Lawyer Monthly Magazine - February 2019 Edition

About Jessica Massimi Jessica Massimi is a civil rights attorney at Phillips & Associates, an employment discrimination law firm in New York City. At Phillips & Associates, we handle all types of employment discrimination, including discrimination related to pregnancy, gender, sexual orientation, disability, national original, and age. In addition to employment discrimination matters, I also litigate police misconduct and civil rights cases on behalf of individuals against the New York City Police Department. Contact Jessica Massimi Civil Rights Attorney www.newyorkcitydiscrimina- tionlawyer.com or touching that took place. It may also be advisable to tell a friend or family member. Victims of harassment or discrimination should not assume that their employer is aware of what they are being subjected to. In many circumstances, it may be advisable for the victim of the discrimination or harassment to complain in writing to the human resources department, and then continue to complain if the conduct continues. This can be a scary idea for many employees who are facing harassment, because they fear retaliation which can include termination. However, just as the federal, state, and city laws prohibit discrimination, they also prohibit retaliation for complaining of discrimination. For this reason, if an employee is going to complain about discrimination to human resources or the appropriate authority at work, it is important to do so in writing. Once an employee makes a complaint of harassment or discrimination, the employer has an obligation to investigate the complaint and they may be held liable for not properly investigating or not properly taking steps to fix the problem. An employer may also be liable for any harassment or discrimination if it is aware, or should have been aware, of prior harassment or discrimination and does not institute proper training in order to ensure that it does not happen again. Should the potential victim collect evidence? Or is it best for them to wait until legal action has been made? The target of the harassment or discrimination should always maintain any evidence in their possession, such as text messages or emails, and they should be sure not to destroy any evidence. Once the employee obtains an attorney, that attorney will generally send a letter to the employer notifying them that they have been retained and warning them to preserve evidence related to the claim of discrimination or harassment. When filing a claim, does everything else carry on as normal, or should the employee or accused remain out of the workplace? i.e., what is the best process during legal proceedings? Again, every situation is different. In many instances, the employee has been terminated as part of the discriminatory action before they seek out a lawyer. If an employee is still employed by the harasser, a lawsuit can still be filed. Under these circumstances, there a few different courses of action that can be taken, such as remaining at the job while the case is litigated, or negotiating a leave of absence during the pendency of the litigation. Often, in exchange for a monetary settlement, the employer will ask for the employee’s resignation as part of the settlement terms. What should employees expect after the accusation has been filed? How long does it usually take to come to an agreement? It can take weeks or years, and sometimes there is a trial instead of a settlement. Many attorneys will try to settle a case on behalf of a client who has been discriminated against, by sending a claim letter and by attempting to engage in a pre-suit discussion. If pre- suit settlement is not possible, the attorney may either file the case in state court or, if the case is going to be filed in federal court, file a charge of discrimination with the Equal Employment Opportunity Commission to preserve the client’s federal claims. The EEOC then issues a “Right to Sue” letter and the case can be filed in federal court. If the case is filed in federal court, it may take six months or more to complete discovery and get a trial date. So, the process can take time, and it often depends on several factors, such as the type of employer and what evidence exists. The process is complicated and time consuming, which is why it is advisable to hire a lawyer. LM FEB 2019 39 Expert Insight www. lawyer-monthly .com