We’ve talked about many types of employment discrimination in past blog posts, from sexual harassment to discrimination against the deaf and hard of hearing. There are many other grounds for discrimination claims for employees in New York, though most of those grounds share the same general theories and elements. If you believe you’ve been the victim of discrimination in the workplace, but aren’t quite sure whether you have a legal claim, it’s best to first understand the basics of anti-discrimination law and what it protects to determine if your legal rights may have been violated. At Eisenberg & Baum, we have decades of experience handling employment discrimination claims of all sorts. In today’s post, we’ll talk about two of the more common theories of employment discrimination and the elements that are common to those theories under local, state and federal law. If, after reading this, you’d like to understand more about the law and how it might apply to your own situation, please contact us.
Types of Employment Discrimination Claims
There are a variety of federal, state and local laws that protect employees from discrimination at work here in New York. Federal anti-discrimination laws include Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (ADA),and the Age Discrimination in Employment Act. New York State and New York City each have their own employment discrimination laws, known as “Human Rights Laws.”
We’ll focus on two of the more common theories of discrimination underlying these laws: disparate treatment and harassment. Disparate treatment claims arise when an employee is treated differently at work because of some protected characteristic. Harassment claims, on the other hand, typically arise when an employee suffers unwelcome conduct based on a protected characteristic and either the employee had to endure the conduct in order to keep their job or the conduct created a hostile work environment.
Disparate Treatment Claims
To prove an employment discrimination claim based on the disparate treatment theory, the employee will need to demonstrate two key things:
- They are a member of a protected class, and
- Their employer took some adverse employment action against them because of that protected characteristic.
Federal, state and local anti-discrimination laws protect against particular types of discrimination based on specific classes and characteristics. Title VII of the federal Civil Rights Act, for instance, protects employees from discrimination based on their sex, race, color, national origin, and religion. The ADA protects employees from discrimination based on a “disability,” which under the law can include any physical or mental impairment that substantially limits a major life activity, such as deafness. New York State and New York City Human Rights Laws protect many of the same classes and characteristics as federal laws, but also extend to others characteristics not covered under federal law including sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence. Any employee claiming they were treated unfairly under anti-discrimination laws will need to demonstrate their status under a category protected from discrimination under one of these laws.
The next step for a plaintiff in a disparate treatment case is providing some evidence that they faced adverse employment action as a result of their membership in the protected class. Adverse action could include an active decision by the employer, such as firing or demoting an employee, or a passive decision such as not hiring a job applicant or passing an employee over for promotion.
The employee must provide some evidence linking the employment action to the employee’s protected characteristic. The evidence could be direct (for example, an employee’s manager telling her that the company has a policy of not promoting women) or, as is often the case, circumstantial. Circumstantial evidence, as the name suggests, is evidence from which you can infer an element of a claim based on the circumstances. In the context of a disparate treatment case, circumstantial evidence could include evidence that the employer treated similarly situated employees that weren’t part of the protected class more favorably (for example, men were promoted while women of similar ability were not).
Once an employee can provide evidence of the link between the adverse action they suffered and their protected characteristic, the burden then shifts to the employer to provide some legitimate reason for taking the employment action. This is a fairly low hurdle for the employer because they don’t necessarily need to prove they didn’t discriminate against the employee, they just need to produce some evidence of a non-discriminatory reason for their action. For example, the employer might argue the employee was not fully qualified for the job or promotion. If an employer is able to produce some evidence of a legitimate reason for the adverse action, then the employee will need to counter the employer’s claim with evidence that the true reason for the adverse action was discriminatory. The judge or jury will ultimately weigh the evidence provided by the parties and decide who should prevail.
Another common basis for employment discrimination claims is harassment. Generally, to prevail under a harassment theory of discrimination, an employee must be able to show:
- They were subjected to unwelcome conduct
- as a result of their membership in a protected class, and
- they had to endure the conduct in order to keep their job or the conduct created a hostile work environment.
We’ll discuss each of these elements briefly below. For a more thorough discussion of harassment claims, check out our posting entitled, “Definition of Harassment.”
The unwelcome conduct contributing to the harassment can be physical, verbal or some combination of conduct, and can be carried out by supervisors, co-workers or third parties like customers and vendors. The employee must show not only that such harassing conduct occurred, but also that they did not consider it welcome. In other words, consensual conduct between willing participants cannot be grounds for a harassment claim.
The protected classes we talk about in the context of harassment clai
ms are the same as we discussed above in the context of disparate treatment claims. Like a disparate treatment claim, an employee claiming harassment under federal law or New York State or City law must show a link between the unwanted conduct and the employee’s membership in the protected class. In some cases, that link between harassment and a protected characteristic will be very apparent, such as in a sexual harassment case where a male supervisor requires a female employee to engage in sexual acts. In other situations, the link between the harassment and the protected characteristic may be less obvious and require more evidence of the harasser’s intent.
Severe and Pervasive
Finally, in order to recover on a harassment claim under federal or New York State laws, the employee must show that the harassing conduct was either a condition of continued employment or was so severe or pervasive that it created an environment a reasonable person would find intimidating, hostile, or abusive (also known as a hostile work environment). Typically, in order to meet the severe and pervasive requirement, an employee would need to show a pattern of harassment, though that’s not always the case. A single incident could theoretically be egregious enough to meet this requirement. Note, the New York City Human Rights Law does not include this requirement for harassment claims.
Get More Information
If you believe you have been discriminated against at work, please contact us. We can discuss the merits of your case and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.