Many things about work are balancing acts. Workers weigh the desire for professional advancement and higher compensation against the negative impacts of greater demands their jobs will inevitably have on their lives outside work (the "work-life" balance.) Too many workers, though, face a different balancing act: weighing the need for the income their job provides versus the desire to speak out against illegal discrimination or harassment. The law says you shouldn't have to choose between your job and standing up for what's right. Depending on your circumstances, you may be entitled to a court judgment based on the illegal discrimination, harassment, or retaliation that your employer engaged in. An experienced New York employment discrimination lawyer can help you assess your case and outline your options going forward.
Last November, Eater Detroit published a piece from a woman of color facing the latter struggle. The woman worked in that city's restaurant industry and her piece was tellingly entitled "I Smiled Through Racism and Abuse at My Restaurant Job, Because I Had To." Many workers fear that their ability to provide the basics for themselves and their families rests upon keeping the job they have... and keeping that job requires "playing along."
However, if you smiled and "played along" at work in the face of racism, sexism, or some other form of harassment, your employer may try to use that against you when you decide, later on, to take them to court.
Take, for example, L.B., a Black woman who worked at a Rochester periodontist office. L.B. allegedly experienced many forms of harassment based on her race. L.B.'s allegations included the time one doctor pulled her by the necklace and called her "Kunta", the time that same doctor sent a cartoon around the office portraying L.B. as a wild animal, and another time when the doctor said L.B. looked like a "Mammy on the plantation."
Allegedly, the harassment playing on well-worn racial tropes didn't stop there. The doctor brought to the office necklaces with words like "b----" and "slave" on them, said the office should obtain fried chicken for L.B.'s lunch, made a joke about L.B. having nothing to eat if a restaurant said it had run out of barbecue ribs, and said L.B.'s manner of dress looked like Buckwheat from "The Little Rascals."
Faced with allegations like that, an employer may argue that you were OK with that conduct. In L.B.'s case, the employer presented evidence that purportedly showed L.B. did not find the doctor's behavior abusive.
The 'Victim Must Subjectively Perceive' the Abuse
This evidence is crucial in a federal discrimination case. Under federal law, the illegal conduct underlying a worker's case "must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive."
An employer may claim "she laughed at the jokes" to prove the worker wasn't offended. However, like the Black restaurant worker in Detroit, many employees may laugh at abusive jokes because they think it's required to keep their jobs. An employer might also point out that "she did not go to HR." Again, this is not conclusive proof as many workers harbor plausible fears that pursuing such an action might end with them losing their jobs.
If your employer presented this argument in a motion to dismiss or a motion for summary judgment, there are ways to combat it. Primarily, you need proof that runs to the contrary. If, as was the case in L.B.'s lawsuit, some evidence indicated that the worker "did not find this behavior abusive" but other proof indicated the worker did perceive the conduct as abusive, then that employer is not entitled to summary judgment and the worker is entitled to continue pursuing her case.
No one should have to choose between smiling and laughing in the face of abuse and losing a job they desire to keep. If you've encountered abusive jokes, comments, cartoons, memes, videos, etc., then you may have experienced illegal discrimination or harassment. The diligent New York race discrimination attorneys at Phillips & Associates are here to help. Our team has a wide range of experience in handling employment discrimination matters, so we know how to deliver reliable advice and advocacy that gets results. Contact us online or at (866) 229-9441 to set up a free and confidential consultation today.