Discrimination in the Workplace

Do you think that you might have been a victim of discrimination? El-Hag & Associates, P.C can help you. We are Westchester New York employment discrimination lawyers and labor lawyers. We have recovered hundreds of thousands of dollars for victims of workplace discrimination. We have brought discrimination lawsuits against small businesses as well as major multi-national corporations, and have achieved excellent results for our clients.

If you think you might be a victim of workplace discrimination, please call us today for a free consultation. We can quickly assess your case and let you know the options available to you.  In most cases, it is very difficult to prove discrimination because there is no “smoking gun”, which is why it is best to schedule a consultation and go through the facts.

What is employment discrimination

There are three categories of employment discrimination:

1)   “Disparate Treatment” employment discrimination: Disparate treatment discrimination is the main type of discrimination that employees complain about. Disparate treatment means that you are being treated differently from other employees. It is a direct act of discrimination against you. Examples of this is where all white employees receive a raise but you as a minority do not, or a woman is not promoted because a lesser qualified man was promoted instead.


 2) “Disparate Impact” employment discrimination: Disparate impact means that your employer has a policy that is not discriminatory when you read it, but the result that the policy has is that it has a negative effect on a protected class (see below for more on the term protected class). A current example of a disparate impact policy is when an employer does not hire employees with a criminal background. Many times, there is no legitimate business reason as to why an employer will hire no employees with any criminal background. And this can be discriminatory because, unfortunately, the minority population tends to have higher instances of criminal convictions. Disparate impact is seen most often in hiring policies.

3) Harassment in the workplace: Harassment is a form of employment discrimination that violates 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). Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment is unlawful when:

  • enduring the offensive conduct becomes a condition of continued employment, or
  • the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

  • The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  • Unlawful harassment may occur without economic injury to, or discharge of, the victim.

What is not discrimination or harassment

At El-Hag & Associates, P.C we receive calls every day from people who believe that they have been discriminated against because they feel that they lost their job for unfair reasons, or because the workplace is not fair. This is not harassment or discrimination by itself. To deal with workplace fairness, you should contact El-Hag & Associates, P.C about union formation- Harassment

It is not harassment when people in the workplace make petty slights, are generally annoying, or make isolated discriminatory or derogatory remarks (unless extremely serious). To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people

Discrimination. Discrimination must occur because of your being part of a protected class. For example, an employer can decide that he will fire any person if they come 1 minute late to work, even if it happened only 1 time. But it would be discriminatory if the employer said that he is only going to apply that policy to Hispanics.


How do you win an employment discrimination lawsuit?

Generally, there are several factors that you must prove to win an employment discrimination lawsuitIf you can answer yes to the following questions, you may have been a victim of employment discrimination:

1)  Do you work at a company with 4 or more employees? The New York State Human Rights Law only protects employees who work for an employer with 4 or more employees. The Federal Law requires that the employer employ more than 15 employees. So the first thing to check is if you are protected by the law.

2)  Did something bad happen to you at work? This is known as an “adverse employment action”. You must be able to show that something bad happened to you at work. Examples of adverse employment actions include:

  • Being fired,
  • Being laid off;
  • Not receiving a raise;
  • Being demoted
  • Being passed over for a promotion;
  • Being harassed at work;

3)  Are you a member of a protected class? To prove employment discrimination, you must show that you are a member of a “protected class”. “Protected class” means that you fall into one of the following categories:

  • Age;
  • Disability;
  • Equal Pay/Compensation;
  • Genetic Information;
  • Harrassment;
  • National Origin;
  • Pregnancy;
  • Race/Color
  • Religion;
  • Retaliation;
  • Sex;
  • Sexual Harassment

4) Were you qualified to perform the job at issue? You must be able to demonstrate that you had the right skill set to perform the job at issue.

  • An example of being unqualified- if you apply for a job as a lawyer but you don’t have a law degree, you won’t be able to say that you were discriminated against if a law firm did not hire you.
  • An example of being qualified and passed over in a discriminatory situation would be if you were a woman with the same or greater education as a man, and both of you applied for a job position, and both you and the man had equal experience working in the position you were applying for. If the man was hired, but you were not, the company will have to be able to provide a legitimate reason that you as a qualified woman was passed over for the job.

5) Does it seem likely that the discrimination occurred because you are a member of a protected class? This means that there is some evidence that shows that something bad happened to you at work BECAUSE you belonged to a protected class. There must be a believable cause and effect relationship between your being a member of a protected class and the negative job action. For example:

  1. You were fired BECAUSE you are HISPANIC;
  2. You didn’t get a raise BECAUSE you were a WOMAN;
  3. You were fired BECAUSE you were DISABLED;

6) Is your employer’s reason for taking the adverse action a lie (“Pretext”)? Your employer can take any negative action in the workplace as long as there is a legitimate reason for it and it is not retaliatory. In almost 100% of the discrimination cases, your boss is going to have an excuse that explains why you were treated badly. It is your responsibility to demonstrate that your boss’s excuse is not true and the real reason is discrimination. For example, if you are African American and your employer fired you because you performed you job poorly or had a bad attitude, your boss can terminate you. But if every non-African American acts the same way and performs the job the same way as you, then your employer’s excuse that you performed poorly is most likely a lie.

How can I sue my employer for discrimination?

There are 3 ways that you can file a discrimination lawsuit against your employer in New York. You need to decide what avenue you are going to take and give it careful thought because generally once you choose one option, you cannot change your mind and pursue another option. This is known as “election of remedies”.

The 3 main ways to bring the lawsuit are:

1) File a lawsuit directly in New York State Supreme Court. You can file a lawsuit against your employer under the New York State Human Rights Law. You have three years from the time the discriminatory action occurred.

2) File a charge with the EEOC, NY Division of Human Rights (NYDHR) or another local agency. You can file a charge with the Equal Employment Opportunity Commission (“EEOC”) (Federal), NYS Division of Human Rights (State), or local agency (E.g. Westchester County). When you file with the NYS Division of Human Rights, the Division will dual file your charge with the EEOC and the cases will be investigated at the same time. If the agencies find that your claim has merit they will issue a probable cause finding and you can then have an administrative hearing to decide your case.

3) File a charge with the EEOC and NY Division of Human Rights, and then à file a lawsuit in Federal Court. If you file you charges with the EEOC and NYDHR, you can choose to file a lawsuit in Federal Court if you do not want to proceed with these agencies. Once you obtain a right to sue letter from the EEOC, you have a limited time to file a lawsuit in Federal Court to pursue your lawsuit.

What can I win if I win a discrimination lawsuit?

There are a few categories of damages available to you if you win a discrimination lawsuit. However, not all of these damages are available to you depending on the law you are suing under.

1)  Lost wages and benefits. Generally, you must be made whole for the losses you suffered because of your employer’s discriminatory actions. Reimbursement for lost pay and benefits is one of the available categories of damages.

However, the reimbursement of lost wages and benefits is bittersweet because the law deducts any other income that you receive. So generally, unemployment benefits you received and income from new employment will be deducted from any award of lost pay and benefits. Moreover, if you secure a new job that is comparable to the job you lost, you do not get any more back pay and benefits.

** You have a legal obligation to find a new job and limit your lost pay and benefits. If you do not take steps to find a new job, you can get no back pay whatsoever!! This is known as “mitigation of damages”. It seems very unfair that your boss who discriminated against you gets to benefit from you finding new work, but that’s the way the law goes.

2)  Costs of finding a new job or remedying the discriminatory conduct. Because the law is designed to make you whole for your losses, you are entitled to recover any costs that you incurred in trying to recover from the discriminatory act. So your travel expenses that you incurred driving to job interviews or necessary and reasonable relocation costs are an example of the type of costs you can recover.

3)  Pain & Suffering. You are entitled to pain and suffering damages. Under the Federal Law, there are limits on how much you can recover for pain and suffering. These limits are known as “caps” on damages, and the caps are determined by the size of the company you work for. The limits are:

  • For employers with 15-100 employees, the limit is $50,000.
  • For employers with 101-200 employees, the limit is $100,000.
  • For employers with 201-500 employees, the limit is $200,000.
  • For employers with more than 500 employees, the limit is $300,000.

This means that under the federal law, if you won a lawsuit and were awarded pain & suffering the most you can receive is $50,000 if you work in a workplace that has 15-100 employees. The caps include punitive damages that you might be awarded.  Under the New York State Discrimination laws there are no caps on pain and suffering, but courts have reduced awards that they found too high.

No one can tell you how much you might receive from a pain and suffering award. But there are two factors that you can look at to determine whether you can receive a smaller or larger award:

     A)  How repulsive and persistent was the discriminatory conduct? The more repulsive the action and the longer you were exposed to them, generally the greater the possible pain and suffering award.  One time comments are generally not discriminatory. For the most part, one handed comments are not even actionable. If your employer made one inappropriate joke or discriminatory comment, generally it would not even be enough to sue (sometimes it is). However, if you put up with your employer making daily abusive comments, sexual advances, or other conduct that is generally inappropriate, the more likely you would receive a greater award.

    B) The significance of the impact the discriminatory act had on you. Even if the discriminatory action taken against you was bad, you won’t be entitled to much in pain and suffering if you did not have any pain and suffering. But if you experienced a lot of pain and suffering that you can prove, then the award goes up. What shows whether or not you incurred pain and suffering:

  • Did you require medical treatment on an ongoing basis;
  • Are you taking medication to deal with the mental pain;
  • Did you experience sleeplessness;
  • Could you not eat and lost weight;
  • Did you withdraw from family and friends because you were depressed;
  • Did you suffer from panic attacks;
  • etc.

** Age Or Sex Discrimination & Liquidated Damage. In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, victims cannot recover either compensatory or punitive damages, but may be entitled to “liquidated damages.”Liquidated damages may be awarded to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded the victim.

4) Punitive Damages. Punitive damages are designed to punish the wrongdoer. You must be able to show reckless disregard for the law or malicious conduct. It is a very high standard and not awarded often.

5) Reinstatement. You can be reinstated to your position or be placed into the position that you would have been in had the discriminatory conduct had no occurred.

6) Front pay. If reinstatement is not possible, a court may award reasonable front pay. This is the amount of money that you would have received had you continued to work for the employer.

Employment discrimination law is not an easy area of law, and proving a case can be tricky. Call today for a free case evaluation.  You can spend hours and hours searching websites and speaking to friends and family about what is happening at work, but the only way to get the right guidance is by contacting a legal professional to evaluate your case.

Many times, you can build your case while you are still employed. This is the best time to collect evidence and build your case. On many occasions, we have helped our clients find that “smoking gun” they need to prove discrimination. Once you have already become a victim, it is much harder to gather evidence because your ex-workers will become nervous to speak to you because they fear retaliation. You also will not be able to gather or review workplace documents that you could access as an active employee.

Don’t wait, call us today and we can walk you through your rights and the avenues that you have available to you.