“Employment Harassment” Employment harassment, sometimes called a hostile workplace, covers more than sex harassment. Yelling at employees, by itself, is not employment harassment. Yelling only at one or more protected group(s) of employees probably constitutes employment harassment. Targeting any one or more groups of protected employees is illegal unless for a legitimate, non-discriminatory reason. Habitual tardiness usually qualifies. If members of the group of a race, of a color, of a national origin, of a religion, of a gender, or “because of sex” or sexual preferences are late for work they could all potentially be fired. However, if an employee was able to prove, often with circumstantial evidence, that tardiness was not the real reason they lost their job but because of their status of membership within a protected group or groups of employees, that would constitute unlawful discrimination. Protection now includes gay employees as a group since our own United States Second Circuit Court of Appeals recognize such group as protected “because of sex.” Employment harassment can occur with a nice supervisor just as it can with a nasty one. Your personal feelings are not always the factor that determines whether your workplace is illegally hostile. Laws do not protect all employees from bad bosses. They do not even protect some employees from bad bosses. Laws protect all employees from workplaces which target one or more groups of employees because those employees belong to one or more protected groups. Again, if you are targeted for a legitimate, non-discriminatory reason, even if you belong to one or more protected groups, such action would not be targeting nor illegal. Most employees have a duty to report employment harassment. Employee handbooks usually include procedures for doing so. Employers have a duty to investigate employment harassment. Human resources departments usually do that. Not all are created equal. Some have better trained staff and procedures. Employees owe a duty of loyalty to their employers. Most have to honestly cooperate. Consulting with an employment harassment attorney is usually advisable before doing so. If your employer has implemented a zero tolerance for employment harassment make sure it follows that policy. Everyone has seen the #MeToo postings by now. Consult an employment harassment attorney before you post. Even if you think your postings may be “private” on Facebook they may be discoverable. Even if you think that your employer would not risk the bad publicity of forcing you to sue them, they might. An employment harassment lawyer will prepare every case for litigation from day one. If you posted MeToo on social media it will most likely be discovered. The sooner we know the better. Call many employment harassment attorneys. Ask them what they need from you. Employment harassment lawyers will need you to be an open book with them. They may want access to all of your social media accounts. That’s right. All of your passwords. Harassment lawyers may even do a background investigation of you. Google yourself. What pops up under your name? Employment lawyers will need to know all of your experience with the legal system. An employment attorney who does not ask you all of these questions up front may not be the one you want to hire. What policies and procedures does your employer have for reporting employment harassment. Did you follow the reporting polices and procedures? Was there a confidential hotline for human resources or someone else you should call and did you do so? If not was it because the employment harasser was your boss or possibly because you were never provided with the policy until you searched for it on line? Some companies no longer provide training regarding employment harassment. Some outsourced all human resources functions. Are you concerned because you are lesbian, gay, bisexual or transgender and not sure whether employment harassment covers you? Advances, conduct or communication “because of sex” is illegal in all workplaces. Foul language, rude behavior, and uncivil conduct is not necessarily prohibited at work. Foul language which includes reference to gender or sex or furthers the stereotypes of gender or sex is prohibited. The specific facts of each workplace determine whether employment harassment occurred. And it does not matter whether the industry you work in has traditionally appeared to be sexist or gender discriminatory. Corporate culture or the history of an industry are no excuse for conduct or communication which affect employees “because of sex.” Even independent contractors who your employer welcomes onto its business premises must refrain from “because of sex” behavior or comments and your employer has a duty to take action to protect its employees. Here are more reasons why clients hire employment harassment attorneys: Most employees don’t know what to say or what not to say. That’s OK. If your potential lawyer has not asked you many of the questions you read here they may feel the same way. Some lawyers are lawsuit happy. There is a difference between preparing a case for a lawsuit from the beginning versus filing a lawsuit as soon as possible. You have a million dollar claim. They exist but they also require an enormous amount of preparation in the beginning. Are you willing to help because you will be doing much more work than you may think if a lawsuit is necessary. You need someone to draft a demand letter and are certain the case will settle. Have you discussed ranges of settlement amounts with your employment harassment lawyer and realistic expectations and time frames? If you have not disclosed all the potential negatives about your entire life history up front with your employment lawyer the employer will disclose at least some of those negatives during settlement negotiations and you may wish you had done so earlier because settlement amounts vary tremendously sometimes on just one or two facts. Are you medically treating for emotional distress and aware of how that affects valuation of your claim? Are you willing to make this claim or lawsuit a major part of your life for a year, two, or maybe a decade? If not, what is your goal? Preparing for an employment harassment lawsuit should be your lawyer’s top priority. Unless you risk missing a filing deadline or your facts shock our consciences filing a lawsuit quickly should be carefully evaluated. If there is something you should have disclosed to your employment lawyer that you failed to mention, do it before making a public record with a complaint. Once you file a complaint, it’s out there for anyone to discover forever. And the one fact you failed to mention could impact the value of your claim. Count on defense counsel discovering it before mediation. Violating your duty of full disclosure to your employment lawyer could result in settlement value close to nuisance. And it will be your name associated with that complaint forever. This scenario is not as uncommon as you might think. Tell your employment harassment attorney everything. Even if it has no bearing on your claim but you think it might. Quick filing of a lawsuit, unless you have no choice, could easily result in nowhere near the money you expected or in years of stressful litigation and appeals. A better option is to fully prepare your claim for a detailed demand which can easily take a week or two of full time attention to nothing but your case. This shows the employer that you have all your ducks in a row and will go the distance, if needed, since an artfully drafted demand package may lay out some key evidence which is unstoppable. It’s hard to deny that a text message or an e-mail did not come from an account associated with a person’s name. With pilot protocol disclosures hiding the ball sometimes hurts parties more than it helps them regardless of what manipulators may tell you. If you need professional mental health counseling to discuss how employment harassment affected you emotionally get it as soon as possible. Sometimes just talking in confidence with a professional is very helpful. Don’t feel ashamed or embarrassed. Everyone needs or should seek out professionals during rough patches. No matter whether you are straight, gay, bi-sexual, trans, questioning or variations thereon your gender or sex should be irrelevant to your job duties and irrelevant to the terms and conditions of your job. Even before the #MeToo movement the United States Supreme Court told us that workplace laws are not a civility code. Yes your boss might be able to treat you badly. Maybe even curse at you if everyone is treated similarly. But no matter how bad the workplace is, no employer or workplace can require sexual favors, hooking up, or embarrassing sex or gender comments or actions which make you feel like your sexuality is important for keeping your job or getting promoted. The MeToo movement has confirmed that sex and gender based discrimination, even for gay employees, is not permitted. That violates the “because of sex” prohibition under Title VII of the Civil Rights Act of 1964. A New York employment lawyer can quickly determine whether a potential client was or continues to be subjected to a hostile workplace. How does the EEOC define hostile workplaces? Employment harassment has to be severe or pervasive. Most of us know severe when we see or hear it. Defining pervasive is often much harder. Vanderbilt Law School defines pervasive harassment Hostile workplace allegations must be addressed promptly. This is regardless of whether you are an employee or an employer. Most employers investigate hostile workplace, employment harassment, allegations promptly. Most of the time an employee should report the allegation to human resources or a designated department or person. Employees should consult an employment harassment attorney regardless of any obligation to participate in your employer’s investigation. Hostile workplace allegations are usually outside the scope of most union collective bargaining agreements. Some employees decide to record conversations. Unless your employer’s policy specifically prohibits a particular recording New York State law permits one party (i.e. you) to consent to record your conversation with another person. Employers usually preserve their own right to record and usually notice persons in advance that they will be doing so. Filing a sworn EEOC Form 5 Charge or a sworn New York State Human Rights Division Complaint usually occur after an employee has complained to human resources or a designated department or person and the matter was not resolved. Legal counsel should be consulted before proceeding to this step. In some scenarios either side could potentially recover attorney’s fees from the other. Litigation is usually the last resort. What does a NORTS letter look like? Call V. Jonas Urba Law at (914) 366-7366 for a confidential consultation to determine whether your workplace was or is hostile.