What Is Discrimination?
New York Discrimination attorney Alena Shautsova
Discrimination takes place when an employer and its supervisor(s) treat an employee differently and/or offensively because of the employee’s background: race, sex, sexual orientation, religion, disability, citizenship status, color, source of income, age, etc.
Discrimination may take various forms: failure to promote; denial of benefits that are afforded to other employees; worse job conditions; offensive comments; denial of training; failure to accommodate requests connected to religious observance or disability; harassment, etc.
Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e actually does not provide a definition of the term “discrimination.” It is so, because the term is being construed broadly and analysis of specific facts of each cases is required to determine if in fact an employer violated the law. An employer may have different reasons to treat an employee differently from others or in a way that an employee disagrees with. A thorough analysis helps to determine if there is a reason to believe that an unlawful discrimination occurred, or if an employer merely made a sound business decision.
In addition, not all forms of discrimination are actionable. For example, an employer decided to fire someone because she is wearing a red dress. If there is nothing more involved, an employer in the state of New York has a right to fire any employee at any time. However, let’s say that wearing a red dress was connected to the individual’s sexuality or maybe wearing a red dress was a part of the employee’s religious practice and an employer does not require uniform, then the fired employee might have an actionable cause of action. In New York, an employee may complain about the discrimination to the EEOC (Equal Employment Opportunity Commission), New York State Division of Human Rights, New York City Commission on Human Rights for those who work in five boroughs or can demonstrate sufficient connection to five boroughs. The size of an employer matters as well. For example, for the EEOC to have a jurisdiction over the complaint, an employer has to have at least 15 employees; for the State or City at least four.
How do you know if you are discriminated against?
Does your supervisor make comments relating to a protected ground (ex. regarding your color, race, origin, accent, culture, gender?); does your employer treats you worse than others in the company? (ex.: you get a lesser pay for the same work; you are not promoted or denied transfer or training; you are not receiving overtime, etc.) In the examples above, an employer will probably be successful in demonstrating that an employer discriminated against him/her if an employee did not invite and did not like the offensive comments and/or objected to them; or other employees at the same or similar situations are treated differently (for example, an African American employee is denied overtime, but for a White employee overtime job is always available, and both have the same experience, seniority, etc.).
The examples above are not exclusive, and each case and situation has to be fully analyzed before concluding if an employer violated the law.