Can I Sue My Employer for Discrimination?

If you feel that you are being treated by your employer differently because of a particular characteristic that you possess, you are probably wondering, “can I sue my employer for discrimination?” The answer is, yes, you can sue your employer for discrimination.

However, suing your employer for discrimination involves a series of legal and complex analyses that will determine whether you need to exhaust administrative remedies, where to file, your time limitations to file, and even the damages you are entitled to. Here, we will guide you towards the complex steps needed to complete your legal analysis in determining how to sue your employer for discrimination.

Protected class or characteristic

In determining whether you can sue your employer for discrimination, you first need to determine what the reason for discrimination is, and whether this reason for discrimination is due to being in a protected class or characteristic that will allow you to sue under laws against discrimination.

There are laws on both the federal level and the state level that prohibits certain forms of discrimination. Sometimes, one form of discrimination can be a violation of both federal and state law. Sometimes, it is only a violation of state law. This might make it confusing, so it’s always advisable to consult with an employment discrimination attorney who can help you with your case and your analysis. In New York, it is recommended to file an employment discrimination complaint under state law for reasons to be discussed later.

Under federal law, the following are protected classes:

Race, color, religion, sex (gender or sexual orientation), or national origin (Title VII of the federal Civil Rights Act of 1964)
Employee complaining about illegal discrimination, prohibition against retaliation (Title VII of the federal Civil Rights Act of 1964)
Persons 40 and older (Age Discrimination in Employment Act)
Persons with disabilities (Title I and Title V of the federal Americans with Disabilities Act of 1990)

Under the New York State Human Rights Law (NYSHRL), the following are protected classes in employment:

Age
Race
Creed
Color
National origin
Sexual orientation
Gender identity or expression
Military status
Sex
Disability
Genetic predisposition
Familial status
Marital status
Domestic violence victim status
Employee complainant about illegal discrimination
Arrest or conviction record
Employee complaining about illegal discrimination, prohibition against retaliation

Under New York City Human Rights Law (NYCHRL), the following are protected classes in employment:

Actual or perceived age
Race
Creed
Color
National origin
Gender
Disability
Marital status
Partnership status
Caregiver status
Sexual and reproductive health decisions
Sexual orientation
Uniformed service
Immigration
Citizenship status
Arrest or conviction record
Caregiver
Credit history
Pre-employment Marijuana Testing
Unemployment status
Sexual and Reproductive Health Decisions
Salary History
Status as a victim of domestic violence, stalking, and sex offenses
Employee complaining about illegal discrimination, prohibition against retaliation

As you can see, these laws on human rights may overlap, which would allow one violation to be covered by both state law and federal law, such as employment discrimination against race. In New York, there is work-sharing arrangement that allows you to file your complaint under federal law with the Equal Employment Opportunity Commission (EEOC), which can be considered cross-filed (or dual-filed) under state law with the New York State Division on Human Rights (NYSDHR) and New York City Commission on Human Rights (NYCCHR).

Discriminatory practices

Under federal law, discriminatory practices include showing a bias against a protected class in job advertisements, recruitment, application and hiring, job referrals, job assignments and promotions, pay and benefits, discipline and discharge, employment references, reasonable accommodation and disability, terms and conditions of employment.

Under NYSHRL, the following are discriminatory practices:

To refuse to hire, to bar from, or to dismiss from employment on the basis of the protected classes
To discriminate in compensation, terms, conditions, or privileges of employment on the basis of the protected classes

Under NYCHRL, the following are discriminatory practices:

Discriminatory practices under NYSHRL; and
To represent that any employment or position is not available when in fact it is available.

Employer coverage on discrimination claims

For claims under federal law, the EEOC handles the following:

Claim against equal pay: at least one employee
Claim against discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, and genetic information (including family medical history): at least 15 employees
Claim against discrimination based on age: at least 20 employees

For claims under New York state or city human rights law:

All employers are covered and there is no more minimum requirement of having at least 4 employees under the new amendment effective February 8, 2020.

How to file your claim for discrimination

Federal claims

If you’d like to file a claim on the federal level, you need to exhaust your administrative remedies and file a claim with the Equal Employment Opportunity Commission (EEOC) first. The EEOC will usually require the parties to mediate. If the dispute is not resolved through mediation, the EEOC will investigate your claim.

Notice of right to sue

If more than 180 days have passed since you filed your claim, the EEOC is required by law to give you a Notice of Right to Sue when you ask for it even without concluding their investigation. If less than 180 days have passed since you filed your claim, the EEOC will only give you the Notice of Right to Sue if they cannot conclude their investigation within 180 days.

This notice allows you to file your lawsuit with the federal courts within 90 days from receipt of this notice. The EEOC can also decide to file the lawsuit in your behalf, but in practice, EEOC litigates only a small percentage of the charges filed.

You can bypass the EEOC for federal claims if you plan to file an age discrimination lawsuit or a lawsuit under the Equal Pay Act.

New York state and city claims

For employment discrimination claims under New York state and city law, you can file your claim with the New York State Division of Human Rights or New York City Commission on Human Rights.

If you file your claim with these agencies, you waive your right to file your claims in court. The hearings will be conducted by an administrative law judge who has the power to make a decision and to enforce that decision.

However, unlike the EEOC, you can bypass filing your claims with these New York agencies and file your claim directly with the courts.

Statute of limitations

The statute of limitations provides for the period to file your complaint from the time the employer committed the discriminatory conduct.

For claims under federal law with the EEOC, you have 180 calendar days from the time of the discriminatory conduct to file your charge. If the same discriminatory conduct is also a violation of state law, the period to file is extended to 300 calendar days.

For claims filed with the New York State Division of Human Rights or New York City Commission on Human Rights, you have one (1) year from the time of the discriminatory incident to file your charge.

For claims under New York State and City Human Rights Law to be filed with state courts, you have three (3) years from the time of the discriminatory act to file the complaint with the New York State Supreme Court.

Damages for employment discrimination

When you sue your employer for discrimination, you can ask for back pay, reinstatement, compensatory damages, punitive damages, liquidated damages, attorneys’ fees, and other court fees and legal costs.

Back pay refers to your wages, benefits, and bonuses that you would have earned without the discrimination.

Reinstatement refers to your return back to work if you were fired.

Compensatory damages are designed to compensate you for out-of-pocket expenses such as lost wages, the cost of finding a new job, emotional pain, and distress.

Punitive damages are meant to punish the employer for their gross negligence, recklessness or conscious disregard of your rights. This may be awarded when you first notify your employer of the discriminatory conduct, and the employer does nothing about it. This would reflect your employer’s gross negligence or conscious disregard of your discriminatory complaint.

Liquidated damages are usually granted in lieu of the other damages and range up to double the amount of back pay.

If you are successful in your discrimination complaint, attorney’s fees, court fees, and other legal costs are awarded in your favor, in contrast to the American rule that every party pays for their own attorney’s fees, regardless of who wins.

Evidence to support your claims

Your claim of discriminatory acts must be supported by evidence. Evidence usually consists of witness testimonies, documents, texts, emails, and other proof of prior discriminatory conduct.

When asking can I sue my employer for discrimination, you have to keep in mind that each basis for discrimination will have different elements that you need to prove. For example, for sexual harassment, you must prove that the employer’s actions provided a severe and hostile environment for you to continue working in. For allegations of discriminatory treatment based on age, you may offer evidence that other employees of your age were terminated at the same time. For terminations based on discrimination, you have to show the absence of a plausible explanation for the employment decision.

Your employment discrimination lawyer will work with you on the type of evidence that needs to be gathered to prove your complaint.

Why is it better to file an employment discrimination claim under New York state law

The new amendments to the New York State Human Rights Law provide a more liberal construction than federal law on analyzing standards of discrimination.

For example, under federal law, to establish sexual harassment, you have to prove that the employer subjected you to a hostile work environment that is so severe or pervasive that it altered your terms and conditions of employment. Under New York state law, harassment does not need to be “severe or pervasive” anymore. Instead, employers cannot be held liable only if the conduct is of a “level that a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial conveniences.” Thus, the standards are lower under state law to prove harassment.

In addition, under federal law, an employer can raise the affirmative defense that the employee failed to use the internal complaint procedure to report a harassment claim. Under state law, this defense is not available.

Because of the more favorable conditions provided for an employee under New York state law, it is recommended to file your employment discrimination claims under New York law rather than federal law.

Retaliation and possible effects of filing an employment discrimination claim

When you file an employment discrimination claim, the employer is prohibited from retaliating against you. Retaliation includes demoting you, giving you reduced hours, or firing you.

The employer, however, will try to find ways to make your life uncomfortable that would make you decide to just resign. On the other hand, your employer might try to justify firing you by saying your performance is poor. Your employer will try to discredit you and not give you a favorable reference when you try to find a new job, damaging future employment prospects.

To prevent this from happening, your lawyer should always advocate for a quick and amicable out-of-court settlement with a non-disclosure clause.

Suing your employer for discrimination is a major decision that can affect future employment prospects. You need to consult with an employment discrimination lawyer to ensure that your complaint is adequately supported with evidence and that you will be well represented in negotiations with your employer, and ultimately, with the applicable administrative agency or court.

Should you need representation, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].