Next month will mark five years since the death of noted American actor R. Lee Ermey. Perhaps Ermey’s most memorable role was portraying a verbally abusive Marine drill sergeant who trained a group of Marine recruits during the Vietnam War era. While the Marine Corps may have considered such methods appropriate then, this isn’t the 1960s and your New York workplace isn’t Parris Island. If you’re enduring verbal abuse at work — and that abuse focuses on your age, sex, race, sexual orientation, gender identity, religion, disability, etc. — then you may have a valid legal claim, so you should get in touch with a knowledgeable New York discrimination lawyer with all due haste to discuss your situation.
One worker who alleged that sort of misconduct was a woman who, at age 61, started as a correction officer trainee at the New York State Department of Corrections training academy.
According to the trainee’s age discrimination complaint, the torrent of harassment began almost immediately. During the trainee’s very first lineup, the drill sergeant “called her out of line, asked for her age and then said ‘God bless you’ in front of the other trainees.” From that moment on, other trainees, correction officers, and staff all began calling her “grandma” continuously.
On day two, an officer allegedly “jumped out in front of her and yelled, ‘what the F did they let loose on us? Are they effing crazy?'”, causing those nearby to laugh.
Because the discrimination the trainee allegedly endured took place before Oct. 11, 2019 (the date when the NYSHRL was amended to loosen the standards for establishing discrimination,) the trainee was still under the obligation to establish that the mistreatment she faced was “severe” or “pervasive.” That meant that, to make out a claim based on pervasive discriminatory treatment, a worker had to show that her workplace was “permeated with discriminatory intimidation, ridicule, and insult” that was “continuous and concerted.”
Furthermore, to hold your employer liable for pervasive discrimination perpetrated by your coworkers, you have to show that your employer encouraged, condoned, or approved of the misdeeds, or functionally condoned the discriminatory conduct by its “calculated inaction.”
Even still, the Appellate Division court concluded that the trainee’s assertions were enough to establish a viable claim of pervasive age discrimination against the department. The trainee’s evidence included an assertion that members of a different training class came to visit her to ask “if she was really in her sixties.” At that point, the trainee realized that her status as “grandma” was “spreading like wildfire” throughout the academy. That allegation, according to the appeals court, further illustrated the pervasiveness of the discrimination.
With regard to the department’s liability, the court also deemed the trainee’s assertions to be sufficient. The court stated that “the inaction in the record by defendant’s staff, combined with the allegations that supervisors had knowledge of the conduct but ignored it” was adequate to raise a viable argument that the department implicitly condoned the discriminatory misconduct.
NYSHRL Claims Now that the ‘Severe or Pervasive’ Standard is No More
Of course, for those New York workers who have encountered discrimination or harassment that occurred after Oct. 11, 2019, the hurdle they must clear is not as high. Workers with discrimination or harassment claims rooted in more recent misconduct simply must establish that they were the subject of adverse treatment (to any degree) that was based on a protected characteristic. Once the worker does that, the misconduct is actionable unless the employer can demonstrate to the court that the actions about which the worker complained amounted to nothing more than things that a reasonable employee would consider to be “petty slights or trivial inconveniences.”
This change is a significant benefit for workers. Here in New York City — where the New York City Human Rights Law eliminated the “severe or pervasive” requirement several years before New York State did — workers have used the new standard on several occasions. One such case involved a woman who avoided dismissal of her sexual harassment and discrimination case predicated on business meetings and parties held at strip clubs, men commenting on women’s physical features, and men commenting on their sex lives. Another was a worker who avoided dismissal of a claim based upon an Indian CEO who derided Americans as lazy, too litigious, overweight, and insufficiently dedicated to their jobs.
With the 2019 changes in New York State law, workers across the state have the benefit of pursuing legal claims for discrimination and harassment without needing to prove pervasiveness or severity. If you’ve endured discrimination or harassment on the job, the experienced New York employment discrimination attorneys at Phillips & Associates are here to help. We’ve spent decades helping workers harmed by harassment and discrimination, and we’re eager to discuss your matter with you. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.