If you feel you are being singled out, bullied, or harassed at work because of one or more protected characteristics – such as your sex, age, race, sexual orientation, or disability – you may feel powerless and confused about what to do and how to proceed.
If so, you should keep the following information in mind.
1. You Have Rights
The employer-employee relationship is largely characterized by a power imbalance in the employer’s favor. Your employer likely dictates where and when you work and is the source of your income. It is, indeed, often this economic leverage that empowers harassers to engage in unlawful conduct.
Various laws offer protection against employment discrimination and retaliation. These include:
- Title VII of the Civil Rights Act of 1964,
- the Americans with Disabilities Act (ADA),
- the Age Discrimination in Employment Act (ADEA),
- the New York State Human Rights Law, and
- the New York City Human Rights Law.
These laws generally prohibit your employer (assuming it is a “covered employer” under federal or state/city law) from:
- Discriminating against you in the terms, conditions, and privileges of your employment because of one or more protected characteristics, and
- Retaliating against you because you opposed discriminatory conduct or otherwise engaged in “protected activity”. It is not necessary that the complained-of conduct actually amount to unlawful discrimination.
“Discrimination” includes, but is not limited to, “harassment” or the creation of a “hostile work environment”. (For more information about discrimination law in general and prohibited employment practices, click here.)
2. Don’t Quit!
As much as you might want to quit, don’t!
First, if you quit it is easier for your employer to challenge your unemployment benefits.
Second, if you quit it may be more difficult to succeed on a discrimination claim. Although you may still be able to use the theory of “constructive discharge” – which applies when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation – such a claim can be difficult to prove.
3. Write It Down
Memories fade with time, and other relevant documents may be lost. Therefore it is absolutely critical that you keep as detailed notes as possible of what happened, with specific reference to dates, times, and events.
Doing this will help you refresh your recollection later and may be invaluable if the matter progresses to litigation.
There is no magic format that you should use. At the very least, you should note:
- What happened? Did your boss ask you out? How many times? Did you say no? Did s/he persist? Did your boss or co-worker touch you? Did your boss or co-worker make derogatory remarks about women (or men)? Were you subjected to pornography at work? Did you receive emails or text messages that made you uncomfortable? Etc.
- Where did it happen? At work? After work? At a company-sponsored party? At your boss’s home? Etc.
- When did it happen?
- Who engaged in the harassment? Your boss? A co-worker? A third party, such as a customer?
- Were there any witnesses to the conduct? Was it recorded?
The more specific you are, the more helpful these notes will be.
You can use this chart (or a similar one, modified as you see fit) to document your experiences.
You should also keep a record of who you discussed the matter with, including friends, family, spiritual advisers, and medical professionals. This may help your case later. For example, evidence of medical treatment may be used to bolster your case for damages.
4. Notify Your Employer Immediately
You should notify your employer immediately, in writing, of the offending conduct.
If you fail to put your employer on notice, you may compromise your case. Under the law, your employer may be able to assert an affirmative defense by showing that
- it exercised reasonable care to prevent and correct the harassment, and
- you unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
In addition, you should find out whether your employer has a harassment policy, and if so, follow its terms.
You should also bear in mind that even meritorious claims of discrimination or harassment may appear contrived if asserted for the first time after an adverse action – such as termination – has been taken.
5. Don’t Delay
The law imposes strict filing deadlines, known as “statutes of limitation”. If you fail to comply with these deadlines, you will be forever barred from seeking a remedy in court.
For example, you generally have
- 300 days from the discriminatory act (if in New York) to file a charge with the United States Equal Employment Opportunity Commission,
- 90 days to file a lawsuit in federal court after receiving a “Notice of Right to Sue” from the EEOC,
- 3 years to file a lawsuit in New York state court alleging a violation of the New York State or City Human Rights Law, and
- 1 year to file an administrative complaint with the New York State Division of Human Rights or the New York City Commission on Human Rights.
You should not wait until the deadline is days, weeks, or even months away, as it will take time to explore the possibility of a settlement and/or prepare the necessary papers for filing.
If you have any questions about any of the above issues, please don’t hesitate to contact us today.