We have a recent amendment in New York to our New York states human rights law which includes as a protected class the status of being a victim of domestic violence and so it is now illegal in the state of New York to discriminate against someone in the terms and conditions of employment based on his or her status as a victim of domestic violence. At Gould & Berg, LLP in White Plains, NY we have had a situation where someone has come to us and has indicated that she thought she was about to be hired, that she had gone through the processes of being hired but the prospective employer learned that she had made a complaint of domestic violence against her husband and after learning of that determined not to hire her and we would work with that individual to determine whether or not she may have a claim under law and in fact she may have a claim under the New York state law and not under the federal law.
One of the things we do in our office is to make sure employees who are employed in White Plains, NY and want to continue to be employed in dealing with issues in the work place. Also, we have had employees who have reported to us that their bosses are making derogatory comments about other employees to the employee talking to us and these comments are making them feel very uncomfortable and the question arises as to what the employee can do about that. We work with the employee to take a look at the environment and to take a look at what the employer policies and procedures are and to encourage that employee to follow those policies and procedures as it relates to discomfort at the work place and to attempt to resolve those issues internally because in order to have a lawsuit you have to pursue those issues internally if there is a process for it and you have to establish that these comments are severe and pervasive enough for a reason to be uncomfortable in that situation. So what we do is try to look at every part of the situation, look at the whole horizon and try to work with the employee to pursue an internal resolution with the employer. Sometimes, that doesn't work and then we have to look at whether in our judgment we think a court will agree that the discomfort, the comments are so severe and pervasive that they create a hostile work environment and if so we discuss with the client what the options are including filing a complaint in an administrative agency such as the New York State Division of Human Rights or the EEOC, the United states Equal Employment Opportunity Commission, or pursuing a claim in court.
We have women that come to our office frequently in White Plains, NY and they tell us that they are being treated differently from their male colleagues and that they are given what they perceive to be less desirable assignments and they wonder if there is anything that they can do. We ask many of questions to these employees; keep in mind that the employee is still employed and wants to continue to be employed and we want to know the size of the employer. We definitely want to know whether those other males have the same qualifications, whether the jobs that they are doing are the same jobs as the person who is speaking with us and we want to know whether those assignments are clearly less preferable or whether it’s just your perception that its less preferable. Also, we want to know if the employer has an avenue for making a complaint in this case of gender discrimination and if that employer has an avenue for making that complaint we are probably going to work with the employee initially to that avenue and see where it leads. While we are litigators in our office among the skills that we think we bring to the table are the ability to help the employee navigate the work place and to negotiate resolution of issues in the work place and to do that fall short of an actual lawsuit.
We’ve had clients come into our office in White Plains, New York who have received a severe diagnosis in many cases cancer, and they have had surgery, they are back to work and don’t require any further treatment now. The question arises as to whether that individual should inform the employer of the diagnosis. This can be a double edged sword, if the employer doesn’t know of the diagnosis going down the road, the employee may have very little protection under the Americans with disabilities act or under similar provisions of New York state law because if the employer doesn’t know he can’t discriminate against the employee on the basis of disability. If you tell the employer about your diagnosis, we don’t know what the result will be, we don’t know how the employer will react but what we can say is that the employer at that juncture is aware of the diagnosis and the fact that the employer is aware may give the employee some protection going forward should some adverse employment action occur.
We have had some people coming to our office in White Plains, New York who have had some pretty severe diagnosis and mainly cancer and these clients have to take time off for medical testing and medical treatment. At Gould & Berg in New York we have had situations where after the client tells the employer that he or she is going to have to go for treatments, the employee is given a negative performance evaluation and is concerned about consequences including termination and the question arises can I sue for discrimination? The answer to that question, depends on many factors and what we try to do rather than talking about a lawsuit initially is to work with the client and if the client wants to keep the job to work with the employer. Perhaps, educate the employer that certain accommodations are appropriate when a certain person is diagnosed with cancer. For example, taking some time out for testing and medical appointments. Again, in order to acquire the employer to give accommodation the employee has to be able to perform the essential functions over his or her job and so what we try to encourage other than a lawsuit is to work with the employer to come to an accommodation that’s reasonable under the circumstances. I might add that merely and I use that word advisedly, merely being the recipient of a negative performance evaluation even in cases where you haven’t received such a thing before is not necessarily a basis upon which to commence a lawsuit.