COVID-19: Employment Discrimination

By Bryan A. Chapman, Esquire

In the spring of 2020, COVID-19 caused massive disruption in the United States. Within a few months, millions of workers became unemployed due to COVID-19 related layoffs. According to the U.S. Labor Department figures, in April 2020, the number of unemployment workers exceeded those of the Great Depression, and Hispanics and African Americans workers were especially impacted. COVID-19 related layoffs disproportionately affected older and disabled workers.

According to AARP, when the overall U.S. unemployment rate spiked from 4.4% in March to 14.7% in April, the unemployment rate for women 55 and older rose even more: from 3.3% to 15.5%. The unemployment rate for men 55+ also soared, though a little bit less, from 3.4% to 12.1%.

Some employers see COVID-19 related layoffs as an opportunity to eliminate older workers. To these employers, older workers represent higher salaries and higher expenses due to insurance costs and paid time off due to illness. Some employers may have a similar attitude about disabled workers.

According to a May 2020 Bureau of Labor Statistics (BLS) Jobs Report, the number of working-age people with disabilities who were employed decreased by 950,000 between March and April (from 4,772,000 to 3,827,000), a 20 percent reduction.

Nonetheless, federal workplace anti-discrimination laws still apply. A worker can not be discrimination against and/or harassed based on their race, sex, national origin, religion, age, or disability.

The U.S. Equal Employment Opportunity Commission (EEOC) specifically warned employers about discriminatory layoffs. According to the EEOC, an employer should “review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws”.

COVID-19 layoff can facilitate sexual harassment. Supervisors can use the threat of a COVID-19 related layoff to force subordinates to submit to unwanted sexual advances.

The earliest cases of COVID-19 occurred in China. As a result, Asian and Asian American workers have become targets for workplace discrimination/harassment.

Discrimination

Employers can deliberately use COVID-19 as a pretext to discriminate against and/or harass workers based on their race, sex, national origin, religion, age, or disability. Here are examples of illegal workplace discrimination:

1. you are laid off, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

2. you are denied a promotion or increase in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

3. you are demotion or given a reduction in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

4. you are given an undesirable assignment or shift, while workers of a different race, sex, national origin, religion, age, or without a disability are not; and,

5. you are being verbally or physically harassed, while workers of a different race, sex, national origin, religion, age, or without a disability are not.

Retaliation

Federal workplace anti-discrimination laws also prohibit retaliation. Retaliation occurs when a worker is mistreated because they complained about discrimination. Here are examples of retaliation:

  1. undesirable transfers

2. unwarranted disciplinary action

3. harassment

4. refusal of deserved promotion or pay increase

5. demotion or pay reduction

6. termination of employment

Retaliation occurs when an employer takes an adverse action against a worker that is designed to stop a worker from complaining about discrimination/harassment. The adverse action should occur shortly after the worker complains.

Consult an attorney

If you are a victim of discrimination or retaliation, consult an experienced civil rights attorney.

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What Actions Can Be Considered Workplace Retaliation?

Woman at desk, head bowed over computer, as she grapples alone with illegal retaliation in her workplace

Retaliation is revenge and can conjure up notions of Liam Neeson going after his daughter’s kidnappers in “Taken.” Workplace retaliation isn’t quite so dramatic. Or at least, it’s hopefully not quite that dramatic.

But workplace retaliation can be devastating, and it can (but doesn’t always) break the law. Understanding the rules around workplace retaliation is critical for Human Resources staff members, managers, and anyone who has a position of influence in the business.

What Does Retaliation Look Like?

Jane comes to HR and says,

John keeps asking me out on dates. I have told him no and asked him to stop.

John is a high performer, so you transfer Jane to another less desirable shift.

This is a classic case of retaliation: Jane complained about sexual harassment, and you punished her by moving her to a different shift. Now, you may say “but her pay remains the same, her title and seniority weren’t affected. This isn’t retaliation. And besides, Jane didn’t even say it was sexual harassment.”

The employee doesn’t have to use the magic words to receive legal protection for their actions. Jane complained about unwanted sexual behavior in her department; therefore it’s a sexual harassment complaint. The transfer retaliates against Jane.

Bob has 40,000 Twitter followers, including several coworkers. He posts a picture of his paystub with the caption, “Can you believe that Acme Inc. pays such terrible wages?”.

One of his coworkers take a screenshot and presents it to you. Bob named the company, and many people have replied and retweeted his tweet. As a result, you call Bob into the office and tell him that he has violated the company’s social media policy, and for doing such, you are suspending him for two weeks without pay.

This is illegal retaliation for concerted activities. According to the National Labor Relations Board:

If employees are fired, suspended, or otherwise penalized for taking part in a protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

In other words, employees are allowed to discuss their working conditions with their coworkers, and talking about pay is covered by that law. It doesn’t matter that many others saw it on Twitter. The National Labor Relations Board still considers his comments concerted action.

Now, of course, there cases where retaliation is much more distinctly visible. Steve complains of racial discrimination. You immediately fire Steve for a poor attitude. But activities and actions like transfers  are a lot more difficult to pin down.

Is Retaliation Always Illegal?

It’s not. Retaliation is only illegal when the action that precedes the retaliation is protected by law. This can vary from state to state. It’s always illegal to retaliate against an employee for actions such as sexual harassment, racial discrimination, and concerted workplace activities. Some states have whistleblower protections that protect employees who bring up any variety of illegal activities, but not all.

If an employee makes a complaint that is unfounded, retaliation can be legal, and it can be illegal. For instance, if Jane complains that John is sexually harassing her, and you investigate and find out that actually John just asked her out one time. Factually, you found that Jane said no and he never bothered her again.

But, you still cannot retaliate against Jane as long as she genuinely believed that John behaved illegally. But, if you investigate and find out that Jane wanted John’s better shift, so she made up her complaint, then you can take action and retaliate.

The critical issue is that an employee must have a sincere belief that what they reported is illegal. Otherwise, retaliation is allowed.

Retaliation Doesn’t Stop Consequences

You may have a situation in which an employee is a poor performer, and just before you were going to discipline or terminate the employee, he files a complaint. That complaint doesn’t negate any other performance or employee actions. However, if you don’t have the documentation before the claim, acting after he files the complaint will look like illegal retaliation.

If you have documentation, you can continue along the disciplinary path, but do consider that the poor performance is a result of the harassment or discrimination, rather than an entirely separate situation.

How Do You Stop Retaliation?

Making a simple policy of “no retaliation” won’t solve all of your problems. (Of course, a policy never solves all problems.) You have to consider each situation carefully and on its own merits. Going back to Jane and John, how do you respond? If you determine John’s behavior wasn’t severe enough for punishment, yet Jane doesn’t wish to work with him anymore, how do you proceed?

If you transferred John to the less desirable shift, you are punishing him for something he didn’t do. Transferring Jane is retaliation as long as she had a sincere belief that John harassed her. Resolving such a situation can take serious negotiation and careful thought.

You may also need to sit down with Jane and explain why John’s behavior was not harassment, and that if she wishes to move to a different shift, you can do that, but otherwise, she still has to work with John. Explain to her that to transfer John when you have concluded that he did no wrong—is the wrong decision for the business.

You need to train your managers not to retaliate, and to report all protected complaints to HR. That will help you ensure that no retaliatory decisions happen and that you investigate all potential allegations.

Remember, if an employee sues you and you win on the facts, you can still lose on reported retaliation if you treated the complainant poorly. That’s why it’s critical to think through your actions before you take them and even consider discussing the right course of action with an employment law attorney.

 

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Do Companies Try to Settle Harassment Claims Out of Court?

by Ruth Mayhew; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA; Updated March 11, 2019

Do Companies Try to Settle Harassment Claims Out of Court?

Harassment lawsuits are costly, so out-of-court settlements save employers the time and expense of defending their employment practices. The U.S. Equal Employment Opportunity Commission, the agency that enforces employment laws, reports 26,699 charges of workplace harassment during fiscal year 2018. Approximately 7 percent of those claims were settled, and the EEOC recovered more than $134 million in damages, much of it through out-of-court settlements on behalf of employees who filed harassment claims. Out-of-court settlements often are more attractive to employers than gambling with a potentially sympathetic jury.

Early Stage Settlement

When an employee files an initial complaint about workplace harassment, it’s rare that the company is thinking about settlement at this point, unless there have been similar incidents in which the company has been cited or sued for harassment claims found to have merit. At this point, in addition to considering settling claims, the company should also consider organizational changes and mandatory leadership and employee training to eliminate unlawful workplace behavior and unfair employment practices.

Workplace Harassment Investigations

A human resources department staffer, outside consultant or a lawyer typically investigates workplace harassment claims. The person assigned to the investigation must know what constitutes workplace harassment vis-à-vis a thorough understanding of employment laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the National Labor Relations Act and the Taft-Hartley Act. Throughout the fact-finding process, with correct application of statutory law and knowledge of past practices, settlement may be part of the discussion among decision makers in the company.

Investigative Process and Goals

The goal of every workplace investigation is to determine whether the harassment occurred, and if so, to what extent the employer is liable. During the course of an investigation, it might become clear that settling the harassment claim is a wise move – particularly if the investigator discovers evidence of egregious conduct that would make any jury decide in the employee’s favor. But if the investigation reveals that the company’s employment practices are defensible, the organization may decide that settlement is premature.

Impending Litigation Outside of EEOC Activity

Some harassment claims that the EEOC investigates are found to have merit, and even though an employee files a charge of discrimination with the EEOC, she can move forward with legal representation and seek redress through the courts. An employee has to file a charge of discrimination with the EEOC first, but she doesn’t have to wait until the agency completes its investigation to file a lawsuit – she can request a right-to-sue letter from the EEOC if she wants to move forward with litigation. In some instances, employees immediately retain legal counsel with the desire to press forward with litigation as quickly as possible.

The decision concerning whether to file a lawsuit before the EEOC has finished investigating the claim is up to the employee and her legal counsel, if any, and in some cases, whether the employer’s actions were especially egregious. Once a formal lawsuit is filed and the discovery process is underway to uncover details about the employee’s claim, the company’s investigative approach and past practices, the cost of litigation compels some employers to consider out-of-court settlement before the trial begins.

Costs to Settle a Claim

The cost to settle a harassment claim out of court can be far lower than damages that a court might award. Small businesses that lose harassment lawsuits could be liable for upwards of $50,000 in damages – and larger organizations, up to $300,000. In addition, depending on how the employer postures its case, a jury could award much higher amounts for punitive damages – some headlines report jury awards in the millions of dollars. In addition, employers consider the intangible costs of fighting a harassment suit instead of settling it.

Settling harassment claims can save the organization from bad publicity, which can lead to business losses, plummeting employee morale and a sullied reputation in the business community.

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Terrorized by a Hostile Work Environment? 7 Essential Tips for 2020!

Source: Forensic Notes
If you’ve worked in a hostile work environment, you know the mental and physical toll it can take on you.

Perhaps, one of the reasons it takes such a toll is due to the feeling of helplessness to change the situation.

In this article we’ll discuss some tips and resources available to help you deal with a hostile work place and take control of a difficult situation.

Hostile work environment is any situation that makes a person feel constantly uncomfortable at their place of employment.

With potential consequences to both your physical and mental health – it is important to fight against hostile work environments.  Even if it means using the legal system.

However, in order for an employee to utilize the legal system, there must be proof of inappropriate conduct.

Situations that are considered a hostile workplace have been defined by various Federal Laws.  This includes the Civil Rights Act of 1964.  These laws describe inappropriate conduct in which a person is harassed or discriminated against due to:

  • race
  • religion
  • gender
  • national origin
  • age
  • disability.

Furthermore, the hostile environment must be pervasive and severe.  And to a level that deviates from the terms and conditions of a person’s employment.

It must create an environment that is abusive and not conducive for an employee to operate in, thereby affecting the quality of their work.

The test is generally would a reasonable person find the environment to be hostile or abusive?

The Equal Employment Opportunity Commission (EEOC) agency is responsible for investigating claims of this nature.

One important distinction to bear in mind is that the law is not meant to protect against simple teasing, brusque comments or isolated situations that are not serious.

In other words, if a boss is yelling at everyone (in an offensive manner) it may create a hostile space.

But this may not become problematic in the eyes of the law unless a particular person is singled out on one of the previously mentioned grounds.

Definition: What is a Hostile Work Environment?

Many employees believe that a lousy boss, a rude co-worker, or an unpleasant workplace constitutes as a hostile work environment. Others might believe it’s a lack of privileges, perks, and benefits.

However, in order for a workplace to be hostile, specific legal criteria must be met.

The definition of a hostile work environment is created when an employee feels uncomfortable or fearful in his or her work-space.  And this fear or discomfort is due an employer or coworker whose actions or behavior make doing their job impossible.

This includes; offensive behavior, intimidation or verbal or physical abuse.

The actions, communication, and behavior must be discriminatory in nature.

Workplace Bullying ≠ Hostile Work Environment

Workplace bullying DOES NOT constitute a hostile work environment.

Unfortunately for anyone being targeted by a workplace bully, the law in most parts of the U.S. says that behavior is perfectly legal.

As discussed above, the term “hostile work environment” only applies if the behavior is harassment or discrimination. And it’s the EEOC, the federal agency that regulates employers on this issue, that has set the boundaries.  According to the EEOC, harassment or discrimination is only happening if it’s “based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”

But here’s a few glimmers of hope.

First, your city may have it’s own laws prohibiting workplace bullying, so do a little research on that.

Second, it is quite possible that bullying could be considered workplace violence.

According to OSHA, the federal agency that regulates employers on this issue, it defines violence as ranging “from threats and verbal abuse to physical assaults and homicide.”

Of course, realizing you are the target of violence at work is not good news.  But using this knowledge may help make your case to HR and get their attention if you use explain the issue in these terms.

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Bryan A. Chapman, Esquire

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What Is Harassment?

Understanding and Addressing Harassment in the Workplace

harassment at work

Workplace harassment is unwelcome conduct from a boss, coworker, group of coworkers, vendor, or customer whose actions, communication, or behavior mocks, demeans, puts down, disparages, or ridicules an employee. Physical assaults, threats, and intimidation are severe forms of harassment and bullying.

Harassment also may include offensive jokes, name-calling, offensive nicknames, pornographic images on a laptop, and offensive pictures or objects. Interfering with an employee’s ability to do his or her work also is considered to be a form of harassment.

Employees can experience harassment when they are not the target of the harasser because of the negative work environment that can develop because of the harassment.

The Details

In all or some parts of the United States, demeaning another individual regarding a protected classification is illegal and discriminatory. As a form of employment discrimination, harassment can violate Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA).

Protected classifications of employees, depending on your state, can include:

  • Age
  • Race
  • Religion
  • National Origin
  • Sex or Gender
  • Gender Identity
  • Sexual Orientation
  • Physical or Mental Disability
  • Color
  • Pregnancy
  • Genetic Information
  • Weight

According to the U.S. Equal Employment Opportunity Commission, harassment becomes illegal when:

  • Putting up with offensive and unwanted actions, communication, or behavior becomes a condition of continued employment, or
  • The behavior is severe and pervasive enough to create a work environment that any reasonable individual would find intimidating, hostile, or abusive.

Harassment against individuals also is prohibited as retaliation for filing a discrimination charge, participating in a harassment investigation or lawsuit under these laws. The bottom line is that employees have a right to challenge employment practices that they believe constitute harassment.

Demeaning an employee for any aspect of their parental status, appearance, weight, habits, accent, or beliefs can be considered harassment and can add to a claim about a hostile work environment.

Employers avoid harassment charges when they create expectations in their workplaces that all employees will treat each other with respect, collegiality, fairness, honesty, and integrity.

How rampant is harassment?

There is no way to know for certain just how rampant various types of harassment are in the workplace. Undoubtedly, many go unreported to employers or the Equal Employment Opportunity Commission (EEOC). Others are adequately handled by employers without the need for government intervention.

The EEOC releases detailed breakdowns of workplace discrimination every year. In 2017, the EEOC handled 84,254 charges and secured more than $125 million for victims of discrimination in private, federal, state, and local government workplaces.

Specific reasons for charges being filed are detailed below in descending order. Some charges include more than one reason, so percentages add up to more than 100:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 206 (0.2 percent)

Preventing Workplace Harassment

In any case of workplace harassment, an employer’s behavior must meet a certain standard in the eyes of the law. Just posting an anti-harassment policy, while a positive step, is insufficient to prove that an employer took workplace harassment seriously.

Employers should develop policies that clearly define inappropriate actions, behavior, and communication. The workforce should be trained and educated through the use of examples, and the policy must be enforced.

If harassment is mentioned to a supervisor, observed by a supervisor, or committed by a supervisor, the employer is particularly liable if an investigation was not conducted.

A clear harassment policy gives employees the appropriate steps to take when they believe they are experiencing harassment. Companies must be able to prove that an appropriate investigation occurred and that perpetrators found guilty were suitably disciplined.



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Workers Win Only 1% Of Federal Civil Rights Lawsuits At Trial

A new analysis of employee lawsuits finds a low success rate for discrimination, harassment, or retaliation, and highlights the U.S.’s most-sued employers.

Workers Win Only 1% Of Federal Civil Rights Lawsuits At Trial

Claims of employee mistreatment are center stage, between sexual harassment and discrimination scandals in the TV business and in Silicon Valley, and now the Trump Administration’s retrenchment on LGBT protections in the workplace and banning of transgender people in the military.

But according to a new analysis of employment cases by legal research service Lex Machina, very few employees who file federal job discrimination, harassment, and retaliation claims even make it to court, and only 1% of those claims eventually succeed in court. A majority of cases are settled, employers prevailed on summary judgment roughly 13 percent of the time, and only 192 damage awards out of 72,000 cases included punitive damages.

THE LONG ROAD TO TRIAL

Employees who gather the courage to take action against their employer begin by filing a charge with the U.S. Equal Employment Opportunity Commission, typically within 180 days from the time the discrimination took place. Through a fact-finding process, the EEOC decides whether or not a charge is strong enough to take to trial. An overwhelming number of allegations do get the EEOC’s Notice of Right to Sue, which is a thumbs-up to proceed.

But few of these cases actually become lawsuits. For fiscal year 2016 (Oct. 1, 2015 through Sept. 30, 2016), employees filed 97,443 charges, and the EEOC issued 81,129 Notices to Sue (83.3%), according to records provided to Fast Company. For that same period, meanwhile, Lex Machina counted only 7,239 cases that went onto lawsuits—less than a tenth of the charges EEOC gave a green light to over the same time frame.

Lex Machina also examined data on the lawsuits themselves, and found an even smaller fraction of victories for plaintiffs.

Over an even longer period—from January 2009 through July 2017—Lex Machina found that of 54,810 cases that were filed and closed, employees bringing the suits won just 584 times in trial, or about 1% of the total. Employers won 7,518 cases, about 14%. Another 3,883 cases, or 7%, were settled on procedural grounds, mostly dismissing the employee’s claims.

Most cases from 2009 to the present ended in nebulous settlements.

What happened to the rest of the cases? No one knows for sure why 78% of cases were dismissed by either the employee or both the employee and employer, but Lex Machina assumes that almost all of those 42,742 cases were settled. But there is no legal requirement to file the terms or even publish the existence of a settlement, so it’s impossible to know for sure how these cases panned out.

Most settlements probably awarded money to the employee, according to Brian Howard, Lex Machina’s legal data scientist. But that doesn’t mean the settlement was a win for the employee.

“We don’t know how much money, what other terms the employee had to agree to, how much they originally sought, how often personal circumstances force the settlement, whether they got any feeling of vindication, etc.,” Howard wrote in an email. “Any settlement amount would likely have to address substantial legal fees, so a plaintiff’s actual recovery might be small.”

It’s not clear why so few employee charges move on to court. One reason may be because the costs of litigation to plaintiffs are often far higher than the actual damages. Plaintiffs, especially those newly out of a job, may be more willing to take a settlement than to pursue a costly and lengthy court trial. Or the cases may not be lucrative enough for an attorney to take on, says Howard.

Only rarely does the EEOC itself bring a case on behalf of the employee–usually for cases that have wide-ranging significance. For instance, the EEOC just sued Time Warner Cable and Charter Communications, charging them with firing an employee over her disability, in violation of the Americans with Disabilities Act of 1990.

EEOC said its legal staff resolved 139 lawsuits and filed 86 lawsuits alleging discrimination in fiscal year 2016. In total, it recovered $482 million for victims of discrimination, including $347.9 million recovered through mediation, conciliation, and settlements; $52.2 million obtained through litigation; and $82 million for federal employees and applicants.

EEOC has also pursued several LGBT related cases. But the Justice Department’s assertion last week that LGBT people are not covered under sexual discrimination laws—the same day President Trump announced that transgender people would be barred from the military—could be just the beginning of changing policies and priorities at the EEOC. Many top posts are being filled with Trump Administration appointees; and while funding has stayed the same, the White House Office of Management and Budget has ordered a reorganization of EEOC that may portend future cuts.

THE REASONS PEOPLE SUE

Discrimination claims make up the majority of complaints that go on to lawsuits, at 87%. Several U.S. laws protect employees against discrimination; Title VII of the U.S. Civil Rights Act of 1964, for instance, prohibits discrimination based on six criteria. They are, in order of number of EEOC complaints: race and sex (the vast majority), national origin, religion, and color. Another law, the Age Discrimination in Employment Act of 1967, prevents discriminating against people over 40 years old. Other laws prohibit discrimination based on criteria like disabilities or being pregnant.

…The second largest category of cases, after discrimination, is retaliation, such as getting fired or demoted for complaining to the employer or the EEOC about discrimination: These represented 66% of all claims. Claims of harassment, including sexual harassment, make up 35% of legal cases filed.

If you’re wondering why those shares add up to over 100%, that’s because many cases fall into more than one category: About half the cases filed since 2009 were for both discrimination and retaliation.

Overlapping claims of discrimination, retaliation, and harassment in U.S. lawsuits filed from 2009 to present. [Graphic: courtesy Lex Machina]

WHO GETS SUED THE MOST

Based on an analysis of cases between 2009 and 2017, Lex Machina has a rough idea of which companies and government agencies have been sued the most. The most commonly named defendants, listed alphabetically, are:

  • AT&T
  • Bank Of America
  • Boeing
  • CVS Pharmacy
  • FedEx
  • Home Depot U.S.A.
  • JPMorgan Chase Bank
  • Life Insurance Company Of North America
  • Sears, Roebuck And Co
  • Target Corporation
  • United Airlines
  • United Parcel Service
  • Walmart Stores
  • Walgreen Co.
  • Wells Fargo Bank

Notice the absence of Silicon Valley companies. Despite all the attention on sexual harassment in the tech sector, so far there have been relatively few legal actions brought by its employees. That could be because most tech firms are smaller than the industrial and commercial giants listed above.

Compared with tech company workers, most of the employees of larger American corporations can face a heavier burden when bringing discrimination or harassment suits. For instance, women in lower-paying jobs who are often subject to harassment have a much harder time fighting against it, since they don’t have the means to risk leaving or losing a job, as FiveThirtyEight documented.

The most-sued government agencies are:

  • City Of New York
  • City Of Philadelphia
  • District Of Columbia
  • New York City Department Of Education
  • United States Postal Service

…In the end, it’s hard to know how well the court system is working to protect employees from unfair treatment. It’s hard to know, for instance, of those cases that are ultimately settled, how many do justice to the employee? For all the data the EEOC and Lex Machina have collected, they show how much we still don’t know.

ABOUT THE AUTHOR

Sean Captain is a Bay Area technology, science, and policy journalist.



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Labor Laws and Issues

 

Source: USAGov

Learn about some important employment laws and issues.

Discrimination and Harassment at Your Job

The Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting employment discrimination. These laws protect employees and job applicants against:

  • Discrimination, harassment, and unfair treatment in the workplace by anyone because of:
    • Race
    • Color
    • Religion
    • Sex (including gender identity, transgender status, and sexual orientation)
    • Pregnancy
    • National origin
    • Age (40 or older)
    • Disability
    • Genetic information
  • Being denied reasonable workplace accommodations for disability or religious beliefs
  • Retaliation because they:
    • Complained about job discrimination
    • Helped with an investigation or lawsuit

Filing a Complaint with State or Local Government or Tribal Employment Rights Office

To file a complaint, contact your state, local or tribal employment rights office.

Many state and local governments have their own anti-discrimination laws. These laws may offer extra protections beyond federal laws.

Some state laws:

  • Apply to businesses with only five or six employees
  • Prohibit discrimination based on whether you’re married or have children
  • Have different deadlines for filing a charge
  • Have different standards for deciding whether you’re covered by them

Many state laws have more protections for nursing mothers than federal law requires. State labor offices enforce these laws.

Filing a Lawsuit

If you’re a victim of job discrimination or harassment, you can file a lawsuit. If the discrimination violates federal law, you must first file a charge with the EEOC. (This doesn’t apply to cases of unequal pay between men and women.)

You may decide to sue if the EEOC can’t help you. In either case, look for an attorney who specializes in employment law. You can check with:

Not All Employers Are Subject to EEOC Laws

An employer must have a certain number of employees to be covered by EEOC-enforced laws. This number varies based on the type of employer and the kind of discrimination alleged.

  • Businesses, state, and local governments must follow most EEOC laws if they have 15 or more employees.
  • Federal agencies must follow all EEOC laws, no matter how many employees they have.

Laws that the EEOC Enforces

Federal employment discrimination laws include:

Harassment

Harassment is unwelcome conduct based on:

  • Race
  • Color
  • Religion
  • Sex
  • National origin
  • Age
  • Pregnancy
  • Disability
  • Genetic information

It can include:

  • Offensive jokes
  • Physical assaults or threats
  • Ridicule or insults
  • Display of offensive objects or pictures

Sexual harassment may include:

  • Unwelcome sexual advances
  • Requests for sexual favors
  • Other verbal or physical harassment of a sexual nature
  • Offensive remarks about a person’s sex

Harassment becomes illegal when:

  • It creates a hostile or abusive work environment
  • The victim gets fired or demoted for refusing to put up with it

Protection from Retaliation

EEOC laws protect employees and job applicants from retaliation. For example, it’s unlawful to punish people for:

  • Filing or being a witness in an EEO charge or investigation
  • Talking to a supervisor or manager about discrimination or harassment
  • Refusing to follow orders that would result in discrimination
  • Resisting sexual advances, or intervening to protect others

Employment Background Checks

Local, state, or federal government agencies and private employers may perform background checks when they hire an employee.

The FBI has contact information for the state agencies that conduct background checks.

Request a Copy of a Federal Background Check or an Identification Record

The FBI website has information on how to request a federal background check or an identification record request.

Following the information on how to request a federal background check, you’ll find information on how to challenge inaccurate or incomplete information that appears on your record.

Arrest Records

If you are looking for information on arrest records, contact the appropriate law enforcement agency.

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal labor law that allows an eligible employee to take an extended leave of absence from work due to:

  • Illness
  • Caring for a qualifying sick family member
  • The birth or adoption of a child
  • Military caregiving or other emergencies related to a family member’s active duty service

 

This unpaid leave is guaranteed by law and is available to workers at companies with 50 or more employees. FMLA fact sheets can help you understand your rights and coverage.

Questions or Reporting a Violation of the FMLA

If you have unanswered questions about the FMLA or you believe someone has violated your rights under FMLA, contact the Department of Labor’s Wage and Hour Division for assistance.

Employer Information

Employers with FMLA eligible employees have specific rights and responsibilities under the law. Learn how different types of employers may be covered by the FMLA.

If you are an employer with concerns about false FMLA leave, contact the Wage and Hour Divisionwith any questions about FMLA compliance and seek the advice of your company’s legal and human resources departments.

Labor Unions

A labor union or trade union is an organization of workers which bargains with employers on behalf of its members. The purpose of a labor union is to negotiate labor contracts. Elected leaders of labor unions negotiate specific items of employment including:

  • Pay and benefits
  • Working conditions
  • Complaint procedures
  • Hiring and firing guidelines
  • Help with unfair labor practices

When a union leader negotiates an agreement, it’s binding on the union members and the employer. Sometimes, these agreements affect non-union workers as well. Labor unions can be found in the private sector and at government agencies.

Private Sector (Non-Government) Employees

The National Labor Relations Board (NLRB) is an independent federal agency. It oversees and protects the rights of most private-sector (non-government) employees. The NLRB helps employees determine whether to have unions as their bargaining representative.

  • You or your co-workers can start, join, or end union representation by filing a petition form. Your petition must show the support of at least 30 percent of your fellow employees.
  • If you have a complaint about a union, contact your nearest NLRB regional office.
  • The NLRB does not handle certain forms of employment discrimination including:
    • Race
    • Sex
    • Workplace safety
    • Entitlement to overtime pay
    • Family and medical leave

Visit the related agencies section of the NLRB website to see which state or federal agency can help with your specific complaint.

Federal and State Government Employees

  • If you’re a federal employee and have a question or complaint about federal unions, contact the Federal Labor Relations Authority (FLRA). The FLRA an independent federal agency responsible for the labor-management relations program. It establishes policies and resolves disputes for most federal employees and their managers.
  • If your federal agency doesn’t have a union, you and your co-workers can start one. Contact an FLRA regional office and file a petition form (PDF, Download Adobe Reader).
  • If you’re a state or local government employee and have a question about unions, contact the information officer of the NLRB regional office closest to your job.

Minimum Wage, Overtime, and Misclassification

The U.S. Department of Labor’s Wage and Hour Division (WHD) administers and enforces some of the nation’s most comprehensive labor laws. They include:

Minimum Wage

  • The federal minimum wage is the lowest legal hourly pay for many workers. Tipped employees may have a different wage.

Overtime Pay

An employer may require or permit a worker to work overtime. The Fair Labor Standards Act states that workers who clock more than 40 hours per week are to get overtime pay. There are few exceptions to this rule.

Misclassification

An employer says a worker is an independent contractor. The law says the worker is an employee. That’s misclassification, which can:

  • Affect a worker’s pay, protections, and benefits
  • Cause tax problems for both businesses and workers

Resources and Next Steps

Learn About Your State’s Labor Laws

Labor laws vary by state. Contact the state government for information about specific laws where you work.

Unsafe Workplace Complaints and Conditions

Several different federal government agencies handle questions or complaints about workplace issues, depending on the nature of the issue:

Workers’ Rights

As an employed worker, you’re entitled to certain rights in the workplace – especially ones that keep you safe. These include the right to:

  • Be trained in a language that you understand
  • Be provided with the necessary safety equipment
  • Report injury or illness
  • Voice your concern over unsafe working conditions without fear of retaliation

In order to improve safety in the workplace, the Occupational Safety & Health Administration (OSHA) updated its existing rules regarding how employers must report injury or illness in the workplace.

As of January 1, 2017, certain employers are required to electronically submit injury or illness data. Doing this allows OSHA to improve enforcement of workplace safety requirements and provide valuable information online for workers, job seekers, customers, and the general public. The new rule also prohibits employers from discouraging their workers from reporting an injury or illness.

Workers’ Compensation

Workers’ compensation laws protect employees who get hurt on the job or sick from it. The laws establish workers’ comp, a form of insurance that employers pay for. These laws vary from state to state and for federal employees.

Benefits Provided by Workers’ Compensation

In general, workers’ comp provides:

  • Coverage for workers’ medical expenses
  • Compensation for lost wages while a worker is out recovering
  • Benefits for dependents of workers who died from job-related hazards

Private Sector and State or Local Government Employees

If you get hurt working for a private company or state or local government, seek help through your state. Your state workers’ compensation program can help you file a claim. If your claim is denied, you can appeal.

Longshoremen, Harbor Workers, Coal Miners, and Federal Employees

Federal laws protect longshoremen, harbor workers, coal miners, and federal employees. Contact the workers’ compensation program that applies to you for help filing a claim.

Wrongful Discharge/Termination of Employment

If you feel that you have been wrongfully fired from a job or let go from an employment situation, you may wish to learn more about your state’s wrongful discharge laws.

  • Wrongful termination or wrongful discharge laws vary from state to state.
  • Some states are “employment-at-will” states, which means that if there is no employment contract (or collective bargaining agreement), an employer can let an employee go for any reason, or no reason, with or without notice, as long as the discharge does not violate a law.

 

If you feel you have been wrongfully discharged or terminated from employment, you may:

Employers

If you are an employer seeking information about legal termination of employees, you may wish to contact both the Equal Employment Opportunity Commission (EEOC) and your State Labor Office to ensure you do not violate any federal or state labor laws. You may wish to consult with a licensed attorney.

Youth Labor Laws

Youth labor laws help keep young workers safe on the job and keep work from interfering with school. They can also protect teens from job discrimination.

Youth Rights and Restrictions on Types of Work, Hours, and Pay

If you’re under 18 and want to get a job, it’s important to know what rights and restrictions you have as a worker. Youth labor laws exist to protect you from unsafe and inappropriate work experiences. They’re also meant to ensure your job doesn’t interfere with your schooling. These laws establish:

  • What types of work you’re allowed to do
  • When you’re allowed to work
  • How many hours per week you’re allowed to work
  • How much you should be paid

The Department of Labor’s Youth Rules website helps you:

  • Know the Rules: Select your age and learn what work you’re allowed to do and when you’re allowed to work.
  • Find Support: Learn about other agencies that can help you and learn how to file a complaint.

Youth Rules also helps employers, parents and educators stay informed. And it has a law librarywith federal and state youth employment laws. The rules for young employees are different depending on your age and the state you live in. When federal and state rules are different, the rules that provide the most protection apply.

Safety and Health Standards for Teens on the Job

Employers must follow all Occupational Safety & Health Administration (OSHA) standards. These help protect you from injury at work. Besides following the federal and state rules on youth labor, employers must:

  • Provide a hazard-free workplace
  • Give you training on potential workplace safety issues
  • Provide you with resources to answer your questions on safety or health in the workplace
  • Tell you what to do if you get hurt on the job

OSHA provides resources for young workers, including information on how to protect yourself in jobs in:

  • Restaurants
  • Agriculture
  • Construction
  • Landscaping

Civil Rights Protections for Teens at Work

Youth@Work, a division of the Equal Employment Opportunity Commission (EEOC),  will help you:

  • Learn your rights as a young worker
  • Identify workplace discrimination
  • Learn what laws are enforced by the EEOC
  • File a complaint if you suspect workplace discrimination



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Types of Workplace Discrimination

Workplace discrimination

What is workplace discrimination, and what constitutes discrimination against employees or job applicants? Employment discrimination happens when an employee or job applicant is treated unfavorably because of his or her race, skin color, national origin, gender, disability, religion, or age.

It is illegal to discriminate based on race, religion, gender, or national original when hiring or in the workplace.

It is illegal to discriminate in any facet of employment, so workplace discrimination extends beyond hiring and firing to discrimination that can happen to someone who is currently employed.

What Is Employment Discrimination?

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in hiring, discharge, promotion, referral, and other facets of employment, on the basis of color, race, religion, sex, or national origin. This is enforced by the Equal Employment Opportunity Commission (EEOC).

In addition, federal contractors and subcontractors must take affirmative action to guarantee equal employment opportunity without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. Executive Order 11246 is enforced by the Office of Federal Contract Compliance Programs (OFCCP).

Distribution of EEOC Complaints

The EEOC reported the following breakdown for the charges of workplace discrimination that were received by the agency in 2018:

  • Retaliation: 39,469 (51.6% of all charges filed)
  • Sex: 24,655 (32.3%)
  • Race: 24,600 (32.2%)
  • Disability: 24,605 (32.2%)
  • Age: 16,911 (22.1%)
  • National Origin: 7,106 (9.3%)
  • Color: 3,166 (4.1%)
  • Religion: 2,859 (3.7%)
  • Equal Pay Act: 1,066 (1.4%)
  • Genetic Information: 220 (0.3%)

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.  



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Employees may prevail against employers who use false accusations to hide severe retaliatory behavior.

Victims of workplace discrimination and/or harassment are encouraged to file a complaint with their employer or a government entity, such as, the Equal Employment Opportunity Commission (EEOC).  Filing a complaint is generally a prerequisite to pursuing a claim in state or federal courts.

However, filing a discrimination complaint can trigger a retaliatory response from the employer.  In general, retaliation is an impulsive reaction by an employer to a discrimination/harassment complaint filed by an employee.  The employer’s reaction to the employee’s complaint results in harsher treatment, which can include termination.  Like discrimination, retaliation is illegal.  Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports…”); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (The evidence here showed that the administration intended to retaliate against Gowski and Zachariah because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them.)

While retaliation is generally impulsive, some employers are more calculating in the way they retaliation against employees. These employers use pretext (false justification) to hide their true retaliatory motive.

Like a spider and its web, these employers wait for the employee to make a minor mistake and then they use the employee’s minor mistake to falsely justify a severe retaliatory response, such as, a termination.  Hamilton v. General Electric Co., 556 F.3d 428, 435 (6th Cir. 2009) (“…Hamilton alleges that the bosses heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful discharge by closely observing an employee and waiting for an ostensibly legal basis for discharge to emerge).”); EEOC v. Boeing Co., 577 F. 3d 1044, 1050-3 (9th Cir. 2009) (“…after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated.[1] These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002.”)

In court, most employers use pretext as a standard defense against an employee’s claim of retaliation.  An employee with a record of satisfactory job performance will suddenly be accused, by their employer, of poor job performance or serious misconduct.  Often, this defense ploy lacks credibility on its face.

Courts recognize that employers use pretext to hide their true retaliatory motive.  With this in mind, employees may prevail in court by proving that their employer’s justification is false and retaliatory.  An employee’s record of satisfactory job performance or good conduct often speaks for itself.  (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010); Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct.  If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced attorney as soon as possible.

Bryan A. Chapman, Esquire

www.baclaw.com