What Happened — The Facts & Verdict

The plaintiff, Lisa Krause, served as principal of a junior-senior high school in the Oriskany Central School District beginning in December 2014. She testified that during her tenure, she was subjected to repeated discriminatory conduct by her supervisor, the superintendent — including repeated demeaning, harassing, and sexist remarks, unequal treatment of female staff, and threats regarding her employment.

According to the record, school-board members heard complaints about the superintendent’s behavior, but despite assurances, the conduct persisted — culminating in Krause’s placement on administrative leave in September 2016 and her termination the following month.

At trial, the jury found in Krause’s favor on her Title VII and NYSHRL claims — concluding that her gender was a motivating factor in the decision to terminate her, and that she suffered a hostile-work environment. The jury’s verdict awarded her $484,456 in damages, including lost income and emotional distress.

The defendants appealed — challenging (1) the sufficiency of the evidence supporting the verdict; (2) the award of lost-income damages; and (3) certain alleged trial errors, including an allegedly confusing instruction to the jury about New York’s student-accommodation laws.

Second Circuit Rejects All Grounds — Verdict Stands

On de novo review, which essentially means that the appellate court took a fresh look at the evidence, the Second Circuit held that the defendants had failed to carry their “heavy burden” to show that no reasonable jury could have found against them.

Notably, the Court reiterated the applicable standard: to overturn a jury verdict for insufficiency, the record would have to show a “complete absence of evidence” supporting the verdict or be so overwhelmingly favorable to defendants that “no fair-minded jury” could find otherwise.

Given the substantial record — including Krause’s own testimony and corroborating evidence from colleagues who witnessed or heard of the superintendent’s hostile behavior — the Court concluded the verdict was well supported.

Likewise, the award of lost-income damages stood. The Court found no abuse of discretion in the trial court’s decision to permit recovery — nor any compelling reason to order a new trial based on the challenged judicial comments.

Thus, the Second Circuit affirmed in full, leaving in place the jury’s verdict and the substantial damages award.

Why This Opinion Matters — Broader Implications

The Krause decision serves as a reminder that courts remain an essential avenue for vindicating workplace-discrimination claims. Even when defendants may emphasize performance or managerial discretion in their defense, juries may reliably find the plaintiff’s testimony of discriminatory treatment credible. The Second Circuit’s decision underscores several important points for employers and defendants — and for plaintiffs and their counsel — alike:

• Substantial-evidence standard remains rigorous but deferential. Appellate courts rarely overturn jury verdicts absent clear error — consistent with the principle that courts should not “weigh conflicting evidence” or second-guess credibility determinations.
• “Motivating factor” standard effective. Under Title VII, a plaintiff does not need to show that her protected characteristic was the sole cause of her termination. Here, evidence showed that gender was at least a motivating factor, sufficient to support liability.
• Lost-income damages remain available. The Court upheld a substantial award of back pay and related damages — signaling that courts will not lightly strip victim-plaintiffs of full compensation once liability is found.
• Hostile-work environment claims still viable. The conduct described at trial — repeated harassment, demeaning comments, differential treatment toward women — illustrates common forms of workplace discrimination, and the verdict confirms that such patterns remain actionable under Title VII and analogous state law.

For plaintiffs considering or pursuing employment-discrimination claims, Krause v. Kelahan demonstrates that a well-supported record — credible testimony, corroboration, patterns of conduct — can overcome formidable defenses even through trial and appellate review.

For employers, the decision is a cautionary tale: discriminatory conduct, even if informal or subtle (e.g., comments about clothing or parenting, unequal scrutiny, micro-management tied to gender stereotypes), can lead to significant liability. Structural safeguards — including robust human-resources practices, training, and enforcement of anti-discrimination policies — remain vital.

Conclusion

The Court’s affirmation of a nearly half-million-dollar verdict in favor of a female school principal is a strong signal that courts remain committed to enforcing workplace-discrimination laws. The decision in Krause v. Kelahan reflects the enduring principle that employment decisions cannot be tainted by gender bias — even when wrapped in claims of managerial discretion or performance concerns.

If your organization needs guidance evaluating or updating your discrimination policies, or if you believe you may have grounds for a Title VII (or state-law) claim, our firm stands ready to assist. Our employment lawyers are available at (631) 352-0050 or we can be reached via our website at http://linycemploymentlaw.com.

The full version of the Krause decision is available via the Second Circuit’s website.

To prove a discrimination or retaliation claim in court, an employee must prove, among other things, that he or she suffered an adverse action. At Famighetti & Weinick PLLC, we typically describe this requirement as having to show that the employer did something bad enough in the eyes of the law. One thing an employer may do to an employee in retaliation for an employee engaging in protected activity is to subject to the employee to a retaliatory hostile work environment.

In August 2023, the United States Court of Appeals for the Second Circuit issued an opinion clarifying the legal standard used to analyze retaliatory hostile work environment claims. Today’s Long Island employment law blog takes a look at the case Carr v. New York City Transit Authority.

Title VII prohibits workplace discrimination based on an employee’s protected characteristics such as race, religion, sex, gender, or national origin. It also prohibits employers from retaliating against employees who complain about or oppose activity which Title VII prohibits. Both claims require that an employee prove that an adverse action occurred.

To put it another way, courts often write that Title VII was not enacted to broadly implement a workplace civility code. Thus, not every slight or perceived wrong which an employee suffers may give rise to a workplace discrimination or retaliation claim — even if motivated by an animus towards the employee’s protected characteristic. Rather, courts generally require that the employee to have suffered a material change to the terms and conditions of employment. Clear cut examples include a termination or a demotion with loss of pay.

Under the discrimination law, employees may also claim that they suffered a hostile work environment. In interpreting Title VII, to prove a hostile work environment claim, courts require that employees show they faced unwelcome abusive conduct based on a protected characteristics. Notably, and as is relevant for this blog, employees must also show that the conduct was either severe of pervasive.

Under the retaliation law, employees can also show they suffered an adverse action by showing they faced a retaliatory hostile work environment. The concept of a retaliatory hostile work environment has been widely accepted by many courts. In New York, however, the legal analysis of such claims has not been settled. The Carr case changed that.

In Carr, the Second Circuit has to determine the appropriate standard to evaluate retaliatory hostile work environment claims. The trial court used a standard which mirrored the analysis for a discriminatory hostile work environment — the severe or pervasive standard.

On appeal, the Second Circuit detailed the history of the law concerning the definition of adverse action in the context of discrimination verse retaliation. The leading case concerning the distinction is Burlington Northern & Santa Fe Railway Company v. White, commonly referred to as just Burlington Northern. In Burlington Northern, the Supreme Court ruled that the harm an employee must show for retaliation, i.e. the adverse action, is a lower threshold showing than for a discrimination claim.

The key distinction drawn by Burlington Northern is that for retaliation, an employee need only show that the adverse action either in singularity or in the aggregate was materially adverse. The Supreme Court emphasized that this standard is broader than what an employee must show for purposes of a discrimination adverse action. Specifically, the Supreme Court ruled that a retaliatory adverse action is one which dissuade a reasonable employee from making or supporting a charge of discrimination.

Applying these principles to Carr, the Second Circuit ruled that since the harm for a retaliation claim is not the same for a discrimination claim, then the severe of pervasive analysis is not correct. Rather, to determine whether an employee has met the standard for a retaliatory hostile work environment claim, the employee must prove that the retaliatory actions taken were singularly or in the aggregate, materially adverse, meaning sufficient to dissuade a reasonable employee from making or supporting a charge of discrimination.

As employers become more sophisticated and knowledgeable about employment laws, they are more prone to conceal their retaliatory conduct in the form of ongoing lesser harms, instead of an obvious retaliatory action such as a termination. The Carr case is an employee-friendly case which makes it easier for employees to prove they suffered a retaliatory hostile work environment based on a series of lesser harms.

If you have questions about workplace retaliation, a retaliatory hostile work environment, or the Carr decision, contact a Long Island retaliation lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050.

Second Circuit Rejects Severe or Pervasive Standard for Retaliatory Hostile Work Environment Claim

The lawsuit alleges that the female volunteer firefighter is currently the only female in the department. Unlike her male counterparts, the female firefighter alleged that she was treated differently by being subject to unwarranted scrutiny over work on department committees. She further alleged that stipends and budgets under her control were cut to levels lower than males who had previously held her position.

After years of ongoing disparate treatment, the firefighter eventually brought her complaints to the department’s attention. After making the complaint, individuals in the department tried to oust her from her position as an officer of the department, and took other action allegedly in retaliation for her complaints. Ultimately, the fire department decided that her claims lacked merit, so she filed a charge of discrimination with the Equal Employment Opportunity Commission.

After an investigation, the EEOC determined reasonable cause existed to believe that the department had discriminated and retaliated against the firefighter in violation of Title VII. The EEOC later issued right to sue letter to the firefighter, allowing her to file her claims in federal court.

Accordingly, in November 2020, the firefighter filed her lawsuit against the fire department. In response, Defendants tried to have the case immediately dismissed. The department asked the court for permission to file a motion to dismiss. The department argued several reasons why the case should be dismissed, including that the statute of limitations bars the claims, that the conduct was not “severe or pervasive,” that the conduct was not directed at the firefighter based on her sex, and that the firefighter was not subject to a materially adverse employment action.

Famighetti & Weinick PLLC filed a detailed response to the fire department’s motion, on behalf of the firefighter. The firm cited to controlling legal authority showing why the claims were not barred by the statute of limitations. The firm further pointed out the reasons that the allegations were sufficient, including the fact the EEOC had already determined that the allegations were sufficient to support claims unlawful conduct under Title VII.

On March 3, 2021, federal District Judge Gary Brown heard oral argument on defendants’ motion. Employment lawyer Matt Weinick argued the case for the firefighter. After the department’s lawyers argued why dismissal should be granted, Weinick argued the firefighter’s case. Weinick emphasized the importance of the EEOC’s decision and the important role it should play in the court’s decision. Weinick also argued about the unique characteristics of Long Island volunteer fire departments, and why the conduct in this case amounted to a hostile work environment, discrimination, and retaliation.

Typically, the defendants’ motion is a preliminary matter and courts ask that the parties provide more substantive briefing after the court conference. In this case, Judge Brown ruled from the bench that he was considering the motion to dismiss fully made and argued, and that he would be denying the motion in its entirety. Thus, the case will not be dismissed, but instead, will be allowed to proceed to the next stages of the litigation process.

The judge recognized several points articulated by the firm’s arguments. First, volunteers, such as volunteer firefighters on Long Island, are considered employees for purposes of employment discrimination laws. But, the court’s decision also recognizes the importance of the continuing violation doctrine and it’s relationship to the 300 day filing rule for EEOC charges. The decision also shows the importance of a reasonable cause determination and it’s relevance to a court’s analysis about whether a discrimination lawsuit should be dismissed or not.

If you have questions about discrimination in fire departments, motions to dismiss, the EEOC, or retaliation, contact a Long Island employment lawyer at 631-352-0050. The phone number for our Hudson Valley employment law office is 845-669-0040.

Judge Rules Discrimination Case Against Fire Department Can Proceed

At Famighetti & Weinick PLLC, one of the leading inquiries we see as Long Island employment lawyers is “I’m working in a hostile work environment.” A hostile work environment is a legal term of art. While many employees subjectively consider themselves as facing a hostile work environment, the law does not recognize all hostile environments as being actionable in court. In other words, the law does not allow all employees to sue their employers for a hostile work environment.

Among other things, to sue an employer for a hostile work environment, the hostility must be based on a protected characteristic of the employee (such as sex, gender, age), the conduct must be sufficiently “severe or pervasive,” and, at least under federal law, there must be a basis for holding the employer responsible for the actions of its employees. These “elements” of a hostile work environment claim are not black and white issues, so employers and employees often hotly dispute these points in court.

In Legg, the female plaintiffs worked at a county jail. They alleged they faced a hostile work environment based on sex, i.e. sexual harassment. They testified that pornographic magazines were routinely circulated around the jail by male employees and that the male employees used pornographic screensavers on their computers. Testimony also included that male employees would make sexual comments and banter in the workplace and that as to one plaintiff, male employees would comment about her body and talk about wanting to do sexual activities with her.

The plaintiffs complained to supervisors, but at least initially, the supervisors did nothing. Instead, at least as to one plaintiff, the supervisor said that the harasser was required to continue working with her. It was not until later formal complaints were filed that the jail took any corrective action. The case eventually went to trial. The jury found against two plaintiffs, but in favor of a third plaintiff, finding she was subject to a hostile work environment.

The plaintiff and the jail appealed various issues which arose during the case, including several procedural issues. The Court considered and decided those issues, but those points are not discussed in this blog.

As is relevant for this blog, the jail argued on appeal that the jury’s decision finding that a hostile work environment existed was error because the incidents were minor and took place over too long a period of time. The appellate court reviewed the rules concerning how hostile work environment claims should be evaluated. The Court noted that factors to be considered are the totality of circumstances, the frequency of conduct, the severity of the conduct, and whether the conduct is physically threatening or humiliating.

The Court had no difficulty finding the conduct here satisfied the standard. The court noted that there was a pervasive presence of pornography in the workplace and, most importantly, a co-worker commented about the plaintiff’s body and made other sex based conduct directed at plaintiff. The Court distinguished a past case where the conduct was less severe, including minor pranks and an isolated comment.

The Court then turned to the requirement that there be a basis to impute the conduct to the County. Here, the Court reiterated the rule that the employer is liable if it fails to provide a reasonable avenue of complaint about discrimination or if it failed to exercise reasonable care in knowing about or taking corrective action against the conduct. For this point, the Court noted that the County took no action at all upon the plaintiff’s initial complaint, then it mishandled a second complaint. Based on these facts, the jury reasonably determined that the County failed to adequately respond to the plaintiff’s complaints.

The final issue addressed by the Court is a complicated area of Constitutional law. The plaintiffs sued under both Title VII, a federal law which prohibits employment discrimination, and the 14th Amendment to the Constitution which requires equal protection under the law. It is well settled that the 14th Amendment bars employment discrimination in public workplaces, in much the same way as Title VII.

One difference between Title VII and 14th Amendment discrimination claims is who can be used. Typically, only employer entities can be sued under Title VII, and the reverse is true under the 14th amendment- that only individuals can be sued. But, municipalities can be sued under the 14th Amendment where the plaintiff shows that a custom and policy of the municipality caused the discrimination. This is generally hard to prove.

In Legg, the appellate court ruled that where a municipality acquiesces in conduct creating a hostile work environment, the plaintiff may establish the municipality’s liability under the Constitution. In Legg, the Court determined that the workplace was so permeated with discriminatory ridicule or insult that the County could be liable.

In sum, the Second Circuit Court of Appeals has reaffirmed some important principles of employment discrimination law in New York. First, pornographic material has no place in a workplace and its presence can constitute a hostile work environment, particularly when accompanied by sexual comments directed at female employees.

Second, the Court’s ruling emphasizes that employers are responsible for taking decisive and swift action to correct a hostile work environment, when receiving notice (or should have reasonably known) that a hostile work environment exists in its workplace. Finally, the Court suggested that when a municipality acquiesces in conduct constituting a hostile work environment, it may be liable under the Monell theory of Constitutional liability.

If you have questions about Title VII, Monell liability, the Fourteenth Amendment, or hostile work environments, including sexual harassment, contact a Long Island employment lawyer at Famighetti & Weinick PLLC. Our phone number is 631-352-0050.

Appeals court decides hostile work environment case

Hostile Work Environment Claims are Fact Intensive and Should Not Be Decided on Summary Judgment

Under federal law, a hostile work environment claim must show, among other things, that the employee was subjected to abusive and unwelcome conduct based on the employee’s membership in a protected class. Further, the conduct must be severe or pervasive such that it altered the terms and conditions of the employee’s employment. Notably, New York law expressly eliminates the severe or pervasive standard, so that showing is not necessary when suing under state law, but still must be met when suing in New York, but under federal law. The Rasmy decision addresses the requirements (1) conduct based on the employee’s protected class and (2) the terms and conditions of employment. These points are discussed below.

Courts Must Look at the Totality of the Circumstances

In Rasmy, the trial court dismissed the employee’s hostile work environment claim because the court determined that (a) conduct which was not directly targeting the employee could not support a hostile work environment and (b) other conduct which was not expressly discriminatory could not support a hostile work environment. The appellate court disagreed with both conclusions.

The Second Circuit reminded trial courts that when looking at hostile work environment claims, they must consider the totality of the circumstances. This means courts should not look at each discrete incident of offensive conduct, but rather must look at the effect of the totality of the conduct on the employee’s work environment.

In Rasmy, the trial court ruled that seemingly neutral acts – i.e. conduct not overtly discriminatory in nature – did not constitute discrimination. In Rasmy, those seemingly neutral incidents included the defendants calling Rasmy a “rat” and filing false complaints about him.

The Second Circuit disagreed with the analysis. Specifically, the Court held that when the same individuals engage in conduct which is overtly discriminatory, but also engage in some neutral abusive conduct, the entire “course of conduct” must be reviewed to analyze the hostile work environment claim.

Further, in Rasmy’s case, he alleged that he overheard discriminatory comments, but that some of these comments were directed specifically at him. The trial court ruled that such comments are stray remarks and not actionable because they were not directed at him. The Second Circuit disagreed and held that conduct “purposefully taking place” in the employee’s conduct can support a hostile work environment claim.

No Single Factor is Dispositive for Determining Hostile Work Environment Claims

The Rasmy trial court determined that although the employee could show pervasive treatment which was offensive, Rasmy could not show his conditions of employment were altered because he did allege he was physically threatened or he could not perform his job. The Second Circuit ruled that the holding “ignores” the reason Title VII prohibits hostile work environments.

To frame its analysis, the Second Circuit stated a reminder that for hostile work environment claims, courts must consider the conduct’s “overall severity and pervasiveness.” Further, the Circuit warned that this standard suggests disposition of such claims by a judge is generally not proper, meaning the issues should be decided by a jury.

In Rasmy’s case, the Court determined that the trial court did not credit several pieces of evidence suggesting Rasmy faced sufficiently severe of pervasive conduct, including, possibly being involved in a physical altercation, and that the harassment made him chronically nervous and he regularly cried.

In sum, the Second Circuit determined that Rasmy’s hostile work environment claim should have gone to a jury to decide, instead of being dismissed at summary judgment by a judge.

But-for Causation is not Applicable to Analyzing a Prima Facie Case of Retaliation

Retaliation claims use a familiar burden shifting analysis which requires a plaintiff to first establish a prima facie case of retaliation. The law is well settled that this is a minimal requirement. The prima facie case requires the plaintiff to show (1) she participated in a protected activity; (2) she was subjected to an adverse action; and (3) a causal connection exists between the protected activity and the adverse action. After the prima facie case, the employer can show that the adverse action was taken for legitimate, non-retaliatory purposes. Then, the employee must show the business reason is pre-text.

In Rasmy, the trial court never reached the burden shifting part of the analysis because it determined that Rasmy did not meet the third element of causation.

A few years ago, the Supreme Court issued a decision (Nassar) which alters the standard for determining causation in Title VII retaliation cases. Previously, courts used a more lenient “motivating factor” standard. After Nassar, courts were required to use a more rigorous “but-for” standard.

In Rasmy, the trial court used the but-for standard to determine whether the employee satisfied the prima facie showing of causation. The Second Circuit cautioned that but-for causation does not apply to the prima facie case. Rather, but-for causation is employed at the pre-text stage.

Moreover, the Second Circuit determined that 5 months elapsing between protected activity and an adverse action can support an inference of retaliation and guided courts to look at factors such as organization and size of the employer, the existence of layers of decision making, and nature of the employer’s claims, to determine whether temporal proximity evidence can support an inference of retaliation.

Finally, the Second Circuit again noted that questions concerning an employer’s motivations are more appropriately decided by a jury, not a judge.

In sum, Rasmy is an amazing case for employees. It puts to rest many arguments raised by employers when defending discrimination and retaliation cases and emphasizes once again to trial courts that their role is limited on summary judgment and that discrimination and retaliation cases are usually more appropriately decided by a jury.

If you have questions about hostile work environment standards, retaliation claims, or the Rasmy decision, contact a Long Island employment lawyer at 631-352-0050. We have more information about discrimination and retaliation cases available on our website at http://linycempoymentlaw.com.

Court issues employee friendly decision

For an employee to have a hostile work environment claim against an employer, the employee must be able to show the employer’s abusive conduct was either severe or pervasive. When showing pervasive conduct, the employee must show many hostile and abusive acts took place frequently over a period of time. But, employees must file charges of discrimination within 300 days of the discriminator act.

In Davis-Garett v. Urban Outfitters and Anthropologie, the plaintiff alleged she was subjected to a hostile work environment at three different store locations and over the course of more than a year, ending in September 2013. But, the plaintiff did not file a charge of discrimination with the EEOC until December 2013. The trial court ruled that the everything that happened from before 300 days before the EEOC charge was filed, would not be considered.

On appeal, the Second Circuit Court of Appeals held that, based on Supreme Court precedent, if at least one hostile act takes place within the 300 day period, then other acts which happened outside the 300 days remains actionable, meaning an employee can sue based on that conduct. Further, the Second Circuit emphasized that acts from outside the limitations period can also be used as background evidence to support a timely claim. Based on these holdings, the appellate court ruled that all of the conduct which plaintiff alleged constituted a hostile work environment was timely for statute of limitations purposes.

The Court next looked at retaliation claims. The Second Circuit re-affirmed the principle that adverse employment actions for retaliation claims are different from retaliation claims. For discrimination claims, adverse employment actions must be a change in the terms and conditions of employment, such as a termination, demotion, or decrease in salary. For retaliation claims, however, the Supreme Court’s standard is lower. For retaliation, adverse employment actions consist of an act which is materially adverse such that it would dissuade a reasonable worker from making a discrimination claim.

The Court made one other observation in the decision concerning the standard for summary judgment motions. Typically at the end of discovery for an employment lawsuit, a defendant will make a motion for summary judgment. In a summary judgment motion, the defendant basically asks the judge to dismiss the case because the plaintiff’s evidence cannot establish discrimination or retaliation. For these types of motions, courts must view the evidence in a favorable light for the employee. In plain English, if the employer and employee provide contradicting evidence, the court must believe the employee’s evidence.

In Davis-Garett, the Second Circuit hammered home the point that courts cannot make credibility determinations so the trial court was compelled to believe the employee’s sworn statements about what happened to her. Moreover, for hostile work environment claims, trial courts must review the workplace conditions in totality and not piecemeal. Further, when viewing comments in the context of the workplace as a whole, some comments which may appear neutral and non-discriminatory, may then be viewed as discriminatory, such as neutral seeming comments.

In sum, in Davis-Garett, the Second Circuit Court of Appeals decided three important issues concerning workplace discrimination and retaliation claims in New York. First, acts which happened outside the 300 day statute of limitations period can be used to support a hostile work environment claim and can also be used as evidence of discrimination. Second, adverse actions for retaliation claims have a lower standard than adverse actions for discrimination claims. Third, when reviewing summary judgment motions in employment cases, trial courts must credit the employee’s evidence and view that evidence in its totality and not piecemeal.

If you have questions about the statute of limitations for employment discrimination cases, adverse employment actions, hostile work environments, or summary judgment, contact a Long Island employment discrimination and retaliation lawyer at Famighetti & Weinick, PLLC. Our website is http://linycemploymentlaw.com and our phone number is 631-352-0050.

Statute of limitations in employment cases

Courts have long stated that their role is not to keep workplaces civil. So, many employees may believe their bosses and/or coworkers are mistreating them, but the law would not regard the conduct as unlawful. Employment laws only prohibit abusive conduct which is directed at employees based on the employee’s protected characteristics, such as sex, gender, race, or national origin. Moreover, the conduct must be severe or pervasive. The legal definition of severe of pervasive has been settled for a while, but because it’s a somewhat of a nebulous definition, courts and lawyers sometimes have trouble discerning when conduct meets that standard.

In Fox v. Costco, decided on March 6, 2019, the Second Circuit provided insight into questions. First, can an employee claim he subjected to a hostile work environment based on a disability? Second, what kind of conduct can be severe or pervasive. Let’s take the questions in turn.

Title VII is the employment discrimination statute which prohibits discrimination based on sex, gender, race, national origin, and religion. The Supreme Court has, on several occasions, determined that discrimination under Title VII includes when an employee is subjected to a hostile work environment. But, the Supreme Court has not considered whether the disability statute, the ADA, also allows employees to bring claims of a hostile work environment.

The Second Circuit, New York’s federal court, has not decided the question either. But, other appellate courts across the country have decided that the ADA prohibits hostile work environments based on disability. In Fox, the Second Circuit agreed with these other appellate courts and similarly concluded that the ADA prohibits hostile work environments. The court was persuaded by the other appellate courts’ reasoning, but also agreed independently that since the ADA borrowed Title VII’s language, and the Supreme Court has read Title VII to mean that hostile work environments are unlawful, then the ADA similarly prohibits hostile work environments.

Fox, though, faced another hurdle. His claims were dismissed by the trial court because the judge determined that the conduct he faced was not severe or pervasive. To be severe, a single incident must be “extraordinarily severe.” In other words, one derogatory comment may not be enough, but a sexual assault should be more than sufficient. But, conduct can also be pervasive, if it was continuous enough to alter the employee’s working environment. So, one derogatory comment may not be enough, but if an employee faces derogatory comments every day over the course of months, the conduct be pervasive.

In Fox, the employee testified that his co-workers made comments mocking his tourette syndrome. He further testified that the co-worker’s mocked him “for months and months.” The trial court dismissed the claim because the judge believed the law required Fox to establish the number of time he heard the comments in a shift or per week. But, the Appellate Court said this was the wrong standard. The court said the employee is not required to identify the specific shift, week or month when he heard the comments and his testimony that the conduct persisted for months and months was sufficient.

The court was also persuaded to rule in Fox’s favor because his supervisor’s heard the comments and did nothing. Thus, the conduct could be imputed to the employer, another necessary showing for a hostile work environment case.

The Fox case provides a thorough analysis of the level or proof an employee needs to prove a hostile work environment claim. It also settles the question of whether a hostile work environment claim can be asserted under the ADA.

If you have questions about a hostile work environment, the Fox decision, or disability discrimination laws, contact a Long Island disability discrimination lawyer of Famighetti & Weinick PLLC at 631-352-0050. Our website is http://linycemploymentlaw.com.

ADA Hostile Work Environment

In Parker v. Reema Consulting Services, the plaintiff was initially hired to a low level warehouse position with the company. But, in the course of two years, the plaintiff, a female, was promoted several times, eventually to an assistant manager position. Within weeks of this promotion, male employees began circulating rumors that the plaintiff had a sexual relationship with a high ranking manager, and that she entered into the relationship for the purpose of obtaining the promotions. The rumors started from a male employee who was jealous about the plaintiff’s quick rise to her position.

The plaintiff met with the highest ranking manager at her location to discuss the matter. At the meeting, the manager blamed the plaintiff for “bringing the situation into the workplace,” and warned her that he could not recommend her for any further promotions because of the rumor. He specifically stated she would not progress any higher in the company because of the rumor.

A few days later, the plaintiff and the manager met again. At this meeting, the manager blamed the plaintiff for the rumors and threatened that he could have fired her for “huffing and puffing about this BS rumor.” The manager allegedly lost his temper at the meeting.

Afterwards, the plaintiff made a sexual harassment complaint against the manager and co-worker. Her co-worker who started the rumor, also made a complaint against the plaintiff.

Ultimately, human resources and management met with the plaintiff. They issued her two written warnings, then terminated her based on insubordination to the manager, and based on the co-worker’s complaint against her.

Parker filed a lawsuit in the United States District Court for the District of Maryland. The District Court, however, did not believe that these circumstances constituted unlawful sex discrimination or retaliation under Title VII because the allegations related to her conduct, not her sex or gender.

On appeal, the Fourth Circuit disagreed. The appellate court determined that the rumor was started because the co-worker was jealous that the plaintiff “used her womanhood” to “seduce” a promotion. The Court was concerned that this allegation implicates a “deeply rooted perception” that women use sex for promotions. Thus, the rumor was a sex based stereotype and so it was illegal under Title VII. Indeed, in a concurring opinion, one judge wrote that this conduct shows that the plaintiff was “treated with less dignity because she is a woman.”

Moreover, the Circuit Court determined that the conduct satisfied Title VII’s requirement that the offensive conduct be severe or pervasive. The Court found that the conduct preoccupied the plaintiff and management from the time of her last promotion, until her termination, and that management participated in the harassment. Moreover, the harassment was humiliating and interfered with the plaintiff’s work. Accordingly, the plaintiff adequately showed a hostile work environment.

Finally, the Court determined that the plaintiff adequately showed retaliation. Because the harassment she faced was unlawful, when she complained about it, her complaint was protected under the law and the company could not have taken action against her for making the complaint.

At Famighetti & Weinick PLLC, we often hear from potential clients about similar circumstances concerning false rumors about co-workers having sex with managers. If you are a victim of a workplace rumor, if you have questions about sexual harassment or a hostile work environment, or if you have questions about the Parker decision, contact one of our employment lawyers at 631-352-0050 or visit our website at http://linycemploymentlaw.com.

sex rumors in the workplace

Personal injury law applies when employees are hurt or injured in the workplace. In New York and on Long Island, workers compensation law covers situations where employees are hurt at work. Under workers compensation, employees generally cannot sue their employers for workplace injuries. Because many people are familiar with the concept of workers compensation, they believe that the rule prohibiting lawsuits based on workplace injuries applies to all workplace matters.

But, workers compensation does not act as a prohibition against all lawsuits relating to the workplace. Even in the world of personal injury, sometimes employees can still pursue lawsuits based on injuries incurred in the workplace. For example, employees injured from construction site accidents may be able to sue the property owner or a general contractor. Further, employees injured in a car accident may be able to sue the other driver. Similarly, if a worker is injured on property which does not belong to the employer, the worker may be able to sue the property owner. Also, New York’s scaffolding law protects employees working with ladders, or otherwise working at heights. Before concluding that you cannot recover for your workplace injuries in court, it’s best to consult with an experience employment lawyer or a personal injury lawyer.

Workers compensation also does not apply to employment discrimination, retaliation, hostile work environment, sexual harassment, and wage and hour violations. So, for example, an employee who has faced sexual harassment in the workplace may sue her employer based on that unlawful conduct. The employee may have to first file a charge of discrimination in an administrative agency, such as the EEOC or New York State Division of Human Rights, but that requirement does not act as a complete bar to suing the employer.

In sum, the idea that employees cannot sue their employers is somewhat of a myth, although that rule does apply in some situations, usually relating to workplace injuries. But, victims of employment discrimination or retaliation may bring claims against their employers, including by suing the employer in court.

Employment law can be complex. Moreover, whether the employee’s claim is based on personal injury or employment discrimination, the claims may be subject to strict time limits which can bar the employee’s claim, altogether. Employees who believe they have a legal claim against their employer, who have been injured at work, or who have faced unlawful discrimination, retaliation, or sexual harassment, should speak with experienced employment lawyer as soon possible.

The Long Island employment lawyers of Famighetti & Weinick PLLC are available by email, phone at 631-352-0050, Facebook, and on the internet. If you have questions about employment law, workplace injuries, or other workers’ rights concerns, contact us today.

Can i sue my employer

The age discrimination and retaliation case was brought on behalf of one of the bank’s traders. According to the allegations in the case, the trader had been successfully working on Wall Street for decades. Then, co-workers and supervisors began subjecting the trader to a hostile work environment based on his age. The abusive conduct consisted of age based jokes and comments, some of which were documented in e-mails. The complaint filed with the New York State Division of Human Rights detailed other improper hostile workplace conduct directed at the trader based on his age.

Further, the trader complained about the age discrimination on multiple occasions, also at times in writing. Despite these complaints, the hostile work environment continued. The trader opposed other unlawful discriminatory conduct in the workplace and after one such time, a supervisor threatened to run the trader out of the company. Indeed, soon after these complaints, the bank issued a poor performance evaluation to the trader and removed from him many of his top accounts. The complaint alleged that the reasons the bank gave the trader for removing the accounts were demonstrably untrue. Ultimately, the bank terminated the trader’s employment.

On the trader’s behalf, the employment lawyers at Famighetti & Weinick PLLC filed a complaint with the New York State Division of Human Rights. The Division is responsible for investigating claims of workplace discrimination and retaliation. The complaint alleged that the investment bank engaged in unlawful age discrimination by subjecting the trader to a hostile work environment and terminating him under circumstances which infer age discrimination. Further, the complaint alleged that the bank retaliated against the trader for making his complaints of age discrimination and for opposing other unlawful behavior in the workplace.

The New York State Division of Human Rights investigated the claims over the course of several months, including interviewing the trader. Famighetti & Weinick PLLC submitted evidence and a detailed statement arguing the legal basis for finding that the bank engaged in discrimination and retaliation.

The Division then issued a decision determining that probable cause exists to support the allegations of the complaint. Next, the Division will schedule a public hearing which is the equivalent of a trial. At the public hearing, Famighetti & Weinick PLLC’s employment lawyers will present evidence to prove the discrimination, retaliation, and damages, and an administrative law judge will decide the case.

The Long Island age discrimination lawyers at Famighetti & Weinick PLLC are experienced in prosecuting claims of age discrimination and retaliation at the New York State Division of Human Rights, at the EEOC, and in state and federal courts. Our employment lawyers help employees through the process of filing a complaint with the State Division, through the investigation process, and at a trial or public hearing.

For more information about age discrimination, retaliation, public hearings, or the New York State Division of Human Rights, contact one of our Long Island employment attorneys at 631-352-0050. We are available on the internet at http://linycemploymentlaw.com.

Probable cause determined in age discrimination case

Sexual Harassment Cases

For many reasons, victims of sexual harassment are often reluctant to bring their stories to light and to seek justice for the abuse they faced. One of the reasons victims are reluctant is that sexual harassment cases are often he said, she said, so victims are afraid that they won’t be believed. Perhaps a more troubling reason is that victims are worried that by making their claims public, their careers and/or reputations will be hurt.

At Famighetti & Weinick, PLLC, we often hear these concerns when we’re counseling our clients about their options for seeking redress as a victim of sexual harassment. One of the options we offer is by seeking a resolution in a private and confidential manner, such as mediation. Through a private resolution means, like mediation, the parties are comfortable knowing that they can craft a resolution which achieves their objectives, and that the result and the process of reaching that resolution, will remain private and confidential. This often a relief for sexual harassment victims who are concerned about publicly fighting their case.

The “Weinstein” Provision in the New Tax Code

The Harvey Weinstein scandal coming out of Hollywood has shed light on the epidemic of sexual harassment in the workplace. The bravery of the women coming forward has inspired many other victims to come forward, including victims of sexual harassment in Washington D.C. With these stories coming to light, attention has also be drawn to the fact that many victims reached private settlements with the accused. These agreements often entail a payment of money to the victim, in exchange for an agreement that the allegations and the payment will remain confidential. Additionally, because these payments are often made by corporations, the payments were often considered business expenses, meaning corporations would not pay taxes on these payments. The tax code also allowed victims to deduct attorneys’ fees from taxable income.

According to the New York Times, Senator Robert Menendez said “I think most Americans would be outraged to know they that are subsidizing sexual predators in the tax code.” So, the new tax code contains a provision which has come to be known as the “Weinstein Provision.” The provision reads:

“No deduction shall be allowed under this chapter for — (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.”

In other words, payments made to sexual harassment victims are not tax deductible if the agreement to pay is included as part of a confidentiality agreement. But, attorneys’ fees’ are also not deductible.

Tax Consequences for Sexual Harassment Victims

The “Weinstein” Provision is likely to have little effect on huge corporations. The benefit of confidentiality outweighs any potential negative tax implications, particularly in light of the other cuts set forth by the new tax code. The new provision, however, may have serious implications for smaller businesses and sexual harassment victims. For smaller businesses seeking confidentiality, the tax implications may not justify including a confidentiality provision. Oftentimes, sexual harassment defendants will settle a claim solely to obtain confidentiality. Because many sexual harassment cases are he said she said, defendants feel confident about putting their credibility up against the victim’s. So, defendants may choose to take more sexual harassment cases to trial. With the uncertainty of trials, many more victims of sexual harassment stand to go uncompensated for the abuse they faced.

Additionally, the new provision can be read so as to penalize victims. Previously, attorneys fees for sexual harassment victims were not taxable. The new provision does not distinguish between the victim’s attorney’s fees and the accussed’s attorneys’ fees. The victim usually pays her attorney a portion of any settlement amount. Now, the tax code can be interpreted as requiring the victim to pay taxes on the total settlement, even though she did not receive the entire amount, because a portion was paid to her attorneys. Thus, the tax code seems to punish victims who must choose to between taking a payment and maintaining confidentiality, or turning down confidentiality and taking her chances in a courtroom. Moreover, it is sometimes the victim who also wants confidentiality, so the premise that only a defendant is pushing for it, is false.

Long Island Sexual Harassment Lawyers

Famighetti & Weinick, PLLC are Long Island sexual harassment lawyers. Today’s blog was for informational purposes only and should not be used as tax or legal advice. If you have further questions about sexual harassment or the implications of the new tax code on sexual harassment settlements, contact a Long Island employment at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.