Workplace Discrimination Frequently Asked Questions

Most people probably assume that on-the-job discrimination is easy to spot. However, under our system of laws, actionable workplace discrimination is not always obvious. While direct and deliberate discrimination certainly does still occur, the majority of workplace discrimination is indirect and subtle. In fact, workers and applicants who have been victims of discriminatory employer practices may not even realize it. Workers need to know the law in order to understand when they are suffering due to discrimination. That is why our legal team at Joseph and Kirschenbaum LLP would like to provide answers to some frequently asked employment discrimination questions.

Just because you have suffered some adverse employment action does not necessarily mean you are the victim of discrimination. There are two additional factors: membership in a protected class and a causal relationship between that membership and the adverse employment action.

Just about anyone can be a member of a protected class. You do not need to be a member of a traditional minority. Protected class simply means that you are being singled out for different treatment based on a characteristic defined by U.S., N.Y. and NYC law. If an employer singles you out because you like a particular sports team, it is not discriminatory. If you are singled out because of your race, regardless of what your race is, you may be the victim of discrimination.

Having evidence of the causal connection between your membership in a protected class and adverse employment action is the most important and difficult aspect of recognizing discrimination. Evidence can be direct, such as statements by your employers that you were treated differently because of your membership in a protected class. However, more frequently, evidence is circumstantial. To determine if you were the subject of discrimination, ask yourself:

• Were there valid reasons for your employer taking action against you?
• Were similarly situated employees who were not members of your protected class treated differently?
• Is your protected class statistically underrepresented at the company?
• Was the action taken against you in line with the company's policies?
• If you were not a member of a protected class, would you have been treated better?

A strong circumstantial case can be just as compelling as one built on direct evidence.

There can be a fine line between workplace teasing and conduct that creates a hostile work environment. A hostile work environment may exist when harassment is so frequent or severe that it creates a work environment that is objectively intimidating and offensive to reasonable people, and is subjectively intimidating and offensive to those impacted by it. A “hostile work environment” is created when the environment becomes hostile to members of a protected class. A mean, unfair boss has done nothing illegal if she is equally mean to all types of people.

One of the chief reasons people decline to report discriminatory conduct is the fear of retaliation from their employers. Fortunately, virtually every federal, state and local law that prohibits workplace discrimination also includes a component that makes it a separate offense for employers to retaliate against those who file complaints, voice concerns or participate in investigations under those laws. Of course, filing a complaint or participating in an investigation does not provide blanket immunity from adverse actions by your employer. Employers are not liable for taking such action for non-retaliatory reasons, but only if they can demonstrate that they would have taken the adverse action even if you had never complained and for a non-discriminatory reason.

If you feel you are the victim of employment discrimination and are unsure of what to do next, our attorneys at Joseph & Kirschenbaum LLP provide a no-cost initial intake analysis to listen to your story and evaluate your legal claim. We are available by phone at 212-688-5640. We can also be reached online. Se habla espanol.