Litigating Discrimination Issues

New York Job Discrimination Lawyer

 

New York employment attorney Steven Mitchell Sack has represented individuals alleging unfair employee discrimination for approximately three decades. He has negotiated, mediated, and litigated many claims in this area, including:

• Pregnancy discrimination

• Disability discrimination and reasonable accommodation for clients with disabilities

• Family, medical, and other leaves of absence

• Age discrimination claims and early retirement packages

• Sexual harassment and other forms of on-the-job harassment

• Retaliation claims

• Whistleblowing and other areas of protected conduct

 

Strategies to Enforce Your Rights

Recognizing discrimination is only part of the battle; you must take the proper steps to enforce your rights. The law entitles victims of discrimination to recover a variety of damages. These may include reinstatement or job hiring; receiving wage adjustments, back pay, and double back pay; receiving promotions and future pay; recovering legal fees, filing costs, and fees paid for expert witnesses; receiving punitive damages and compensatory damages up to $300,000 depending on the size of the employer; and other damages depending on the facts of your case. Even if you work in a right-to-work state and can be fired easily, it is illegal to be fired because you belong to a protected class, such as being a woman, over forty, a minority, handicapped, or a religious believer.

In seeking to enforce your rights, you will not be alone. More than 100,000 formal complaints are filed each year with the EEOC, and thousands of private discrimination lawsuits are tried in court annually. This does not include the many hundreds of thousands of complaints brought to state and local agencies and other institutions.

If you believe you have been victimized by employment discrimination, consider filing a charge with the Equal Employment Opportunity Commission and/or your state agency. The EEOC is a federal agency responsible for investigating claims of discrimination under various federal laws, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Age Discrimination in Employment Act. The headquarters of the EEOC are in Washington, D.C., and there are numerous regional and local offices throughout the United States.

In some states, filing a charge with either the EEOC or a state agency will be treated as a filing with both. Although some state agencies permit a longer period (e.g., up to 300 days depending on state law), to be timely youmust file a charge with the EEOC within 180 days of the date the last incident occurred. You should also know that the EEOC is authorized to contractwith state agencies to handle some of its cases, so it is possible your case will automatically be turned over to a state agency.

STRATEGY: Before deciding whether to file with the EEOC or a state agency, speak to an employment attorney for advice, because some state discrimination statutes provide greater protection and some state agencies have more powers than the EEOC. For example, although the EEOC cannot investigate charges of discrimination with companies that have fewer than 15 full-time employees, most state agencies can.

You must also first decide whether to commence a private discrimination lawsuit in state court or file a charge with theEEOCor a state agency. The advantage of commencing a private lawsuit may be the more liberal statute of limitations if you are concerned that the time to file may soon expire. It is also possible to recover more damages under some state laws. You may also be able to receive a judgment quicker, since the EEOC is understaffed. Cases often take years to be decided, and obtaining a favorable decision (i.e., a letter stating your case has probable cause) does not automatically mean you will receive an award of any size, much less that you will receive big bucks. The employer may appeal an EEOC or state agency decision and force you to sue it in federal court or have the case remanded to a state administrative hearing. This could effectively stall any financial recovery for many more years. If you decide to file a private lawsuit, however, you will probably need to hire a lawyer to represent you in court, and this can be expensive.

The advantage of initially commencing a claim through the EEOC or a state agency is that it costs you nothing. Once a claim is accepted by the EEOC or state agency, an investigator in charge of your case will attempt to resolve the complaint through investigation and conciliation. The agency may render a nonbinding decision only when an informal settlement cannot be reached.

The EEOC performs the following general functions in any discrimination charge for free:

1. It will conduct interviews with you to obtain as much information as possible about the alleged discrimination and to explain the investigative procedure.

2. It will notify the employer about the charge that has been filed.

3. It will investigate the charge. This includes interviewing witnesses and reviewing all pertinent records, documentation, and other written materials.

4. It will attempt to resolve the matter amicably between the parties.

5. It will drop your case if it determines that it does not have merit.

6. It may conduct a fact-finding conference with all parties present in one room.

7. It will decide whether discrimination took place (i.e., issue a formal decision of probable or no probable cause.)

Once you file a charge with the EEOC, you cannot litigate the matter privately until the EEOC dismisses your case (finds no probable cause), rules in your favor, or permits you to do so (i.e., issues a “right to sue letter”). In these situations, you will have 90 days to file a private lawsuit to be timely after receiving a final disposition notice right-to-sue letter from the EEOC.

To start the ball rolling, it is necessary to file a formal charge. No one can stop you from filing a complaint; the law forbids employers from threatening reprisals or retaliation (such as loss of a promotion) when action is taken. The following must be included in the complaint:

1. Your name

2. The names, business addresses, and business telephone numbers of all persons who committed and/or participated in the discriminatory act(s)

3. Specific events, dates, and facts to support why the act(s) was discriminatory (e.g., statistics, whether other employees or individuals were discriminated against, and if so, the person(s) victimized, and by whom)

The complaint must be signed and sworn to by the complainant. However, it is not necessary for the complaint to be lengthy or elaborate. The main purpose is to make sufficient allegations to trigger an investigation. That is the advantage of filing charges with an appropriate agency; charges of discrimination are initiated and investigated at no cost to you. An investigator from the EEOC or state agency prepares and types the complaint. If your claim seems plausible, the EEOC or other agency will develop the claim on your behalf. A copy of the complaint, together with a request for a written response, is then sent to the employer. The employer must respond to the charges within several weeks. This is done either by a general denial of the claim or by the filing of specific facts and reasons to support the employer’s position.

The following text illustrates the brevity of a valid complaint:

I am a female. On (date) I was notified by my supervisor (name) at (name of employer) that I was fired. I asked (name) to tell me why I was fired; he said it was because I called in sick six times in the past year. I know of several male employees who called in sick more than six times and who were not fired.

Based on these facts I believe I have been discriminated against on the basis of my gender.

After charges and countercharges have been examined by an investigator, the employer and the complainant may eventually be invited to attend a conference if the investigator believes the complainant’s charges possibly have merit. Cases that are deemed to be too far-fetched or insufficient on their face are dismissed before the no-fault conference. If you receive a notice from the EEOC that your case has been dismissed (sometimes referred to as lacking probable cause), it must advise you of your rights. The letter will state that if you wish to proceed with your case, you must file a formal lawsuit in federal court within 90 days or forfeit your claim. This is called a right-to-sue letter.

The purpose of a no-fault conference is to discuss your case. At that time the investigator may make arrangements to visit the employer’s premises, examine documents and other pertinent records, and interview key employees and witnesses. Because an employer may have an incentive to dispose of the matter early on to save excessive legal fees, lost manpower time, and potential damages, approximately 40 percent of all complaints are disposed at the settlement conference.

STRATEGY: Although it is not necessary to retain a lawyer to represent you at or before the no-fault conference, the chances of settling your case are much higher with a lawyer present. An employer will bring its counsel and you may be intimidated. Additionally, an experienced lawyer can evaluate your claim and advise howmuch it is realistically worth. Since many EEOC claims take years to be heard, a lawyer will advise you whether a settlement offer is valid and should be accepted, particularly after considering the lengthy delays that are frequently involved. The conference is conducted by an investigator. Pressure may be placed on the employer to offer a monetary settlement or some other form of restitution (such as a promotion) to avoid the large legal expenses that would be incurred in the course of an ongoing investigation and eventual hearing. And some employers may be fearful that the investigator will examine its business records, including employment applications, interoffice memos, and pay records if a settlement is not reached.

If your case cannot be settled at the conference, many options are available, including:

• Hiring a lawyer privately and suing the employer in a civil lawsuit, typically in federal court

• Representing yourself pro se (without a lawyer) and suing the employer in federal or state court

• Having the agency act on your behalf to protect your rights and proceeding to a fact-finding hearing and determination

• Having the EEOC or Department of Justice commence a lawsuit for you and/or others similarly situated in a class-action lawsuit

• Hiring a lawyer and commencing a private lawsuit in state court and, if applicable, alleging other causes of action as well as violations of discrimination laws

The advantage of suing an employer privately is that you may receive a quicker settlement. The EEOCand other agencies have many thousands of claims to process and follow; your case could take years before it is acted upon. Even if you receive a favorable decision (referred to as a finding of probable cause), the employer can appeal the agency’s decision, adding years to the delay before an administrative trial is commenced. A lawyer working for you may be able to move the matter along more quickly. However, private lawsuits can be very expensive. That is why it is best to initially contact the nearest district office of the EEOC or state agency and speak with an intake person or investigator, or contact an employment attorney and discuss your options before taking action.

State and local laws are often more favorable than federal law in terms of the standards of proof required, the amount of damages awarded, and other factors. It may be advantageous to file charges with these agencies instead, so do not automatically assume your case must be filed with the EEOC. Talk to an employment attorney to discuss your options and maximize a claim.

When you retain a lawyer, he or she may first contact the employer by letter. The letter may specify the potential charges and invite the employer to discuss settlement before the matter proceeds to the next step. Cases are often settled this way before a formal discrimination charge is filed.

No matter what course of action is considered, do not delay unnecessarily. In many situations you must file a formal complaint within 180 days of the time the alleged act(s) occurred to avoid the expiration of the statute of limitations. Some complainants take their time and unfortunately discover their cases are dismissed because they waited too long to file.

 

Summary of Steps to Maximize a Discrimination Claim

1. If you believe you have been victimized by employment discrimination, consider filing a discrimination charge with the EEOC and/or your state agency. In some states, filing a charge with either the EEOC or state agency will be treated as filing with both. Speak to an employment attorney for advice, because some state statutes provide greater protection and some state agencies have more powers than the EEOC.

2. EEOC offices are listed in the telephone directory under United States Government or on the Internet. State agencies can be located by calling your state’s Department of Labor or an EEOC office in your area.

3. Typically, you must give your name if you want an investigation to proceed, but you cannot be retaliated against for filing a charge.

4. Although some state agencies permit a longer period (e.g., up to 300 days depending on state law), to be timely, you must file a charge with the EEOC within 180 days of the date the last incident occurred.

5. Although you may file a private lawsuit in federal court, once you file a charge with the EEOC you cannot litigate the matter privately until the EEOC dismisses your case (finds no probable cause), rules in your favor, or allows you to opt out. In either situation you then have 90 days to file a private lawsuit after receiving a final disposition notice (a right-to-sue letter) from the EEOC to be timely.

6. Obtaining a favorable decision does not automatically mean that you will receive big bucks. The employer may appeal a state agency or EEOC decision and force you to sue it in federal court.

7. Call the EEOC officer assigned to your case regularly to determine the status of the investigation and action taken in your case. Be assertive and follow the progress of your case. Whenever you receive a request for information, provide this immediately to the investigator.

8. If you are unhappy with the progress of the investigation or how the case is being handled, consult an employment attorney for guidance and advice. Consider joining a class-action lawsuit if one already exists against your employer or ex-employer. By doing so, however, you may have to withdraw from your own action.

9. Be patient. The EEOC often takes years to render its decision and the employer may delay the final outcome years more by refusing to settle and appealing the case further. Some investigators leave the agency while working on a case and a new investigator has to be assigned, causing further delay. Thus, recognize that in most situations, even with a good case, you may not receive justice for many years.

 

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After Eight Years, Terminated Employees Receive $6.2 Million Jury Verdict in Pregnancy Discrimination Case against Medical Services Company

Scott A. Lucas of The Law Offices of Scott A. Lucas and Steven Mitchell Sack of The Law Offices of Steven Mitchell Sack have helped three women who were fired from their jobs for being pregnant obtain a $6.2 million jury verdict in the matter of Santana, et. al v. G.E.B. Medical Management, Inc., et. al., 305261-08.



New York Post,
"Mother of all victorie$," 9/17/15.