Dr. Jillian T. Weiss

The Employment Discrimination Lawsuit Blues

Filed By Dr. Jillian T. Weiss | January 22, 2013 11:30 AM | comments

Filed in: Living
Tags: gay discrimination, lawsuit, LGBT discrimination, trans discrimination

Let's say that your troglodyte co-workers call you "faggot" or "Ms. Thing" or "he" when you're a "she" or vice versa, or make some other neanderthal comments. And let's say you are not going to take that kind of treatment, and you want to enforce your rights to be treated with dignity under the law. What do you do?

ladyjustice.jpegFederal law prohibits employment discrimination based on sex, which has been interpreted to mean gender identity or expression, as in transgender identity, or non-standard gender, as in gay stereotyping. If you work for a public employer, sexual orientation is covered by some federal courts under the U.S. Constitution. A number of state and city laws also prohibit employment discrimination on these bases. Most large companies also don't allow that kind of behavior and say so in their policies. But what does it mean to try to enforce these rights?

I've recently reactivated my law licenses in New York and New Jersey, and undertaken a number of lawsuits for people who have requested my assistance as a lawyer. So I'm seeing a whole different side to things, beyond the academic theories I've been spending time with for the past decade.

It's a jungle out there.

The first thing that you have to do is to file an internal complaint. Why? Because under the federal law, if you didn't notify your employer, then they are not liable for anything done by a co-worker or someone who's not your supervisor, as long as the employer had a policy in place saying it's not allowed and a reasonable means for making a complaint to correct the situation.

OK, you say, sounds easy enough. So you get out your golf pencil, and go to HR and get a complaint form. Let's see, um, "George called me a faggot." Today's date at the top, signature at the bottom, and we're in business. Right? Wrong.

First of all, HR is going to assign an investigator. That alone may take weeks. Then, the investigator will attempt to find George to get a statement from him. You would think that they would interview you first to get more details, but that's not always the way it works. Finally, the investigator tracks down George, and asks about this. George, of course, says that he said no such thing. Now HR comes back to you to ask more questions. Were there any witnesses they can interview to get George in trouble? If not, the allegation is "unsubstantiated." It's "he-said-she said." So they won't take any action. Unless they don't like George and want to get rid of him anyway, in which case, this is as easy a way as any, since George essentially has no recourse in the courts. (That may be changing a little after the 2009 New York case of Sassaman v. Gamache.)

But let's say there is a witness, someone you work with. Now you realize, uh oh, I have to get this other person involved in bad-mouthing George, something that is not likely to get them voted "Most Popular Co-Worker." Will the witness back you up? Hard to say, unless you're close with them. It would have been better if you had talked to the witness immediately after the incident and persuaded them that the incident was upsetting to you and worth reporting, and ask them if they'll back you up when you complain. If not, better to know now. It might still be worth reporting, even without a witness, in case there are future substantiated incidents. Because when something substantiated happens, and you try to say this is one in a series of incidents, guess what George and the Company are going to say? We never heard a word about this until now. You're making this up, right?

So you're caught between a rock and a hard place. If you report it with no witness, then it's unsubstantiated and now George is really pissed, and maybe his nasty friends, too. If you don't report it, then you will have a very hard time raising it later on, after George goes off the rails.

Because, oh, by the way, a single incident is generally not considered harassment. The federal law requires a "severe and pervasive."

You don't need a lawyer to file a claim with the United States Equal Employment Opportunity Commission. You can do it yourself. But that's like doing brain surgery yourself. There are a lot of things you have to prove to create a successful claim, and you don't know any of the requirements. The EEOC has about 100,000 cases every year, and only about 5 percent are found to have "reasonable cause" at the EEOC.

Since I'm a professor, and don't need income from my clients, and part of my job title as a professor means doing community service, I can take the case on a pro bono basis (free of charge) or contingency basis (I get paid a percentage of your award, if any). That's as rare as hen's teeth.

That is hurdle number one for most people. Standard legal fees are about $300 per hour, and double that for a large firm. Taking the case from A to Z against a determined employer probably takes about 500 to 1,000 hours. Lawyers considering taking a case on a contingency basis (who are paid only if you win money) are aware that only about 15 percent of the employment discrimination actions brought are winners. And awards are low, especially if you didn't have a mental breakdown, no one touched you, and you didn't get fired.


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