Eric Sanders, Esq., of ¸£Àû¼§. discusses who is a ‘supervisor’ under Title VII?

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Eric Sanders, Esq., of ¸£Àû¼§. discusses how to file an employment discrimination complaint

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The main purpose of Title VII of the Civil Rights Act of 1964 was to eliminate unlawful discrimination and retaliation in the workplace. The United States Equal Employment Opportunity Commission () was given powers to enforce the laws that make it “illegal to fire, demote, harass, or otherwise “retaliate� against people (applicants or employees) because they filed a charge of discrimination.� It further states that is also illegal for an employer or covered entity to do the same because they complained about ‘discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).� A covered entity is an employer with 15 or more employees who are protected under the Title VII of the Civil Rights Act and American with Disabilities Act.

With respect to retaliation, if an employee files a complaint against an employer about workplace harassment or discrimination either to an internal body or an external body such as the EEOC, federal law “forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.� The law also protects individuals who cooperate in an EEOC investigation or serve as a witness to an EEOC investigation or litigation according to a Supreme Court decision.

However, The Supreme Court of the United States in University of Texas Southwestern Medical Center v. Nassar recently revisited the issue of workplace retaliation and discrimination after a writ of certiorari (a document which a losing party files with the Supreme Court it to review the decision of a lower court) was presented before the Court. Specifically at issue, does Title VII require a plaintiff alleging retaliation to show that retaliation was the only reason for a negative employment action? In this case, the respondent, Dr. Naiel Nasser, man of Middle Eastern descent, was a faculty member of the University of Texas Southwestern Medical Center (UTSW). The doctor in charge of the clinic, Nasser’s supervisor, Dr. Beth Levine began to question the respondent’s work practices and made offensive comments about Dr. Nasser’s ethnic background to another employee. Meanwhile, during this same he sought a promotion and obtained the promotion, however, he was still under Dr. Levine’s supervision and sought a position where he would not be.

He then sought employment at a clinic and was offered a position but would have to resign from UTSW. While waiting for the position start date he wrote his resignation letter to the University of Texas Southwestern Medical Center citing the primary reason for leaving was “the continual harassment and discrimination� by Dr. Levine. He further stated that she threatened him with potential job and salary loss and her treatment of him stems from her “religious, racial and cultural bias against Arabs and Muslims that has resulted in a hostile work environment.�
The University of Texas Southwestern Medical Center through an agent of the employer, Dr. Gregory Fitz, took issue with the wording of Dr. Nasser’s resignation letter in regards to Dr. Levine and actively sought to block the respondent from obtaining employment at the clinic. After heavy opposition from UTSW faculty the clinic withdrew their offer. He filed a lawsuit submitting that UTSW constructively discharged and retaliated against him in violation of Title VII of the Civil Rights Act of 1964.

Simply put, the respondent argued that a workplace retaliation claim alone would trigger Title VII protection while UTSW held that retaliation would be in addition to a claim based upon discrimination with race, sex, and religion.

The Supreme Court of the United States decided there is separation between retaliation claims from class based discrimination claims and that retaliation claims are to be held to a stricter standard of proof which to the Court made sense given the “ever increasing frequency� retaliation claims are being filed. Thus based on the Supreme Court decision, an employee who believes that an employer has retaliated them against must show that retaliation was not the only factor in any adverse action taken by the employer.

It is a big victory for employers, which hopefully doesn’t discourage those individuals who believe that their rights have been violated or retaliated against in the workplace; this decision just made it more challenging to prove.

If you believe that, you are the victim of retaliation contact ¸£Àû¼§. in New York. We will review your claim thoroughly, providing you with an outline of possible actions you may wish to take. We are ready to be your voice for justice.

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In addition to the laws that are enacted and are applicable throughout the State of New York, the City of New York has been very progressive enacting several expansive anti-discrimination laws.  In many respects, the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) are very similar in structure, legislative intent and application.  Laws enforced under the NYSHRL may be adjudicated administratively at the New York State Division of Human Rights (NYSDHR).  The NYSHRL may also be enforced by filing a lawsuit in federal or state court.  Laws enforced under the NYCHRL may be adjudicated administratively at the New York City Commission on Human Rights (NYCCHR).  The NYCHRL may also be enforced by filing a lawsuit in federal or state court.

The NYCHRL prohibits discrimination in employment, housing and public accommodation on the basis of race, color, sex, religion, national origin, marital status, citizenship status, gender, gender identity, sexual orientation, disability, etc.  The NYCHRL also prohibits discrimination in employment on the basis of arrest or conviction record.  The NYCHRL prohibits retaliation.  Recently, through the New York City Local Civil Rights Restoration Act of 2005, the NYCHRL was enacted to further enhanced and broadened  protections relative to both the federal laws and the NYSHRL counterparts.

In Gina Williams v. New York City Housing Authority, et al., 61 AD3d 62 January 27, 2009.  The Court held that, the Restoration Act notified courts that (a) they had to be aware that some provisions of the NYCHRL were textually distinct from its state and federal counterparts, (b) all provisions of the NYCHRL required independent construction to accomplish the law’s uniquely broad purposes, ^[and (c) cases that had failed to respect these differences were being legislatively overruled. In short, the text and legislative history represent a desire that the NYCHRL “meld the broadest vision of social justice with the strongest law enforcement deterrent.â€�  The Court then affirmed the lower Court’s dismissal because the Pro See plaintiff did not raise the misapplication of the law during her appeal.

In Howard Hoffman v. Parade Publishing, et al., 2010 NY Slip Op 05706 decided July 1, 2010, the court held that the protections of the NYCHRL would be available to an employee that resides in the City of New York, even if the employer is located outside of the City of New York if, its’ decision had an “impact� within the City of New York.

In Daniel M. Maffei v. Kolaeton Industry, Inc. et al., the court held that the NYCHRL applied to prohibited discrimination against transgendered individuals.
To file a discrimination complaint with the New York City Commission on Human Rights, please call 311 if you are located within the City of New York or 212-306-7450

CCHR Community Service Centers

Manhattan
40 Rector Street, 10^th Floor
New York, N.Y. 10006
212-306-5070
Brooklyn
275 Livingston Street, 2^nd Floor
Brooklyn, N.Y. 11217
718-722-3130
Bronx
1932 Arthur Avenue, Room 203A
Bronx, N.Y. 10457
718-579-6900
Queens
153-01 Jamaica Avenue, Room 203
Jamaica, N.Y. 11432
718-657-2465
Staten Island
60 Bay Street, 7^th Floor
Staten Island, N.Y. 10301
718-390-8506

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Under Federal, State and some local laws, it is illegal to discriminate against an individual for their:
• Ethnicity
• Skin color, or related facial features
• Country of origin
• Age
• Sex
• Religious beliefs
• Political alignment
• Arrest and conviction record

What constitutes discrimination?

An act constitutes discrimination if you are subjected to treatment that is different from that way others are treated. The differentiation must be in a negative or adverse manner to be considered discrimination; if, due to your race, religion, or status, you are subjected to extra special service, or some other positive act, although you may have been treated differently, the act does not constitute discrimination. Examples of discrimination include:
• Being refused service at a restaurant due to your skin color
• Not being hired for a job due because of your religious beliefs
• Other employees are promoted over you, despite your being more qualified due to your race
• Being refused entrance into an establishment due to your country of origin
• Having to resign from your employment, due to unwarranted sexual gestures and advances towards you
• Being fired from your job after your employer learns that you have different political views
• Being fired from your job due to your sexual orientation
• Not receiving service from an employee or business with anti-war views, upon their learning of your status as a veteran
• Being turned down for a job, despite being qualified, due to your marital status
• Not being allowed to enter a church after being charged with a crime

What do I need to file a discrimination complaint?

If you plan on filing a discrimination complaint, it is imperative that you document as much as possible. For example, if you have been discriminated against while applying for a job, prepare all the documents relevant to your job application process. If you were treated unfairly at a business establishment, keep receipts or other relevant material. If you are able to take photographs or video, related to the act of discrimination against you, due so. Write down the names of the offender as well as witnesses including the surrounding circumstances.

How do I file a discrimination complaint?

Before filing your complaint, you may want to consult with an attorney. When considering legal advice, it would serve you well to consult with an attorney that handles discrimination cases. The attorney will consider your claims then suggest ways to meet your legal needs.
Complaints about discrimination covered under may be filed with the federal government. To file a complaint with the , please contact the online. In New York, you may file in person at 33 Whitehall Street, 5th Floor New York, N.Y. 10004.

Complaints about discrimination covered under New York State Executive Law 296, may be filed with the state government. To file a complaint with the , please contact the online. You may file in person but, see the website for further information as the filing locations vary depending on the type of discrimination and the location.

Complaints about discrimination covered under New York City Administrative Code 8-107, may be filed with the City of New York. To file a complaint with the New York City Commission on Human Rights, please contact the online. You may file in person but, see the website for further information.

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