Author Archive for Leigh Ebrom

Employment Discrimination Based on Perceived Status

Sometimes, an employer makes adverse employment decisions based on perceived membership in a protected class. For example, a job applicant may be rejected because he is believed to be Muslim, even if he is not. Or, an employee with an altered gait may be denied a promotion because of her perceived need for job accommodation. These adverse employment actions may be illegal.

Some federal and state laws directly address perceived status. For example:

  • The Americans with Disabilities Act (ADA) prohibits discrimination due to perceived disability.
  • California law protects workers against discrimination based on perceived race, religion, color, national origin, ancestry, disability, genetic information, marital status, sex, age, sexual orientation, or military/veteran status.
  • New York State’s Human Rights Law bans discrimination based on perceived sexual orientation.
  • New York City’s Human Rights Law goes even further and prohibits perceived discrimination based on age, race, creed, color, national origin, gender, disability, marital and partnership status, caregiver status, sexual orientation, or citizenship.

Unfortunately, many federal and state laws do not directly address discrimination based on perceived status. This has led to confusion and inconsistent legal interpretations.

Perceived Disability and the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) specifically prohibits discrimination against people with perceived disabilities. The statute recognizes that employers sometimes assume that an individual with a physical or mental disability requires unnecessary accommodations. The ADA states: Discrimination

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

If you have been the victim of discrimination due to a perceived disability, you should contact the EEOC or an employment lawyer.

Is Employment Discrimination Illegal Based on Other Perceived Statuses Illegal?

Unlike the ADA, other federal laws do not specifically prohibit discrimination based on perceived gender, race, age, national identity, or religion. Instead, the Civil Rights Act prohibits discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” The Age Discrimination in Employment Act (ADEA) similarly bans discrimination because of an individual’s age. There is absolutely no discussion of perceived status in these laws.

When a statute or law fails to clearly address an issue or protection, individual judges and courts are left to fill the gap. Typically, judges evaluate the language of the statute, legislative intent, and other factors to decide how the law should be applied. Unfortunately, this case-by-case and jurisdiction-by-jurisdiction approach may lead to inconsistency.

In cases of discrimination due to perceived status, different federal courts have arrived at different decisions. For example:

While the EEOC’s Compliance Manual prohibits discrimination based on perceived membership in a protected class, courts have not always deferred to this opinion.

It may seem counterintuitive (and against public policy) to allow incorrect categorization of an employee as a defense. Unfortunately, the Civil Rights Act and the ADEA’s lack of clarity have led to this inconsistent application of the law.

Pursuing a discrimination claim against an employer is complicated because laws vary depending on where and when you file your claim. In a perceived status case, your rights may vary dramatically based on your location.

Do I Need an Attorney?

An employment lawyer will help you choose the correct law and help with the filing deadlines specific to your claim. You should also consider legal representation if you have been offered a severance package or waiver.

What We Should Learn From the Fox News Sexual Harassment Scandal

“Although this was a difficult step to take, I had to stand up for myself and speak out for all women and the next generation of women in the workplace.”

-Gretchen Carlson, New York Times Interview (7/12/2016)

On July 6, 2016, newscaster Gretchen Carlson filed a lawsuit, alleging that she had been a victim of sexual harassment while working for Fox News. Ms. Carlson’s complaint asserts that Roger Ailes, the network’s chief, had made sexual advances and threatened adverse employment actions if she refused. She also claims that a 2013 pay cut and demotion were linked to rejected sexual advances.

Soon after Ms. Carlson’s filing, approximately another dozen women claimed they had been victims of Mr. Ailes’ sexual harassment. Mr. Ailes strongly denies any wrongdoing.

Subsequently, Mr. Ailes stepped down from his position at Fox News. (The network has indicated that Mr. Ailes’ departure is not related to the sexual harassment claims.) However, both he and Fox News may now face sexual harassment and employment discrimination claims from female employees. The related litigation may be extended, considering the number of potential plaintiffs.

Unfortunately, powerful individuals can use their reputation, influence, and celebrity to silence victims of sexual harassment. While we do not know all of the facts in the Fox News cases, there are some important lessons to be learned from the allegations.

Sexual Harassment Can Happen Anywhere and To Anyone

There are two kinds of sexual harassment:

  • Quid pro quo harassment, which involves offers of professional advancement (or threats of demotion or termination) in exchange for sexual favors, and
  • Hostile work environment, where there is pervasive sexual hostility or misogyny in the workplace. Roger Ailes

Both forms of harassment are illegal under state and federal law. The claims against Mr. Ailes primarily are of quid pro quo harassment.

While women are the most frequent victims of sexual harassment, men also may have valid claims. The perpetrators of sexual harassment can be either a man or woman—and same-sex harassment also occurs. Sexual harassment is present at a wide variety of workplaces—from factory floors to executive offices. As Ms. Carlson’s claims demonstrate, even high profile employees may become victims.

Understand the Statute of Limitations in Sexual Harassment Claims

Before you file a federal lawsuit, you must first file an EEOC complaint. EEOC complaints must be filed within 180 or 300 days of the discrimination, depending on the circumstances. The EEOC will investigate your claims and may issue a “right to sue” letter. You must file a federal lawsuit within 90 days of receiving this letter.

You may also have claims under state law. Statutes of limitations vary from state-to-state. You may have to file a complaint with your state’s anti-discrimination agency before filing your lawsuit.

Statutes of limitations are unforgiving. If you do not file a sexual harassment lawsuit within the correct deadlines, your claim will be dismissed. Because sexual harassment lawsuits involve strict filing procedures and deadlines, it may be in your best interest to speak with an experienced discrimination lawyer early on.

What Can Women Do to Get Their Stories Out Sooner?

It is understandable why many women stay quiet about sexual harassment. Complaints may result in workplace tension, retaliation, and emotional distress. Some victims decide simply to quit their jobs and move on.

However, it is important that women (and male victims) enforce their rights. We need to actively combat the stigma surrounding reporting harassment. And, victims of sexual harassment may be entitled to a variety of damages, including compensation for lost wages, pain and suffering, and even job reinstatement.

Be Brave

Gender bias and harassment are a part of many workplaces—the increase in caregiver discrimination and the EEOC’s steady volume of gender-based claims are evidence of this.  Filing a sexual harassment complaint can be emotionally difficult. You may face retaliation and public scrutiny. Unfortunately, silence will not fix the problem.

It may be tempting to ignore harassment—or laugh it off as friendly horseplay. However, sexual harassment is illegal and harmful. It can permeate a workplace and result in poor work performance, low employee retention, and homogeneity. (Studies have shown that diverse workplaces are more productive and agile.)

As a culture, we need to combat and discourage sexual harassment and other forms of discrimination. A lawsuit can force a business to evaluate and change its practices and workplace policies.

Document the Harassment and Subsequent Retaliation

In order to win a sexual harassment claim, you need evidence. Keep copies of any emails, text messages, or other harassing communications. You also should keep copies of any complaints you made to Human Resources (as well as HR’s responses). This documentation will help support your claim and give you a better chance of winning.

Seek Counseling and Emotional Support

Again, sexual harassment litigation can be difficult. Because many claims are “he said, she said,” your credibility may be scrutinized. You may face retaliation or hostility at work. Nonetheless, it is important that we take a stand against sexual harassment and discrimination. By reporting harassment, you may protect other potential victims, change workplace policy, and recover damages.

A counselor or support group may provide the emotional help you need during a harassment investigation and lawsuit. Consider career or vocational counseling to help rebuild your resume and restore confidence.

Hire a Sexual Harassment Lawyer

A sexual harassment lawyer can also provide important support and guidance. A lawyer can assure that you meet filing deadlines, prepare you for an investigation and lawsuit, and help you change your workplace’s culture and behaviors. Additionally, legal representation can help you secure fair compensation for your damages.