Phillips & Associates
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The law generally, but especially the law of discrimination, is continuing to evolve and change. One jurisdiction where that’s true is New York State. State law recently changed in an important way that helps workers harmed by discrimination on the job. The change lowers the standard of proof the worker must establish to have a viable discrimination claim. This illustrates the importance of having legal representation from a knowledgeable New York City employment discrimination lawyer who is fully up-to-date on the law and knows how to use those recent changes to your maximum benefit.

As an example of how the above-mentioned change in New York State represents a positive change for workers, there’s this recent color discrimination case.

The worker, C.C., was a nanny in Manhattan. The nanny’s lawsuit alleged that her employer (who was also the mother of the child for whom C.C. provided care) “consistently mocked” the color of her skin. That mockery included telling her older son that the nanny’s face was the same color as “poop” and subsequently encouraging the child to repeat the scatological observation, laughing and smiling when he did so, according to the complaint.

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A common saying that suggests that someone who serves as his own lawyer “shall be sure to have a fool for a client,” dates all the way back to the 17th Century, but it’s still true today. Even licensed New York attorneys understand that, if they’ve endured discrimination at work, they should not try to pursue their case on their own, especially if they’re not experienced in employment discrimination matters. After you encountered discrimination at work, make sure you have the representation you need by hiring a knowledgeable New York City workplace discrimination lawyer.

M.B. was one of those lawyers. M.B., a Black woman, was an employee with the Metropolitan Transit Authority. After some time with the MTA, she sought a promotion to an “Attorney II” position. M.B. didn’t receive that promotion. Instead, the MTA awarded the promotion to a white woman who allegedly had less experience than M.B. had. Specifically, M.B. asserted that the employer’s standards required that all “Attorney II” lawyers have three years of experience, which she had and the white woman did not.

So the Black attorney sued, and retained counsel to handle her case. Her complaint alleged that racial discrimination was the reason that the employer promoted a less-experienced white woman over her.

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It is both sad and strange that people displaying nooses in workplaces still happens. Fortunately for workers in New York City, there are laws at multiple levels that protect you from having to put up with these kinds of hostile conditions on the job. Whether your situation involves a noose, the N-word, or some other form of misconduct, a knowledgeable New York City race discrimination lawyer can help you assess and advance your case.

One of the more recent cases addressing this problem comes from a federal court in Tennessee. T.G., a Black man, worked for the public electric utility in Nashville. Over the years, T.G. allegedly endured nooses in the workplace, racist drawings, comments about bringing back slavery, the need for Black workers to “stay in their place,” and coworkers asking him to teach them to “talk Black.”

The federal court in Nashville refused to throw out T.G.’s hostile work environment claim on summary judgment, deciding that he had presented sufficient evidence to proceed. In reaching that conclusion, the judge pointed out that “the nooses found” on the employer’s property were the “most disturbing pieces of evidence.” The court stated that it “is clear beyond any reasonable debate that a noose is severely physically and mentally threatening for anyone, especially for” Black people.

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The law bars your employer from punishing you for engaging in certain forms of “protected activity.” Protected activity may be something formal like a written complaint to your employer’s Human Resources Department about discrimination you endured at work, but the range of things that can fall under the umbrella of “protected activity” is broader than just formal complaints. It can be something as basic as verbally complaining to your supervisor. It could even be something wholly unrelated to discrimination against you, such as answering questions or serving as a witness in a coworker’s discrimination case. Whether you were opposing discrimination or harassment that targeted you or someone else, you’re entitled to be free from negative consequences for it. If you’ve suffered punishment on the job, then that may constitute retaliation and you should discuss the matter with a knowledgeable New York City employment retaliation lawyer.

A recent retaliation case from here in New York City illustrates how broad the range of “protected activities” can be. The employee was a Planned Parenthood worker and also a Jewish woman.

While working at Planned Parenthood, the woman allegedly heard multiple discriminatory comments, including her supervisor saying that she didn’t “want an old Jewish woman running a multicultural department” and another high-ranking employee saying that “there were too many white Jewish Chief Executive Officers in positions of power, and it [was] time to get them out,” according to the lawsuit.

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The law against workplace sexual harassment derives from the public policy that strongly condemns such behavior. The law that allows a harassment victim to hold her employer liable for coworker harassment similarly condemns harassment and requires employers to develop responses that likewise demonstrate the employer’s stringent opposition to workplace sexual harassment. If your employer did not respond appropriately, then you may be entitled to hold it liable, even if your harasser stopped of his own accord. A harasser stopping on his own is rare, but does happen and, when it does, it represents a significant wrinkle and potential complication for your case. It does, however, doom your case. Consult with a knowledgeable New York sexual harassment lawyer to learn what options the law has for you.

A.P. was one of those workers caught in that type of scenario. Working as an intern for a division of the U.S. Department of Defense at an office upstate in 2019 and 2020, she encountered a male coworker who allegedly engaged in multiple acts of sexual harassment.

The harassment alleged was very overt and was of the sort that will ring all too familiar to many working women. According to the complaint, the man sent the woman numerous messages on Facebook Messenger describing things like his being naked and self-pleasuring while working from home, having sex dreams about the woman, and becoming aroused thinking about her. He told her about his desire to look up her dress t work, he sent the woman a picture of his genitals, he asked her about her favorite sexual positions, and he inquired about whether or not she wore underwear, the woman alleged.

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Many people in today’s world of work may be employed by one entity, but they may not necessarily work for that entity alone. There may be one or more other entities with the power to exert genuine control over you and the work you do. Working for an employment structure that includes many layers can be tricky, especially if you need to pursue a discrimination, harassment, or retaliation case. These cases can be challenging because, even if you win, your direct employer may lack the financial wherewithal to pay the damages award you recover. To that end, it often makes sense to include a larger entity as your “joint employer.” Successfully pleading these cases can be complex, so you need to make sure you have proper legal representation from a knowledgeable New York City employment retaliation lawyer.

One recent case involved a security guard who worked at various United States Tennis Association (USTA) tournaments, including the U.S. Open in Flushing Meadows. A firm hired the guard to work the 2016 U.S. Open, but his supervisor later discovered that the USTA refused to grant the guard credentials because he had previously made a race discrimination claim (that had settled in 2015.)

The guard sought to sue the USTA for race discrimination and retaliation under federal Title VII. He, however, had a substantial problem: a Title VII discrimination or retaliation claim requires an employer-employee relationship, and the guard’s case had not substantiated that such a relationship existed.

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A recent commercial for Apple’s iPhone touts the device’s ability to keep your private information private. The commercial points to an ever-increasing concern in today’s world. We all know that we have personal information stored in a variety of places and, in some of those, we’re not the one in control of the flow of that content. Sometimes, the concern is the exposure of information that could be personally or professionally damaging to you. When the one doing that disclosing is your employer and the reason they’re doing it is a retaliatory one, then you may be entitled to sue and obtain compensation under the newly amended New York State Human Rights Law. A knowledgeable New York City workplace retaliation attorney can help show you how to accomplish this.

Earlier this year, the New York legislature passed S.5870/A.7101, and Gov. Kathy Hochul signed it into law. The bill amended Section 296 of the New York State Human Rights Law to expand the definition of what can constitute actionable retaliation. The new definition says that retaliation “may include… disclosing an employee’s personnel files because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article…”

In other words, if you were engaged in a protected activity and your employer, in an attempt to harm you, disclosed some or all of your personnel file, then that’s against the law now. The range of protected activities can be anything from, say, testifying in a coworker’s age discrimination case to filing your own formal sexual harassment claim to complaining to your supervisor about race discrimination in your work area to assisting a colleague in their sexual orientation discrimination case. These are just a few examples.

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Bias and discrimination have been part of the hiring process for as long as hiring processes have existed. Some employers have recently identified a potential solution: hiring done, not by people, but by AI (artificial intelligence.) It’s the perfect answer, right? Who could be more objective and unbiased than a computer? As the federal Equal Employment Opportunity Commission and the Justice Department warned employers recently, using AI in hiring may not be a completely foolproof solution, and employers should proceed with caution lest they violate disability discrimination laws. Whether you were rejected by Mr. Smith, Ms. Jones, or Watson the Computer, if you think your disability played a role in that rejection, you need to get in touch with a knowledgeable New York City disability discrimination lawyer.

The guidance document, which came out earlier this month, was the federal response to employers who have begun using software that deploys algorithms and AI in parts of the new employee selection process. Algorithms and AI might be employed, for example, in administering online tests required of applicants, scoring applicants’ resumes, and making decisions about whether a particular applicant has or has not met the job’s required qualifications.

This all sounds pretty straightforward, so how could it be discriminatory? There actually are many different ways. The guidance document cited the example of an employer using “facial and voice analysis technologies” to evaluate applicants. While seemingly innocuous on the surface, this part of the process could have the effect of rejecting a person with a speech impairment, or a person with autism (whose eye contact and facial expressions might differ from those of non-disabled, neurotypical candidates,) even though those applicants with disabilities actually were qualified for the job.

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A recent ruling in a case involving female servers at a Brooklyn diner is important and instructive for several reasons. Not the least of which is that it reminds readers that the standards for proving sex discrimination or sexual harassment are different under the New York City Human Rights Law as opposed to state or federal law. Understanding the differences between the NYCHRL, the New York State Human Rights Law, and federal law can be crucial to your sex discrimination or sexual harassment case, so make sure that, before you file, you retain the services of an experienced New York City sex discrimination lawyer.

During her time working at the diner in Brooklyn, B.S. allegedly endured a variety of gross sexual improprieties and impositions. According to the server’s sexual harassment complaint she filed in federal court, her male supervisor once followed her into the women’s restroom, where he “cornered” her and exposed himself to her. On another occasion, that man allegedly asked B.S. to touch his genitals.

Unfortunately, the harassment was not limited to that supervisor. Other male workers at the diner allegedly touched the woman “in sexually inappropriate ways” and also would “leer and jeer at her in a sexual manner.” The server complained to other supervisors but, according to the lawsuit, they simply laughed at her. Not long after that, the diner fired B.S.

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If you believe that your employer has used its rules to discriminate against you because of your gender, you should get in touch with a knowledgeable New York City gender discrimination lawyer to discuss your options. The law has multiple different ways to prove gender discrimination, which means that there are multiple different avenues available.

There are two primary ways that an employer’s policies can be the basis of gender discrimination. One is if the policies specifically target and harm a protected group of which you are a member. “Women need not apply,” for example, is an example of gender discrimination on its face.

Other times, gender discrimination involves a facially neutral policy and more subtle discrimination. The discrimination is in, not the rule itself, but the way your employer goes about enforcing that facially neutral policy.

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