Pelton Serpe LLP - Discrimination

If you are being treated differently worse than others in your place of employment you may be a victim of employment discrimination. Employment discrimination may take the form of hiring bias, failure to promote, demoting a qualified employee or terminating a qualified employee. Employment discrimination may also take the form of subjecting an employee to a hostile work environment. In the State of New York it is illegal to discriminate against an employee based on sex, sexual orientation, race, gender, ethnic origins, religion, disability or pregnancy. The attorneys of Pelton Serpe LLP are experienced in prosecuting employment discrimination claims. If you feel as though you are a victim of employment discrimination, we urge you to contact us today to learn your rights under the law.

Sexual Orientation Discrimination

The Sexual Orientation Non-Discrimination Act (“SONDA”) prohibits discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights. While New York has a long history of prohibiting discrimination based on race, sex and religion, SONDA added the term "sexual orientation" to the list of specifically protected characteristics in various State laws, including the Human Rights Law, the Civil Rights Law, and the Education Law. SONDA took effect on January 16, 2003 and protects individuals who are discriminated against on the basis of sexual orientation from that date forward.

SONDA defines sexual orientation as “heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived.” Thus, the law affords protection where individuals are targeted either based on their actual sexual orientation, or based on what the discriminator believes their orientation to be. SONDA prohibits discrimination on the basis of actual or perceived sexual orientation in various areas, including:

In employment;
In the admission to and use of places of public accommodation, resort, or amusement;
In the admission to and use of educational institutions;
In publicly assisted housing;
In private housing accommodations and commercial space; and
In relation to credit.

SONDA also prohibits discrimination and/or harassment on the basis of actual or perceived sexual orientation in the exercise of an individual's civil rights. The prohibition on discrimination in private housing does not apply to the rental of single-family and owner-occupied two-family homes, while certain religious institutions are exempt from its regulations.

SONDA protects everyone in the State from discrimination on the basis of sexual orientation. Therefore, SONDA applies when a transgender person is discriminated against based upon his or her actual or perceived sexual orientation. In addition, courts in the State have held that transgender people are protected under other provisions of the Human Rights Law, including prohibitions against discrimination on the basis of sex and/or disability.

If you feel you have been the victim of discrimination, you may file EITHER:

A charge of discrimination with the New York State Division of Human Rights ("State Division"), or a local human rights agency, within one (1) year of the most recent act of discrimination; OR
(2) A complaint directly in State court within three (3) years of the most recent act of discrimination.

Various remedies are available if an individual can show discrimination. The victim may be awarded, among other things, compensatory damages for pain and suffering and the monetary value of any lost wages or benefits. Neither punitive damages (which are used to punish particularly egregious conduct) nor attorneys' fees are generally available. However, in housing discrimination cases only, up to $10,000 in punitive damages (paid to the victim) and up to $100,000 in fines (paid to the State) may be ordered. The discriminator may be ordered to take certain affirmative steps, including: hiring, reinstating, or promoting an employee; providing full, equal, and un-segregated accommodations and facilities to all persons; granting an application for credit; or evaluating applications for membership or admission on a nondiscriminatory basis.

The type of relief that is actually ordered will depend on the facts of each case. An individual will not necessarily receive all types of damages in every case, and the discriminator will not necessarily be ordered to take all of the affirmative steps listed above. Contact the attorneys of Pelton Serpe LLP today if you feel as though you are the victim of discrimination due to your sexual orientation.

Sex Discrimination & Harassment

Sex discrimination occurs when a person is treated differently on account of their gender. Sex discrimination in the workplace is illegal as it is prohibited by federal, state and local laws. In legal terms, sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile or offensive working environment. Sex discrimination includes sexually harassing behavior, which can range from repeated offensive comments, to offensive pornography, to a sexual assault. There are generally two types of sexual harassment that occur in the workplace: "quid-pro-quo" and "hostile work environment." Quid-pro-quo translates to "this for that" and signifies a trade, such as sex in return for a promotion. It is illegal for an employer to use sex as a prerequisite for benefits in the workplace, or as a condition of employment.

"Hostile work environment" includes any situation in which an employer, supervisor or co-worker engages in conduct that makes a co-worker feel uncomfortable because of his/her sex. Although a hostile work environment may exist simultaneously with a quid-pro-quo situation, there does not need to be a demand for an exchange of sex for a job benefit to constitute a hostile work environment. Courts have found that sexual jokes, offensive pictures, unwanted touching, leering, and requests for dates constitute sexual harassment in certain cases. The conduct must be offensive and unwanted by the victim. While sexual discrimination most often affects women in the workplace, it is also illegal for men to be discriminated against because of their sex.

Conduct that constitutes sexual harassment must be viewed in the context of the entire work environment and considered on a case-by-case basis. If one employee was telling sexually explicit jokes to a co-worker and the co-worker found the jokes funny and entertaining, this would not be considered sexual harassment. However, if the co-worker found the jokes offensive and was made uncomfortable by them, this would be considered sexual harassment.

If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, or is otherwise discriminating against you based on your sex, contact the attorneys of Pelton Serpe LLP to learn if you have a legal cause of action.

Race Discrimination

Racial discrimination involves differential treatment or harassment of an employee based on his or her race, national origin or on perceived characteristics or stereotypes associated with a particular race or ethnic group. People of all races and national origins must be treated equally in all aspects of the employment process, including help-wanted ads, interviews, pre-employment testing, hiring, job assignments, shift assignments, promotions, compensation, benefits, job training, layoffs or termination. Employment discrimination on the basis of race or national origin still happens more often than anyone wants to believe; and it is against the law. If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, these practices are also against the law.

Racial discrimination includes harassment based on race. This includes any action that causes an employee to feel uncomfortable at work because of his or her race. Such conduct includes racial "jokes," derogatory comments about an employee's race, hostile comments or actions toward the employee based on his or her race, the display of drawings or pictures that negatively portray a particular race, or any other action that creates an intimidating, hostile, or offensive work environment, or interferes with the employee's work performance. The harassing actions must be "severe and pervasive" to constitute illegal discrimination, meaning that an isolated incident or "offhand teasing" would not give cause for a lawsuit.

Differential treatment occurs when an employee is subjected to adverse employment action because of his or her race or national origin, e.g., if the employee is not hired or is fired because he or she is Asian or African-American. More subtle differential treatment occurs when the employer has a policy or practice which inherently discriminates against members of a particular ethnic group. For example, if the employer requires all employees to meet certain height and weight requirements, people of Asian descent (who are statistically lighter and smaller than individuals in other ethnic groups) will be disproportionately affected by this rule. For an employer to legally maintain such a policy, the height and weight requirements must be clearly related to the physical demands of a particular job (such as constant heavy lifting of objects onto high shelves).

It is illegal for an employer to retaliate against an employee for complaining about an employer’s failure to abide by employment laws. An employer may not fire, demote or discipline an employee for any formal or informal complaints made about discrimination, harassment or such other employment law.

Age Discrimination

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people over 40. In an age discrimination case, an employee can recover past and future lost wages and benefits, compensation for emotional distress, attorney fees, and punitive damages. The ADEA covers government workers as-well-as private employees over 40 years of age who work for employers with 20 or more employees. Conduct that constitutes age discrimination can range from the most visible examples of bias, such as when a bank hires a young, inexperienced bank teller instead of an older woman who has years of experience in the field, to more subtle instances of discrimination, such as when an executive is moved to a smaller office after he or she reaches age 55, or when a promotion is filled by a younger staff member before the older workers even hear about the opening. Victims of discrimination in the workplace can recover back pay (lost wages), front pay (future lost wages), promotion, or reinstatement to the position that was denied because of discrimination; compensatory damages for emotional distress; punitive damages against an employer if he/she was acting with malice or reckless indifference; attorney’s fees and court costs; and any other award that would make the victim “whole,” (put the victim in the same position he/she would have been absent the discrimination).

Disability Discrimination

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. The ADA applies to employers with 15 or more employees. The laws of your state of municipality may also prohibit disability discrimination and they may apply to smaller companies. Discriminating against a qualified employee because of impairment is not only morally reprehensible; it is against the law. The Americans with Disabilities Act was enacted to protect qualified employees from discrimination based on their disability. We urge you to know your rights if you find that you are being discriminated against because of your disability. If you can perform the essential functions of your job with reasonable accommodation, but you have been denied a job, a promotion, or laid off because of the disability, we urge you to consult with an attorney about your case.

If you can perform a job with an accommodation, an employer must make a reasonable attempt to accommodate your disability. Your employer may not take adverse job action against you because of your disability or because of your request for an accommodation for special equipment, work rules, job hours, reasonable time off, or a transfer to a different available position.

Pregnancy Discrimination

The Pregnancy Discrimination Act, or PDA, states that it is illegal for employers to intentionally discriminate against a pregnant employee, or to maintain a company policy which, intentionally or unintentionally, adversely affects pregnant employees. An employer also cannot discriminate on the basis of childbirth or related medical conditions, and must give the same treatment and benefits to pregnant employees as it does to other temporarily disabled employees. If a pregnant employee is temporarily unable to perform her employment duties due to her pregnancy, her employer must treat her the same as any other temporarily disabled employee, e.g., by providing modified tasks, alternative assignments, disability leave or leave without pay. Further, it is illegal for an employer to retaliate against an employee for complaining about pregnancy or gender discrimination.

If you feel as though you are the victim of employment discrimination or harassment, contact the attorneys of Pelton Serpe LLP today by completing a Free Case Evaluation, emailing info@peltonserpe.com, or by calling (212) 725-3600 or toll free at (888) 542-8529.