APPENDIX D

WORKPLACE DISCRIMINATION RESOURCE GUIDE

I conducted an interview with Tom Wilinsky, an attorney with more than 25 years’ experience in employment law in New York and New Jersey, to understand workplace discrimination and what you can do if you experience discrimination in your workplace.

1.  What is the legal definition of discrimination?

Discrimination is treating someone in a way that’s different from other people because that person is included in a class that the law considers “protected,” meaning historically marginalized, or entitled to equal treatment but often treated differently based on an improper characteristic.

The protected classes are the following:

•  Gender

•  Race/color

•  Ethnicity

•  Religion

•  Sexuality in some states

•  Pregnancy

•  Disability

•  Age

Discrimination based on your looks, the sound of your voice, your personality, or your economic class does not count. It must fall into one of the above categories.

2.  What is an example of different treatment?

For example, we’re firing you because you’re X. We’re promoting someone else because he’s white and male, but we’re not promoting you because you’re nonwhite and you’re female. We’re not hiring you because you’re not the race or ethnicity we like.

3.  Is sexual harassment a form of discrimination?

Yes. For example, “I will not promote you unless you engage in sexual activities with me.”

This is sexual harassment, a form of discrimination, which is illegal.

4.  Are there any other forms of discrimination?

Yes. Discrimination can also occur in the form of different wages, bonuses, or any other of the privileges that you receive that you can quantify at work, like insurance coverage or use of particular services, because you fall into one of the protected categories.

It can also be more subtle. For example, a female litigation attorney was on an all-male litigation team. In the litigation strategy planning meeting, she shared a thought about their approach and the man leading the meeting turned to another man at the meeting and said, “Did you see the game last night?” There was no response, nor acknowledgment of her statement. She was essentially cut out of the meeting. That is discriminatory. It’s not necessarily enough for a legal claim for compensation, but it’s one of the typical ways that discrimination occurs in the workplace.

5.  What is a hostile workplace environment? How does this relate to workplace discrimination?

A hostile workplace environment is not just an environment where you are treated poorly. A mean boss or vicious colleague doesn’t count. It’s an environment that is so infected with discriminatory acts that it makes it impossible for you to do your job. For example, if you’re a woman in a largely male workplace and there are constant jokes about sex or there is sexually explicit material throughout the office, you may find it impossible to do your job. Because this workplace is so infested with offensive sex talk and material to the point at which you can’t get your work done, it’s considered a hostile work environment.

6.  What are my options if I am being discriminated in my workplace?

a.  Keep a record of the behavior.

I always tell a client to write down the specific behavior, the date, and who is doing it. After a couple of times, you may notice a trend or pattern and may want to do something about it.

b.  Talk to a trusted colleague, mentor, or manager in your workplace.

If you have a good relationship with someone in the workplace, it’s usually helpful to get a second opinion on the suspected discrimination, particularly if that person is in the same class as you are. For example, if you’re a woman in a largely male workplace and you have a mentor who’s a woman, it’s often helpful to talk to her about the behavior. This is a casual, less risky means to evaluate the behavior.

Be aware that if you do talk to a colleague, mentor, or manager about suspected discrimination, your conversation may get around the office in an uncontrolled way. It is also hard to know whether your colleague will handle it in a way that benefits you.

c.  Contact your human resources department.

Human resources departments often have policies and procedures in place to resolve reports of discrimination. There is a risk that your conversation will not be kept confidential.

Additionally, I have had clients who pursued this option and were subsequently treated as a problem employee and the complaint was not resolved. If the evidence is clear and human resources either does nothing and continues to allow the employee to be subject to discrimination or makes it worse, than HR’s actions are illegal. If the situation is less clear, such as where the evidence isn’t there, but the employee is certain they have been victimized, HR’s abilities may be limited and it’s not necessarily illegal.

Some employers have systems set up for mediation or group resolution. For example, human resources may agree to moderate a conversation between you and someone who has acted in a discriminatory manner in an attempt to find a resolution that is agreeable to both parties. Such a conversation may lead to sensitivity training for the offending person and/or reassignment for the victim.

d.  Contact your company’s employee assistance program.

An employee assistance program (EAP) is a voluntary, work-based program that offers free and confidential assessments, short-term counseling, referrals, and follow-up services to employees who have personal and/or work-related problems. There is no charge to an employee for use of this service, as it is paid for by the employer.

This service is confidential.

e.  Contact the Equal Employment Opportunity Commission.

The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency that handles employment discrimination. Most states and cities also have an agency that functions like the EEOC, and the state and city agencies work in tandem with the federal agency.

The EEOC provides information and has procedures for reporting a discrimination claim. You have three options for reporting a discrimination claim: online, in person, or via telephone. Reporting your claim to the EEOC is a significant step because you are starting a legal process. When you go to the EEOC with a claim, the agency will contact the employer, and the employer has the right to say that there has been no discrimination for various reasons.

If you report a claim to the EEOC or a state or local agency, it will take your formal complaint and commence an investigation. This will be either an extensive or a minor investigation. Based on the findings of the investigation, one of the following will happen:

•  The EEOC will tell you that you have probable cause to file a claim for discrimination and that it will not handle it. Note: This is the most frequent response from the EEOC, and it is called a right-to-sue letter. You take the letter and go to a federal or state court and pursue the claim yourself. You would incur the legal fees if you chose this option.

•  The EEOC will tell you that it is going to start a formal investigation. If this happens, the EEOC believes your claim sufficiently enough to conduct an investigation of your employer.

•  The EEOC will tell you that this does not appear to be discrimination and that it will not pursue it or give you a right-to-sue letter. This does not mean you cannot start a lawsuit, but it does mean that the EEOC or state agency did not find sufficient evidence of discrimination to be confident in your claim.

f.  Contact an employment attorney.

There are employment attorneys in every state who advertise and will often offer free consultations. The employment attorneys may be of varying quality, but you have nothing to lose, and if you consult an attorney, it’s confidential. The attorney is obliged to maintain the attorney-client privilege that ensures your confidentiality.

One option you have with an attorney is for the attorney to send a letter, threatening to sue and laying out the claims to your employer. If successful, you can then enter into a confidential agreement with your employer and you are not in a public database. If you do decide to leave your employer, your attorney can help you agree on a script for your reference from your employer. The standard reference statement is “We employed X in the following position(s) and we confirm that X worked from this date to that date.”

g.  Go directly to a state court and sue for discrimination.

In many states, you can go straight to a state court and sue for discrimination without going to the EEOC or the state or local version of the EEOC. If you choose this option, you are immediately commencing a lawsuit against your employer. This is an adversarial process, and if you’re still in the workplace, that can be very uncomfortable. Additionally, the lawsuit is now public record. It states that you made a discrimination claim against your employer and usually contains the employer’s denial. If employers do a background check prior to employment, this will show up in the report.

Alternatively, many employers have employees sign a contract agreeing to arbitrate any claims they have, including discrimination claims. This would prevent you from going to court but would not prevent you from bringing a claim, with or without an attorney, in an arbitration forum.

7.  Are there any other options or advice you give people when they are experiencing discrimination, but they are in a position where they need the job to care for their family or they want to stay with their employer?

I always tell people, “Your best revenge is your next job.” Keep your eyes and ears open for other positions within your company. Is there an opportunity within another group or with another manager? Sometimes it is just one person who has a grudge or who is engaging in discriminatory behavior. For example, I had a client who was a salesperson who placed cosmetics in department stores. A new manager was hired for her team, and he said, “I don’t like ugly people. I don’t like fat people. I don’t like older people. I want only young, beautiful people manning these cosmetic counters.” My client was concerned that her new boss was setting her and her colleagues up to be fired. Since she had been at the company longer than her boss, she was able to go to someone else who worked at the company in a different department and say, “I’m concerned that this is going on.” She was offered a position in another department, and her boss was eventually fired.

Build relationships and network within your industry so you can find a new job outside of your company. If you do decide to leave your employer, you can decide once you have left if you want to sue your previous employer for discrimination.