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Long Island Employment Law Blog

How discrimination may manifest in the workplace

A study released in March drew on the experiences of 500 people who had faced workplace discrimination related to factors such as their age, gender, religion, race, sexual orientation, pregnancy or marital status. In some cases, the discrimination was subtle. The researchers identified a number of different ways that discrimination might manifest in workplaces in New York and throughout the country.

Some people felt pressure to hide aspects of themselves. As an example, researchers pointed to a gay woman who felt she could not talk about her wife at work. Some employees said they felt they were perceived as less competent because of their age, race, gender or other factors. In other cases, employees were criticized for qualities, such as aggression, that might have been praised in young white male employees.

New rule bans salary questions in New York City

On April 5, the New York City Council voted 47-3 to ban New York City employers from asking about the salary history of prospective employees. This was done primarily in an effort to close the wage gap between male and female workers. The bill prohibits both public and private sector employers to use prior salary information to make a new salary offer.

One member of the council pointed out that being underpaid in one job could lead to being underpaid for an entire career. Furthermore, those who are paid less may also have fewer retirement benefits. According to one study, women in New York City were paid a combined $5.8 billion less than male workers.

The struggle to end sexual harassment at work

New York residents may have heard about sexual harassment scandals at large companies like Uber and Sterling Jewelers. These incidents have come to light at a time in which there has been an increased awareness of the phenomenon. Therefore, a person may imagine that companies would do more to prevent such incidents from happening.

In most cases, companies do have internal policies that are aimed at stopping harassment from taking place. However, they may serve as little more than perfunctory gestures. In fact, those who come forward with allegations of sexual harassment may be as likely to face punishment as those who are alleged to have committed the act. Businesses that run sexual harassment reporting hotlines may simply use them to find out about potential lawsuits and scare victims from pursuing them further.

How age bias may keep older workers unemployed

Many older workers in New York hope to stay active in their jobs past the usual retirement age. However, research from an economics professor at the University of California, Irvine, says that it may be difficult for many of them to find work. Along with two other economists, the study sent 40,000 resumes applying for actual job openings. The resumes were all identical except for the ages of the hypothetical applicants.

In general, the call-back rates were lower for older workers compared to younger workers. Furthermore, the call-back rates were lower for older women than they were for older men. While blatantly telling workers over a certain age not to apply for a job is illegal, there are ways that employers may screen out older workers. For instance, they may ask that applicants are only a couple of years out of college.

Religious discrimination in the workplace

According to a speaker at the Society for Human Resource Management's Employment Law and Legislative Conference, workers in New York and the rest of the United States should be diligent when speaking about religious discrimination in the workplace. This advice comes in the wake of religious community centers being threatened and as travel and immigration efforts from certain countries are being restricted on the basis of religion.

Religion does not refer only to organized, traditional faiths like Islam, Buddhism or Christianity; it also encompasses individuals who adhere to the principles of lesser-known religions, who possess a sincerely held religious belief that is not held by the religious group to which they belong and to those who have sincere nontheistic belief concerning what is wrong or right. Hate groups, economic philosophies and political organizations are not considered religions.

(th Circuit decision expands whistleblower protections

New York employees may be interested to learn that the U.S. Court of Appeals for the 9th Circuit ruled that employees who make reports internally about violations the company or another employee may be involved in are covered by the whistleblower provisions under the Dodd-Frank Act. This means that employees do not have to file a report with the Securities and Exchange Commission to still be protected against retaliation.

In the case, the employer argued that, because the employee had only reported his concerns internally and not to the SEC when he was terminated, he was not protected under the Dodd-Frank Act. The appellate court ultimately sided with the employee and determined that those who only reported internally were still protected against retaliation.

Using intermittent FMLA leave in New York

With the Family and Medical Leave Act, people have the ability to take time off of work that is in preset amounts. They may also take intermittent FMLA, which lets them be away from work at times of their choosing. This allows people to deal with family issues, such as child with an illness, or recover from a medical condition.

While employees have a fair amount of leeway when it comes to taking time off for intermittent FMLA, a court case in Tennessee demonstrates why it's essential for people to follow their employer's call-in rules. An employee was informed that she must call in at least 30 minutes before missing work, but she failed to do so multiple times.

Sterling employees claim a culture of harassment

New York residents may have heard about a class-action arbitration brought against Sterling Jewelers by thousands of current and former female employees. Sterling is the parent company of retailers such as Jared the Galleria of Jewelry and Kay Jewelers. The lawsuit claims that a culture of harassment has existed within the organization since the 1990s. It should be noted that not all of the parties to the suit are claiming that they were sexually harassed.

Some have claimed that they were the victims of gender bias in the workplace in addition to wage discrimination and being passed over for promotions. The lawsuit also alleges that male managers from the company's Akron headquarters would send so-called search parties to the stores. The purpose of these search parties was to find women that they could have sex with. Female employees would also be offered pay raises, promotions and protection from punishment in exchange for sex.

Pregnant workers legally protected from discrimination

New York women who become pregnant may want to continue working for most of their pregnancy. While a pregnant woman may be able to perform many of her usual job tasks, she may also need some workplace accommodations. Employers are legally obligated to provide pregnant workers with reasonable accommodations and protect pregnant workers from discrimination.

A pregnant woman is not required to inform her employer about her pregnancy until it impacts her ability to perform her job duties. When an employer knows that a worker is pregnant, the employer cannot punish the pregnant worker for becoming pregnant. An employer may ask to see a doctor's note about the pregnancy that explains what kinds of job modifications the pregnant worker will require.

Common reasons workers allege discrimination

According to the Equal Employment Opportunity Commission, retaliation claims are commonly filed against New York employers and others nationwide. In fiscal year 2016, there were 42,018 retaliation claims, which translated to 45.9 percent of all claims made during that period. Other claims that made the top 10 list for 2016 include those made based on sex, age or national origin.

Overall, the EEOC said that it resolved nearly 100,000 charges of employment discrimination in fiscal year 2016, and that it obtained more than $482 million in damages. Plaintiffs included employees who worked in the private sector as well as for local, state or federal government employers. In fiscal year 2016, EEOC legal representatives were able to resolve 139 lawsuits and filed another 86 discrimination cases. Of those lawsuits filed, 55 involved individuals while the other 31 involved multiple victims.