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New York Employment Law Blog

Challenging workplace discrimination and harassment

Despite widespread media coverage of the damaging effects of racism and sexism at work, New Yorkers continue to face harassment and discrimination on the job. Dealing with workplace discrimination can be emotionally devastating as well as damaging to a person's career. This may be exacerbated if an employee suffers retaliation after attempting to address the issue. In other cases, a worker's justified fear of retaliation may be so great that they are hesitant to speak up about the mistreatment at all. By understanding their rights, workers are better able to protect themselves and challenge unjust treatment at work.

Employees have a right to work free of discrimination based on race, sex, disability, religion, age or national origin. They also have a right to be free of retaliation for attempting to put a stop to workplace discrimination or other unacceptable practices like sexual harassment. There are many types of employment discrimination, all of which can hold someone back from success on the job. An individual may be unjustly fired, denied promotions or never hired at all. A severe or pervasive environment of sexual harassment can also fundamentally interfere with the workplace.

Racism and ageism are still common in American workplaces

Workers in New York and around the country are more likely to report witnessing or experiencing workplace discrimination than European workers according to the results of a recent survey. The online review company Glassdoor asked 1,100 American workers about discrimination in the workplace based on age, gender, race or sexual orientation, and they then compared their answers with the responses given by workers in the United Kingdom, Germany and France. More than six out of 10 of the Americans said that they had been exposed to this kind of discrimination in some way. The figures from British, French and German workers were 55%, 43% and 37% respectively.

More than 40% of the U.S. workers who participated in the Glassdoor survey told pollers that they had witnessed or experienced racist behavior while at work, but the results suggest that age-based discrimination is even more common in American workplaces. Ageism was the most common form of discrimination cited by American and British respondents. Gender-based discrimination was the most commonly experienced or witnessed type of workplace discrimination in Germany and France.

Discrimination still a major problem on the job

Many New York residents might expect that fewer people face discrimination on the job decades after civil rights laws were enacted. However, despite the rise in diversity consulting and corporate inclusion initiatives, large numbers of workers continue to report instances of discrimination, racism, sexism and anti-LGBT prejudice on the job. According to a study conducted by the online employment review site Glassdoor, around one-third of adults have either witnessed racial discrimination in the workplace or have been the victims themselves. When all forms of unlawful discrimination are taken into account, the numbers are even more staggering.

Around 5,000 workers from various countries were surveyed. Given the substantial number of large corporations that have a global presence, workers were surveyed in the United States, United Kingdom, France and Germany. All of these countries have laws banning discrimination on the basis of race or sex at work. On an international level, 31% of respondents said that they had seen or been a victim of race discrimination, while 25% said that they either witnessed or experienced discrimination based on sexual orientation. Even more said that they had witnessed or suffered from gender discrimination at work.

Workplace mistreatment harming female physicians

Female physicians in New York and throughout the country are facing high rates of burnout related to gender discrimination. Burnout is defined by the World Health Organization as fatigue, emotional stress and lost productivity caused by stress at work. According to a report published in the New England Journal of Medicine, burnout seems to impact female surgical residents. To obtain their data, researchers asked roughly 7,400 doctors to take a survey about their working conditions.

Roughly 40% of the respondents were women, and participants were asked to describe whether they had faced harassment or discrimination on the job. They were also asked to talk about their working hours and the impact that it had on the emotional health. The survey found that 42% of female surgical residents said they were burned out compared to 36% of male surgical residents.

Survey shows discrimination still problematic in US workplaces

Although there is now a heightened awareness regarding employment discrimination, sexual harassment and other forms of workplace violations, these issues continue to be problems in New York and across the nation. People who face difficulties at work due to race, gender or sexual orientation should be aware of how to combat discrimination.

A recent study indicates that challenges remain regarding workplace diversity. The study shows that 61% of United States workers who took part in the survey stated that they were subjected to or witnessed LGBTQ-, gender- or race-related discrimination. This was worse than the results for other nations, including United Kingdom (55%), France (43%) and Germany (37%).

Workplace discrimination cases unlikely to see trial

A number of cases dealing with the legality of firing workers based on their gender identities and sexual orientations have been heard by the Supreme Court. The difficulty of litigating claims may be more important to New York workers than the legality or illegality of certain actions. According to a study that looked at roughly 1,800 federal lawsuits from 1988 to 2003, only around 6% of civil rights actions make it to trial. The study included cases alleging race, disability and age discrimination, as well as sex discrimination.

Of the cases in the study that went to trial, only around 33% were won by the plaintiff. Some recent decisions by the Supreme Court have made it more difficult for the plaintiff to bring and win a civil rights action. This is despite there being strong evidence of sex discrimination in the working world generally. According to the most recent U.S. Census Bureau data, women make 80 cents for each dollar men make. University research indicates that men are more likely by 25% to get a raise when they ask.

Why sexual harassment investigations may be unsatisfactory

When employees in New York and throughout the country report sexual harassment in the workplace to their human resources department, they may be dissatisfied with the outcome. They might go weeks without hearing anything further, and nothing may happen to the perpetrator. They might feel they are facing retaliation. This is true even though awareness of sexual harassment at work is on the rise. According to the Equal Employment Opportunity Commission, sexual harassment claims went up more than 13% in 2018.

There are a number of reasons HR may fail to adequately address the issue. For example, one HR manager says that although she investigated a harassment claim, found it valid, and reported it to people higher up, they felt it would be easier to recruit lower-level employees than replace the higher-level employee who was reported. Ideally, the HR department would stay in regular communication with the employee, but this does not always happen. There should be a timeline for the investigation, and HR should demonstrate empathy toward the employee.

Salary threshold for exempt workers to rise

More workers in New York will be eligible for overtime payments under a Labor Department rule revision scheduled to go into effect on Jan. 1, 2020. Previously, the salary threshold required to consider a worker "exempt" from the provisions of the National Labor Relations Act was $23,660 annually. In addition, exempt workers must have a significant amount of autonomy or management authority in their positions. The rules finalized on Sept. 24, 2019, will make around 1.3 million more workers across the country eligible for overtime pay. The salary threshold will be raised to $35,568.

While this is a significant increase, it is substantially less than the change proposed under the Obama administration. The previous proposal would have raised the threshold to around $47,000 annually, making around 3 million additional workers eligible to receive overtime pay when they work over 40 hours each week. Widespread concern has been directed at companies that give management titles and responsibilities (including many workers at fast-food restaurants and retail stores) while paying low salaries and classifying these employees as exempt. In some cases, exempt management workers are required to work so many hours that they would make more receiving the federal minimum wage.

UPS agrees to settle pregnancy discrimination charge

The Pregnancy Discrimination Act prohibits employers in New York and around the country from discriminating against pregnant workers. On Sept. 17, the Equal Employment Opportunity Commission announced that United Parcel Service, Inc., has agreed to pay $2.25 million for violating the provisions of the 1978 law. EEOC investigators concluded that UPS failed to offer pregnant employees the opportunity to perform light duties that would have allowed them to continue working.

According to the EEOC, UPS has entered into a conciliation agreement to settle the matter. The money will be paid to workers who suffered financial losses between 2012 and 2014 because they were not offered accommodations required under federal law. Their compensation reflects the difference between the short-term disability payment they received and what they would have earned had they been able to continue working.

Types of relief available from the EEOC

Workers in New York or anywhere else who are mistreated by their employers may be entitled to due process. A complaint filed with the Equal Employment Opportunity Commission (EEOC) may help a person obtain relief. The EEOC may order that an individual is entitled to compensatory damages or reinstatement to his or her former position. In some cases, individuals may be given a financial award and reinstated to their most previous position within an organization.

Financial damages could help a person make up for lost wages or back pay related to discriminatory conduct on the part of an employer. People who are terminated and seeking back pay must make a good faith effort to find new employment to mitigate their losses. Companies may also be required to provide training or take other steps to correct whatever mistakes led to an individual being harassed or discriminated against. If an employee was bypassed for a job, the EEOC may require that this person be given the position or one similar to it.

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