Category Archives: Sexual Harassment

EEOC: Employers, be Proactive vs. Workplace Harassment

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Thirty years ago, the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. Several examples of common harassment and discrimination that take place in the workplace are sexual harassment, pregnancy discrimination, racial discrimination, and age discrimination (under the Age Discrimination in Employment Act or ADEA). Recently, the EEOC issued a report encouraging employers to be more proactive in preventing workplace harassment.

In January 2015, the Equal Employment Opportunity Commission created a Select Task Force on the Study of Harassment in the Workplace (“Select Task Force”). This Select Task Force spent  18 months examining the myriad and complex issues associated with harassment in the workplace. In June 2016, the Select Task Force  published its findings. The report calls for employers to “reboot” workplace harassment prevention methods. The report also outlines statistics, risks and administrative recommendations.

The study encourages employers to assess their workplaces for the risks associated with harassment, survey employees. Further, the report urges employers to hold accountable managers and supervisors for preventing and reacting to grievances while also actively promoting diversity.

Interestingly, the report also states that employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Rather, any discipline that might result from such policy violations should be proportionate to the offense.

Additionally, the report finds that employers should also consider including a social media policy that ties into their anti-harassment policies.  The downside to this however is that the National Labor Relations Board has released guidelines on drafting and updating social media policies. Some cases have held that such a policy may violate an employee’s right to engage in protected concerted activity.

In conclusion, the findings state that the name of the game is truly harassment prevention. This may prove challenging as labor and employment laws are not logical and often do not follow common sense. To this end, seeking experienced legal counsel is critical.

Should you have questions, or wish to seek counsel, call Gilbert Law Group today at (631)630-0100.

Teacher Loses Employment Discrimination Case Against School District

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What does employment discrimination mean and when is an individual entitled to bring a workplace discrimination claim? How does employment discrimination law apply to Education Law?

 Generally, under Federal and New York State Laws employment discrimination occurs when a person or a group of persons is treated unequally based on race, gender, age, disability, religion, national origin, marital status, sexual orientation, veteran status, and political affiliation or beliefs, which has a negative affect on that individual. Therefore, job discrimination is prohibited and several Federal Acts have been enacted to support this objective, such as:

  1. Title VII of the Civil Rights Act of 1964 (Title VII),
  2. Equal Pay Act of 1963 (EPA),
  3. Age Discrimination in Employment Act of 1967 (ADEA),
  4. Title I and Title V of the Americans with Disabilities Act of 1990 (ADA),
  5. Civil Rights Act of 1991,
  6. Sections 501 and 505 of the Rehabilitation Act of 1973, and
  7. Title II of the Genetic Information Non-discrimination Act of 2008 (GINA);

 In a recently issued verdict that was tried before the U. S. Eastern District of New York Court in Central Islip, a middle school employee lost a racial discrimination case against Malverne public school officials. A middle school mathematics teacher who was denied a promotion or reassignment initiated the suit. The teacher alleged the District discriminated against him due to his race. At the conclusion of the trial, an eight-member jury examined all the evidence and determined that the teacher had failed to establish the school district and/or its administrators had violated federal laws prohibiting discrimination. In reaching this conclusion, there are several requisite factors which must be considered. In light of these requirements, the federal jury unanimously came to the conclusion that the school’s decision in refusing to promote or reassign the teacher an additional class was not racially motivated and as a result there was no basis to grant the teacher damages.

 Where, however, a court finds that a person has been unlawfully discriminated at their workplace, the substantial remedies are available including, but not limited to, hiring, promotion, backpay, reinstatement, front pay, emotional distress damages, and reasonable accommodation.

 If you have questions or concerns regarding employment discrimination, or have any questions relating to workplace law, call Gilbert Law Group at 631.630.0100.

Contributed by Sakine Oezcan, Esq.

Does Perception Equal Reality for Title VII Employment Discrimination?

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One major difference between the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 is that the ADA explicitly protects employees who are discriminated against because of an employer’s perception that they are disabled, although in reality they may not be. Title VII employment discrimination, on the other hand, does not recognize the concept of an employer discriminating against an employee based on that employer’s perception that an employee is a member of a protected class. Accordingly, a Title VII plaintiff historically has a higher burden of proof in establishing their prima facie case. Traditionally, although the same act of “discrimination” would not be the basis for an employment discrimination cause of action where the worker is not a member of a protected class, recent case law has demonstrated a trend towards expanding protections under Title VII to include an employer’s perception that an employee is a member of a protected class.

Two recent cases in particular are illustrative of this trend in employment discrimination. In Kallabat v. Michigan Bell Telephone Co., a federal judge ordered that a Michigan man’s case on perceived religious discrimination go forward. Mr. Basil Kallabat, a dark-skinned man of Iraqi descent, and a self-proclaimed non-Muslim, suffered an adverse employment action while working as a customer service representative. Even though a Title VII claim based on his color, gender, or national origin would be unimpeachable, Mr. Kallabat’s claim centered on an element of perceived religion. The plaintiff claimed that when he wore a hat backwards and a co-worker said it looked like a “topi” (a skullcap worn by Muslim men for religious reasons) and other workers starting laughing at Plaintiff as a result. Further, on another occasion, there was graffiti etched into the door of a bathroom stall of one of Defendant’s offices depicting two buildings similar to the Twin Towers with a plane hitting one of them and a caption that stated that the plaintiff is learning how to fly. After learning of the graffiti, the Area Manager said that Plaintiff was oversensitive, emotional, and unable to take the joke during a crew meeting. The Court denied the defendant’s motion for summary judgment, holding that a reasonable jury could find that the incidents are evidence of discrimination based on the perception that Plaintiff was a Muslim. Similarly, in Arsham v. Mayor & City Council of Baltimore, an Iranian engineer’s perceived Title VII claim survived summary judgment on the basis that her supervisor’s mistaken belief that she was Indian, and not Iranian, should not save the employer from Title VII liability.

With this potentially looming expansion of workplace religious employment discrimination protection, it is imperative that both management and employees know their respective rights as they relate to federal, state, and municipal ordinances. The Gilbert Law Group can help you navigate this fast changing legal arena.

 Schedule a consultation by calling (631) 630-0100.

 Contributed by Michael B. Engle

Offensive, Discriminatory Costumes At Work: From the Racist to the Racy

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Halloween is a good time for children and adults alike. But what the holiday represents to children can be far different than what adults look forward to come the end of October. Typically, adults perceive Halloween as an opportunity to get creative with their costumes while taking advantage of the fact that it is easier to get away with wearing an outfit which may not be considered appropriate at any other time of year. In one’s free time and in the company of their friends and family, surely this mindset should not be a problem, most of the time. Frequently however, employees attending Halloween parties at the office or at a work function take it too far by wearing costumes which could easily offend a co-worker. In doing so, one can open themselves or their employers up to liability for harassment and discrimination and and can be disciplined or terminated.

Costumes which should not be worn to work include those that are overly violent, gruesome, controversial, insensitive or grotesque. Some examples include bloody zombies, terrorists, police brutality victims, ebola patients, etc.

Other categories of costumes which will not be tolerated in the office or at a work event range from the racist to the racy. Obviously, if you dress as a nazi or kkk clan member, and the employer allows it, that can be considered blatant and willful discrimination based on race, color, national origin, etc. Likewise, inappropriate, sexually lewd or explicit costumes will lead to allegations of sexual harassment.

Another issue to consider is those employees who may be religious. If employees dress as the anti-christ, or a character from the Book of Mormon, it may lead to some claiming discrimination based on religion.

From an employer’s point of view, one need not be the costume police. An employer does not have to give a list of costumes which will not be tolerated. If you are going to have an event, tell employees that they are to use proper judgment and common sense; that any costumes deemed to be offensive or inappropriate, will lead to a supervisor inevitably telling the employee to change. It is always helpful to encourage employees to ask questions in advance. If there is an HR Department, it may be a good idea for them to speak to an HR rep before they show up in a hazmat suit, as not everyone will find that to be funny or appropriate. It is also important that employers have a policy as it relates to social media. Posting photos of Halloween costumes at work can lead to a negative perception of the company among other unintended legal consequences.

For questions or concerns relating to discrimination, sexual harassment, other workplace, or labor and employment issues, call Gilbert Law Group: (631)630-0100.