The Warshawsky Law Firm represents employees who have suffered discrimination and retaliation in the workplace.  “Discrimination” generally refers to treating an employee unfairly based on the employee’s legally protected characteristics, such as age, sex, race, religion, or disability. “Retaliation” generally refers to treating an employee unfairly based on the employee’s good faith assertion of legally protected rights, for example, complaining about discrimination or “blowing the whistle” on corporate or governmental wrongdoing.

Discrimination and retaliation can involve “tangible employment actions,” which are decisions that cause a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits.  They also can involve a “hostile work environment,” which is where the words and actions of a supervisor or coworker create an abusive or intimidating workplace that negatively impacts another employee’s ability to do his or her job.  Note:  The legal standards for what constitutes a hostile work environment can be very different under federal, state, and local laws.

Federal, state, and local employment laws prohibit discrimination and retaliation in every aspect of employment, including:

• job advertisements
• recruitment and references
• applications
• hiring decisions
• job assignments and responsibilities
• working conditions
• pay and benefits
• promotions and raises
• discipline
• discharge

Employers may not make any employment-related decisions or subject an employee to a hostile work environment based on an employee’s legally protected characteristics or legally protected conduct, as defined by applicable federal, state, and/or local employment laws.  These laws include:

• Title VII of the Civil Rights Act of 1964:

Title VII is a federal statute, 42 U.S.C. § 2000e et seq., that makes it illegal to discriminate against employees (including job applicants) on the basis of race, color, religion, national origin, or sex.  (Another federal statute that prohibits race discrimination is 42 U.S.C. § 1981.)  The Pregnancy Discrimination Act of 1978 amended Title VII to add protection for pregnancy, childbirth, and related medical conditions.

Title VII also makes it illegal to retaliate against an employee because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Title VII also requires that employers reasonably accommodate employees’ sincerely held religious beliefs, unless doing so would impose an undue hardship on the company.

Title VII applies to employers with 15 or more employees, as well as state and local governments.  To assert a claim under Title VII, a plaintiff must first file a charge of discrimination with the EEOC, generally within 180 days from the challenged act of discrimination or retaliation.

• Age Discrimination in Employment Act of 1967:

The ADEA is a federal statute, 29 U.S.C. § 621 et seq., that makes it illegal to discriminate against employees (including job applicants) on the basis of age.  The ADEA protects people who are 40+ years of age.  The ADEA also makes it illegal to retaliate against an employee because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The ADEA applies to employers with 20 or more employees, as well as state and local governments.  To assert a claim under the ADEA, a plaintiff must first file a charge of discrimination with the EEOC, generally within 180 days from the challenged act of discrimination or retaliation.

• Americans With Disabilities Act of 1990:

The ADA is a federal statute, 42 U.S.C. § 12101 et seq., that makes it illegal to discriminate against employees (including job applicants) on the basis of disability.  (Another federal statute that prohibits disability discrimination is the Rehabilitation Act of 1973.)  Under the ADA, a “disability” is a physical or mental impairment that substantially limits one or more major life activities (such as hearing, seeing, speaking, thinking, walking, breathing, or performing manual tasks).

The ADA also makes it illegal to retaliate against an employee because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The ADA also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would impose an undue hardship on the company.

The ADA applies to employers with 15 or more employees, as well as state and local governments.  To assert a claim under the ADA, a plaintiff must first file a charge of discrimination with the EEOC, generally within 180 days from the challenged act of discrimination or retaliation.

• New York State Human Rights Law:

The New York State Human Rights Law, N.Y. Executive Law, Article 15, is a comprehensive non-discrimination and non-retaliation statute.  The law prohibits discrimination based on age (18+), race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, pregnancy, disability, predisposing genetic characteristics, familial status, marital status, status as a victim of domestic violence, and prior arrest or conviction record.

The law also prohibits retaliating against any person because he or she opposed any practices forbidden under the law, or because he or she filed a complaint, testified or assisted in any proceeding under the law.  The State Human Rights Law contains similar reasonable accommodation requirements for religion and disability that are contained in federal law, but the state law defines “disability” less strictly than the ADA, applying to any medically demonstrable physical, mental, or medical impairment.  The State Human Rights Law also imposes a less strict standard for what constitutes an illegal hostile work environment than federal law.

The State Human Rights Law applies to all employers in New York, including state and local government agencies.  A plaintiff wishing to assert a claim under the State Human Rights Law may file a lawsuit in court (with a 3-year statute of limitations) or a complaint with the State Human Rights Division (currently with a 1-year statute of limitations), but not both (this is known as an “election of remedies” provision).

• New York City Human Rights Law:

The New York City Human Rights Law, N.Y.C. Administrative Code, Title 8, is a comprehensive non-discrimination and non-retaliation statute.  The law prohibits discrimination based on age (all), race, creed, color, national origin, gender, gender identity or expression, pregnancy, disability, marital or partnership status, caregiver status, status as a victim of domestic violence, sexual and reproductive health decisions, sexual orientation, uniformed service, immigration or citizenship status, and prior arrest or conviction record.

The law also prohibits retaliating against any person because he or she opposed any practices forbidden under the law, or because he or she filed a complaint, testified or assisted in any proceeding under the law.  The City Human Rights Law contains similar reasonable accommodation requirements for religion and disability that are contained in federal law, but the city law defines “disability” less strictly than the ADA, applying to any physical, medical, mental, or psychological impairment.  The City Human Rights Law also imposes a less strict standard for what constitutes an illegal hostile work environment than federal law.

The City Human Rights Law applies to employers in New York City with 4 or more employees (but to all employers for claims of gender-based harassment), including city government agencies.  A plaintiff wishing to assert a claim under the City Human Rights Law may file a lawsuit in court (with a 3-year statute of limitations) or a complaint with the City Human Rights Commission (currently with a 1-year statute of limitations, but 3-years for claims of gender-based harassment), but not both (this is known as an “election of remedies” provision).

• New York State Whistleblower Laws:

New York has two general whistleblower laws, one for the private sector, N.Y. Labor Law § 740 (recently amended and expanded), and one for the public sector, N.Y. Civil Service Law § 75-b.  These laws are extremely broad in scope.  These laws make it illegal for employers to retaliate against employees who disclose or threaten to disclose an activity, policy, or practice of the employer that the employee reasonably believes violates any federal, state, or local law or regulation or poses a substantial and specific danger to the public health or safety.  These laws apply to every employer in the state.  The statute of limitations for bringing a civil action under these statutes is 2 years, although public employees who are covered by a collective bargaining agreement may be required to raise this claim under the negotiated grievance process.

• Protections for Federal Employees:

The federal government employs more than 100,000 civilian employees in New York.  Federal employees are not protected by state or local employment laws, but only by federal employment laws.  The rules governing federal sector employees can be more complicated and strict than those covering private employees.

Federal employees generally are protected from discrimination based on race, color, religion, sex (including sexual orientation, gender identity, and pregnancy), national origin, age (40+), disability, and genetic information.   They also are entitled to reasonable accommodations based on their religious beliefs or disability.  They also are protected from retaliation because they complained about discrimination or participated in an employment discrimination investigation or lawsuit.  Importantly, federal employees who experience discrimination or retaliation at work must follow special procedures, including complaining to their agency’s EEO office within 45 days of the alleged act of discrimination or retaliation.

Federal employees who “blow the whistle” on wrongdoing within their agencies, including gross mismanagement and misuse of taxpayer dollars, may be protected by the Whistleblower Protection Act of 1978, which covers most executive branch employees (one notable exception is Post Office employees, who are protected by a separate agency regulation).  The process under the WPA for seeking relief from unlawful retaliation is complex with strict time limits for filing claims and appeals.

Please note: The above summary is for general informational purposes only. The various federal, state, and local employment laws have different procedural rules, different legal standards, and/or different potential remedies.  All laws do not apply to all employers, to all employees, or to all workplace problems.  Employment law is multi-layered and can be quite complicated – which is why it is imperative to consult a qualified employment lawyer regarding all workplace issues and disputes.

If you or a loved one has suffered discrimination or retaliation in the workplace, please contact The Warshawsky Law Firm for a free consultation.