fired, written up, demoted, or receives a decrease in pay, because of their race, religion, age or other protected characteristic. In addition, adverse treatment that can result in a claim against the employer may include unfair work assignments or a failure to promote an individual because of his or her race, sex, age, disability, sexual orientation or other protected characteristic. Unfair treatment can often be illuminated by comparing the treatment extended to different categories of workers, but this is not required to prove a claim of discrimination in New York. For example, an inference can be made that a requirement that only the Hispanic employees must wear a uniform, while employees of certain other races or ethnic groups are free to wear the clothing of their choosing, is a result of discrimination. Another example may be that a company permits employees of a certain race or ethnic group to pick their days off while employees with a certain characteristic are not provided with these same privileges of employment.
Workers can experience a range of negative consequences as a result of an employer’s discriminatory treatment. These include:
- Failing to hire
- Failing to promote
- Paying lower wages
- Providing fewer benefits
- Failing to offer advanced training
- Classifying or segregating
- Disciplining disproportionately
- Laying off or firing (wrongful termination)
Distinguishing Between Racial Discrimination and Racial Harassment
While prejudice underlies both discrimination and harassment, there are differences between the two types of misconduct. Generally speaking, discrimination is the treatment that either favors one group over another or subjects an individual to inferior terms, conditions or privileges of employment because of their membership in one or more of the protected categories. In contrast, harassment targets a particular person or a group of individuals to be recipients of offensive comments and/or behavior because of their membership in a protected group. Therefore, while a workplace that consistently fails to promote African-Americans is discriminatory, a workplace in which African-Americans are taunted, insulted or subjected to offensive behavior such as demeaning comments, racial epithets or jokes, creates a hostile environment through harassment that is also discriminatory.
A hostile work environment can be identified based on several factors, including the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating, and whether it interferes with an employee’s work performance. While isolated incidents may not necessarily establish the existence of a hostile work environment, even a single instance of harassment can be enough to create a hostile work environment.
Federal law follows a stringent standard for proving a hostile work environment, requiring that a worker allege that, because of their race or other protected characteristic, they have been the victim of conduct so severe or pervasive that it creates an environment that a reasonable person would find hostile and abusive. In contrast, the New York legislature amended the discrimination laws in 2019 to provide broader protections for employees, specifically stating that discrimination is not limited to “severe and pervasive” conduct, but rather, that discrimination exists when an individual is subjected to inferior terms, conditions or privileges of employment. Nevertheless, discrimination does not exist in a situation where a victim of similar discrimination would consider the behavior nothing more than petty slights or trivial inconveniences. This requires an objective analysis of the reaction that a typical person experiencing the same type of discrimination would have as a result of the harassing conduct.
Is it necessary to report harassment for the employer to be liable?
No, victims of discriminatory treatment may not be required to have reported the harassment to a manager or the human resources department or another company officer in order for the employer to be liable for discrimination. However, when an employer fails to promptly investigate a complaint of harassment and immediately take steps to stop the abusive and discriminatory behavior, the employer may be considered negligent in its duties to supervise the workplace, which may increase the employer’s liability for the conduct of its harassing employees.
If an employee or contractor experiences discrimination in the workplace based on a protected category, whether the offender is a co-worker, supervisor, manager, client or customer, the first step is to carefully document the abusive or discriminatory treatment. This includes documenting each instance of inappropriate behavior and comments, noting the date, time and individuals present and what was said or what actions were taken; saving email messages and text messages; screenshotting social media posts; and compiling pictures and video and audio that provides evidence of the discrimination. The next step is to report the discrimination to the designated person or department at work. Employees should check their job’s employee handbook or employment discrimination policies, if their employer has implemented them, to determine how to report discrimination and abuse. If the company does not have a discrimination policy or employee handbook to consult on how to report discrimination, complaints should be directed to the human resources department or a manager.
It is important that employees also document their complaints to the company, as it is expected that employers promptly investigate and address discrimination. Employees should document their complaint by putting it in writing or making a personal notation of the date, time and name of the person that took the report of discrimination. If the situation is not rectified or if the discrimination is being perpetrated by those in charge, it may be helpful to seek the advice and assistance of an employment lawyer who can advise the worker on his or her legal rights.
Claudia Pollak, Esq. is an employment lawyer based in White Plains, NY.