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Laws bar employment discrimination, but it’s up to you to enforce them

Retired New York City Police Officer Eric Josey was a panelist at the November program and he was the sole presenter at the trainings held upstate in May.

PHOTOS and STORY By SHERRY HALBROOK

It is against the law for your employer to discriminate against you, sexually harass you or retaliate against you for exercising your legal rights. It’s one thing to know that, but making the law work for you is another matter. It can require grit and determination. Most of all you need to understand the process.

That’s where PEF is stepping in by offering an Employment Discrimination training to its members and the union’s field representatives throughout the state. In May, the training was provided in Buffalo, Rochester, Syracuse and Albany. Trainings are also being planned for other regions, especially downstate.

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The union already offered a panel discussion of the subject in New York City November 7 of last year, but it was held at the PEF offices and it stimulated so much interest that PEF had to turn some members away.

Retired New York City Police Officer Eric Josey was a panelist at the November program and he was the sole presenter at the trainings held upstate in May. Before becoming a police officer, Josey said he worked for NYC Emergency Medical Services.

White officers’ hostility toward black officers at the NYPD became so intense it turned violent and Josey said he helped to form an organization called “100 Blacks in Law Enforcement Who Care,” to voice their concerns and work for a discrimination free workplace. Their stated goal was to serve the community and public service employees.

“It was a real rough period of time,” Josey told the PEF members and field staff at the Albany training held May 9 at PEF headquarters. “It was a very personal experience,” he said.

Josey said he learned so much from the charges he filed that he later went to work for a law firm specializing in employment discrimination cases. “I learned what survives in court and what does not.”

Most workplaces have signs alerting employees to their rights under the law, Josey said, but those signs do not tell you how to file a charge or process it. They also don’t tell you how to clearly determine if what you are experiencing merits a formal charge against your employer.

Since retiring from the police, Josey has formed a corporation, Public Service Premier Consulting Inc., which PEF has hired to provide these trainings. And what those signs at your workplace don’t tell you is exactly the focus of what Josey provides at the workshops.

Workshop handouts written by Josey feature:

  • Employment Discrimination Action List;
  • Filing deadlines for each law relating to employment discrimination; and
  • Key to a Successful Employment Discrimination Hearing or Lawsuit.

Josey’s instructions and comments to the workshop participants follow that outline, and he leaves time to take questions at the end.

First: Speak up

The action list of steps you should take if you feel you are experiencing unlawful discrimination or sexual harassment starts with speaking up immediately to put the person responsible on notice that you are offended and you object .

“If you are offended in the workplace, you have a duty to speak up,” Josey said. “If you don’t say something, you have accepted that behavior and that’s how the court will see it.”

Second: Get a witness

When you do confront the person who is offending you, try to get a co-worker, a PEF steward or someone else you trust to witness what you say and how the other person responds. Your witness does not need to say anything during the exchange, they just need to be prepared to possibly testify to or submit a written statement of what they saw and heard.

You should, he said, recognize that not everything that offends you may actually violate the law. If you believe it does violate the law and you decide to file charges, be prepared for swift and hard retaliation from your employer. Don’t do it unless you are prepared to withstand the likely onslaught that could include a wide range of retaliatory measures.

“This is not for the faint of heart. You can expect “Retaliation is going to be certain and swift,” he predicted. However retaliation is also barred by the law if your complaint was simply exercising your rights under the law, and you can charge your employer with retaliation if it happens.

“Even if your initial charge of discrimination fails, your retaliation charge probably won’t,” Josey said. “However, there cannot be any ambiguity. You’ve got to prove it, and you must file your charge within two months.”

It is crucially important for you to obtain and preserve evidence of the alleged unlawful behavior. That evidence could be written documents, emails, texts, social media posts, photos, video, voice recordings, witnesses’ sworn statements and many other possible things that help to prove your case.

Josey added, “Every state agency must have a diversity policy, cite it specifically in your complaint.”

He gave the example of an employee with a disability and who is alleging that the employer has failed to make reasonable accommodation for that disability. The employee will be expected to prove that he or she proposed an appropriate accommodation, and that the employer refused to make it.

Third: Send a letter

The third step you must take is to write a letter, on your department or agency letterhead, to your employer (commissioner or other chief officer) and copy the governor in which you state what happened that offended you and that you confronted the person responsible for it and that you told that person their action was unacceptable. The letter should be brief and factual – just one page.

This step constitutes the legal requirement of giving official notice to your employer and the letter should be sent by certified mail.

You should keep as evidence the official postal receipt showing that your letter was delivered, when it was delivered and who accepted receipt of it.

Fourth: File a complaint

The fourth step is to actually file charges with one of the following agencies. Both federal and state laws protect you from workplace discrimination and there are federal, state and local agencies to respond to charges of violation. These agencies are:

  • US Equal Employment Opportunity Commission (EEOC);
  • NYS Division of Human Rights (DOHR); and
  • NYC Commission on Human Rights (COHR).

Josey recommended that when you file charges against your employer – if it is a state agency – send a copy to the Governor’s Office of Employee Relations.

You have deadlines

It may take time for you to make up your mind to do this, but don’t wait too long because there are time limits on how long you may wait to charge a violation.

Josey provided the deadlines for filing charges under each of these laws. They are:

  • Title VII of the Civil Rights Act of 1964 that bans discrimination based on race, color, religion, sex, and national origin. The Pregnancy Discrimination Act of 1973, expands that to ban discrimination based on pregnancy, childbirth and related medical conditions. – You have 300 days to file a charge with the EEOC, and you have one year to file with eh NYSDOHR.
  • Age Discrimination in Employment Act (ADEA) of 1967, works similarly to Title VII, but the complainant must be at least 40 years old. – You have 300 days to file a charge with the EEOC, and you have one year to file with eh NYSDOHR.
  • Title I of the Americans with Disabilities Act (ADA) of 1990 also works similarly to Title VII, but it requires certain employers to provide reasonable accommodation of disabled employees and, in the case of businesses that serve the public, to provide access to all. – You have 300 days to file a charge with the EEOC, and you have one year to file with eh NYSDOHR.
  • Equal Pay Act prohibits wage discrimination between men and women who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions. — You have two years from receipt of the last discriminatory paycheck to sue your employer in the courts.
  • Section 1981 of the Civil Rights Act of 1866 specifically targets race discrimination. If you are discriminated against on the basis of your race, you may sue under both Section 1981 and Title VII. – You have four years to file in federal court. An EEOC complaint is not required.
  • Section 501 of the Rehabilitation Act of 1973 provides similar rights to federal employees to those the ADA provides to non-federal employees. — Federal employees have just 45 days to file. This law does not apply to non-federal employees.
  • Uniformed Services Employment and Re-employment Rights Act (USERRA) is one of two federal statutes that prohibit workplace discrimination against veterans. The other is the Vietnam Era Veterans’ Readjustment Assistance Act. – Although USERRA does not have a statute of limitations, the court may dismiss claims that it feels have been delayed excessively for no good reason. Therefore, it is best to act as soon as possible.
  • Family and Medical Leave Act (FMLA) requires most larger employers to provide employees with leave for specific situations, and it now includes special rules for military families. However, its anti-discrimination provisions are not enforceable against the federal government. — All others have up to two years to sue, or even three years is the employer is found to have been “willful” in its violation. Instead of suing in court, you may want to simply file a complaint with the Wage and Hour Division of the US Labor Department, in which case you have a ”reasonable” amount of time to file. Jose said you should interpret that to mean “file without delay.”
  • Title II of the Genetic Information Nondiscrimination Act (GINA) of 2008 provides similar protections to Title VII. – You have 300 days to file a charge with the EEOC, and you have one year to file with eh NYSDOHR.
  • (Federal) Executive Order 11246, which was originally signed in 1965, is not law, but has the effect of law. It prohibits discrimination by federal contractors against their employees based on sexual orientation and gender identity in addition to all of the usual bases for discrimination. – Individual employees may not sue, but they have 180 days to file a complaint with their employer.

Shifting burden of proof

Josey said that when you file a complaint of discrimination, you will need to prove that a qualified discriminatory act took place, that you are an employee of the employer you are accusing, and that you are in a class (race, religion, etc.) that’s protected by the law from such discrimination.

If you can prove those three things, then the burden of proof will shift to your employer, who must prove the action was taken for a non-discriminatory reason. The employer must show direct evidence, such as progressive discipline or contemporaneous reports to prove it had a good reason, not an intention to discriminate against you, for the adverse action that it took.

If the employer succeeds in proving its case, then you will need to demonstrate that the employer’s stated reason for the action, is really just a pretext for discrimination. You must show that the reason the employer gave is actually false, and you must prove that discrimination was the real reason.

Get specialized legal help

This burden of proof is not easy, and Josey said, “I strongly recommend you have an attorney do it for you if you decide to file your case in EEOC.” He cautioned, however, that you should hire a law firm that specializes in employment discrimination cases. Don’t wait to hire a lawyer until after your case has moved to the final stages and you appear to be losing it. Get that professional legal advice and representation early and before you make critical mistakes. While you will need to pay a legal retainer up front, your lawyer should charge a “contingency fee” for services, only if your case is successful.

If you take your case to court, you will need a letter from the EEOC stating that you have the right to sue.

You should expect your federal court case to take about four to six years to be resolved, and a negotiated settlement is a more likely outcome than a court decision.

Josey said PEF members are lucky to work in New York and to have a union. Many states, such as Florida, do not require employers to show they have a legitimate reason to fire you. Employees serve “at will” and can be fired for no given reason.

Last year, New York state decided to unify all affirmative action cases brought by its employees under the Governor’s Office of Employee Relations, instead of leaving them to the individual agencies.

Josey was skeptical that employees will get much satisfaction from GOER.

“They’re not going to make a finding (that the complaint is justified) on themselves,” he speculated. “You want to file with someone independent.”

First GOER, then DOHR

The state Division of Human Rights will still do its job and that would likely be a better place to file, Josey said. When you file with DOHR, you should check a box on the form that will automatically co-file your complaint with the EEOC.

The DOHR will investigate your complaint and notify your employer or person you are accusing. When it concludes its investigation, it will render a decision as to whether or not it finds “probable cause” that your complaint is justified. If the DOHR finds no probable cause or that it lacks jurisdiction in the matter, you have 60 days to file an appeal with the state Supreme Court.

If DOHR finds there is probable cause that illegal discrimination took place, your case will go before an administrative law judge at DOHR, who will hold a hearing in the matter. If the judge issues a “recommended order” stating that the charge of discrimination is true, your employer may be ordered to pay actual damages such as any lost back pay and compensation for lost employment benefits, “front pay” if reinstatement to your position is not appropriate, compensatory damages (for anguish, pain and suffering) equitable relief (such as reinstatement to employment, respect a “cease and desist” order, and adopt anti-discrimination policies), and pay your attorney’s fees (only applies in sexual harassment cases filed on or after January 19, 2009).

Josey said DOHR does not require you to be represented by an attorney at its hearings and it is “generally more efficient and a faster means of obtaining resolution to your complaint” than some of your other options.

“Don’t file with GOER and DOHR at the same time,” Josey advised. “Start with GOER, which has 180 days to complete its investigation, and then go to DOHR if you are not satisfied with the result at GOER.

The bottom line, he said, is “We are protected by the law, but it is up to all of us to enforce it. Know your (Time and Attendance) manual. Know your job. Know your contract. This is an added union benefit (beyond negotiated pay raises). It’s up to you to make this happen. The law is on your side.”

Table of Contents – June 2019

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