Lawyer Monthly Magazine - February 2019 Edition

sexual insults, comments about an individual’s body, and rumors (to name just a few examples). In other words, the harassment need not be quid pro quo to be actionable. Often, a harasser may believe their conduct is innocent or friendly, but it may in fact be distressing and offensive. Thus, an employee may have a claim regardless of the harasser’s subjective intent or belief. Finally, gender discrimination may not include any sexual harassment but may be offensive or degrading comments made against an employee because of their gender. Gender discrimination may also involve disparate treatment. For instance, if you are a woman and you find out that male co-workers with the same level of experience are paid more, you may want to speak to a lawyer to find out if you have a case for gender discrimination. What would you advise be their first point of action if they believe they are being discriminated against? Every situation is different and there is no blanket advice on how to handle such a situation. It is always important to document what is happening, which may include just keeping personal notes with dates, times, the names of witnesses, and any comments The standard under the New York City Human Rights Law is more forgiving and applies to employers with four or more employees. Under the City Human Rights Law, the harassment need not be severe or pervasive. Rather, the burden is on the employer to show that the conduct at issue was no more than a petty slight or trivial inconvenience. Title VII and the New York City Human Rights Laws also differ in terms of the amount and types of damages that can be obtained. Gender discrimination comes in several forms. When most people think of gender discrimination, the first thing that usually comes to mind is sexual harassment, and very obvious quid pro quo sexual harassment, which means a superior has indicated that they will provide something to the employee in return for the employee submitting to a sexual demand. Quid pro quo sexual harassment is just another way in which an employer, in violation of Title VII, makes an employee’s sex relevant to an employment decision. To be sure, this constitutes sexual harassment and gender discrimination. However, sexual harassment may also include comments of a sexual nature, touching, Some women may not be fully sure to whether they are being discriminated against in their workplace or not. Can you please share what accounts towards discrimination? First, it is important to understand that people of all genders and sexual orientations are subjected to gender discrimination and sexual harassment in the workplace. Sexual harassment is a form of gender discrimination. The #metoo movement should be seen – not as a “women- versus-men” movement – but as a movement that has empowered all survivors of sexual assault and sexual harassment, no matter their gender or sexual orientation. It is a movement that includes trans, gender non-confirming, and gender non-binary survivors. It is important to knowyour rights as an employee. New York State is, generally-speaking, an “at will” employment state, which means you can be terminated from your job for any non-discriminatory reason. However, there are federal, state, and city laws in place which do protect workers from discrimination and harassment. Additionally, an employer cannot treat its employees differently on the basis of their gender with regard to their compensation, benefits, and terms of employment. It is important to consult with a lawyer if you believe you are being subjected to discrimination or harassment, because there are strict time limitations that you must comply with if you intend to file a case. The law on this topic can be complicated and it is important to seek out a skilled and experienced attorney who knows how to litigate these cases. Title VII and the New York City Human Rights laws create different standards which must be met by a Plaintiff in order to prevail on a gender discrimination claim. Under Title VII, the Plaintiff must demonstrate that they were subjected to a hostile work environment. To prevail on a hostile work environment claim pursuant to Title VII, a plaintiff must demonstrate that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of their work environment. This can be a difficult standard to meet, and it only applies to employers with 15 or more employees. EMPLOYMENT LAW #metoo: What Is Sexual Discrimination and How Do the Claims Work? We hear from Lawyer Monthly’s trusted employment lawyers at Phillips & Associates, where we discuss sexual harassment and gender discrimination in the workplace. What accounts towards discrimination and what are your rights? Jessica Massimi tells all. FEB 2019 38 Expert Insight www. lawyer-monthly .com