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Ray
Ray, Employment lawyer
Category: Employment Law
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Experience:  30 years in Employment law
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What are the elements that need to be proven in a wrongful

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What are the elements that need to be proven in a wrongful termination in retaliation complaint for gender discrimination in the state of new york?
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: New York
JA: Is the employment agreement "at will," union, full time or part time?
Customer: At will
JA: Anything else you want the lawyer to know before I connect you?
Customer: no

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

You want to file a charge with EEOC

https://www.eeoc.gov/employees/charge.cfm

The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. Asserting these EEO rights is called "protected activity," and it can take many forms. For example, it is unlawful to retaliate against applicants or employees for:

  • filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
  • communicating with a supervisor or manager about employment discrimination, including harassment
  • answering questions during an employer investigation of alleged harassment
  • refusing to follow orders that would result in discrimination
  • resisting sexual advances, or intervening to protect others
  • requesting accommodation of a disability or for a religious practice
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

EEOC will investigate and hopefully issue a right to sue based on retaliation here.

I appreciate the chance to help you tonight.Thanks again.

If you can positive rate 5 stars it is much appreciated.

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A retaliation claim challenging action taken because of EEO-related activity has three elements:

  • (1) protected activity: "participation" in an EEO process or "opposition" to discrimination;[15]
  • (2) materially adverse action taken by the employer; and
  • (3) requisite level of causal connection between the protected activity and the materially adverse action.
Customer: replied 1 month ago.
Thanks. But, if I am filing a complaint under NY law, not federal law, are the elements the same?

The elements are the same here. You can seek damages including reinstatement, lost pay, etc.

Ray and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 month ago.
Thanks!

Have a great evening and bye for now.

Customer: replied 1 month ago.
To file a case for wrongful termination in retaliation in state court for gender discrimination and protected activities under the EEOC guidelines, does a plaintiff have to file a claim with the EEOC first?

No you can just sue here. You are not required to go through EEOC.

EEOC if you go through them would be in federal court.

More

For certain types of discrimination and civil rights violation allegations, you MUST file a claim or complaint with a federal or state agency BEFORE you file any private lawsuit in court, and these agencies typically set strict time limits for claim filing. For example, for allegations involving almost all types of employment discrimination, the charging party(i.e. an employee alleging discrimination) must file a complaint with the Equal Employment Opportunity Commission (EEOC) before filing any private lawsuit, and must do so within 180 days of the alleged offense. Only after receiving permission from the EEOC may individuals file alawsuit. This permission typically comes in the form of a "right to sue" letter issued by the EEOC, usually only after the EEOC has found sufficient evidence that a civil rights violation has occurred.

State agencies may also investigate a complaint for civil rights violations or discrimination, and may work alongside (or in place of) a federal agency. For example, employees who allege job discrimination in California may file a complaint with the California Department of Fair Employment and Housing. As part of its standard procedure, that state agency will usually send the complaint to the EEOC at the federal level, so that it becomes a "dual filing."

An experienced civil rights attorney will be able to tell you whether filing a government claim will be necessary in your case.

Lawsuits in Federal and State Court

Once you decide to file a lawsuit for a civil rights violation, one of your first considerations will be where to file: in federal or state court. Depending on the specifics of your case, the choice may be yours, or your options may be dictated by a statute. For example, a federal statute (42U.S.C. section 1981a) specifically permits a private lawsuit for money damages for any employee who has been the victim of intentional discrimination in employment. So, if you believe you have a claim for intentional discrimination in employment, file a lawsuit in federal court. But, depending on where you live, your state may have a similar law, allowing you to choose where to file your lawsuit (in state or federal court).

Customer: replied 1 month ago.
I am confused. Your first answer said, "No you can just sue here. You are not required to go through EEOC." But, your fourth answer was long and said, "For certain types of discrimination and civil rights violation allegations, you MUST file a claim or complaint with a federal or state agency BEFORE you file any private lawsuit in court, and these agencies typically set strict time limits for claim filing. "In New York, can I sue for wrongful termination in retaliation for complaining about gender discrimination without first filing a complaint with the EEOC or state agency?

You would be limiting yourself in state court.The reason people file with EEOC is because if they find in your favor you get a right to sue letter and can sue in federal court for EEOC federal discrimination.

If you have a violation of state lawyer here it is possible to skip EEOC and federal court.

Reference

iscriminatory Firing

Under federal law, it is illegal for an employer to firean employee based on a protected characteristic. Federal lawprohibits employers from firing employees based on race, color,national origin, sex, pregnancy, religion, age (if the employee is at least 40),disability, citizenship status, or genetic information. However, only employerswith a minimum number of employees must comply with these laws. Most types ofdiscrimination are prohibited once an employer has at least 15 employees. However, for age discrimination the minimum is 20 employees, and for citizenship status discrimination the minmum is four employees.

New York law prohibits employment discrimination based on race,color, national origin, sex, pregnancy, religion, age (18 and older), disability, geneticinformation, sexual orientation, marital status, gender identity, arrest and conviction record, militarystatus or service, observance of Sabbath, political activities, unemployment status, or status as a victim of domestic violence. New York employers must comply with these laws if they have at least four employees.

These laws also make it illegal for an employer to retaliateagainst you for asserting your rights. For example, if you complain to yourcompany’s HR department that you believe you were passed over for promotionbecause of your age, your employer may not discipline or fire you for yourcomplaint. Likewise, your employer cannot fire you for participating in an investigation of a discrimination complaint (no matter who made the complaint), testifying in court, or making other efforts to stop discriminatory practices.

Before filing a discrimination or retaliation lawsuit, you must file a complaint with the appropriate government agency. The New York Division of Human Rights enforces the state’s laws prohibiting discrimination. In many cases, state fair employment practices agencies will record your complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal antidiscrimination laws. However, you should check to make sure. If not, you may also have to file a complaint with the EEOC; you can find contact information for the nearest office at the EEOC’s Field Offices page.

Breach of Contract

If you have a written employment contract promising you jobsecurity, you are not an at-will employee. New York also recognizes employment contracts based on oral promises supported by documentation or statements in an employee handbook, which an employee reasonably relied upon. For example, if your employee handbook says that you won't be fired unless certain disciplinary steps are taken, your employer may have to follow the promised steps before firing you. If you have an employment contract, and your employer fires you without good cause, you have a legal claim for breach of contract.

Wage and Hour Issues

New York Employees are entitled to a minimum wage of $8.75 per hour in 2015 and $9 per hour in 2016. Under federal and New York law,employees who work more than 40 hours a week are eligible for overtime. New York also gives employees the right to an unpaid meal break. The time and length of the break depends on the type of work. Employees who work in retail or for a commercial business are entitled to a 30-minute meal break, while factory employees are entitled to a 60-minute meal break. Under federal law,employers who choose to offer breaks of 20 minutes or less must pay employees for that time. Employers also must pay their employees for any time during whichthey must work, even if the employer characterizes that time as a “break.” It is illegal for employers to discriminate against employees who assert their rights under wage and hour laws. For more information, see New York Wage and Hour Laws.

Time Off Work

State and federal laws give employees the right to take time off work for certain civic obligations and personal responsibilities. Employers may not discipline or fire workers for exercising these rights. In New York,these rights include:

  • Military leave. Under federal law, employeeshave the right to take up to five years of leave to serve in the military, withthe right to be reinstated when they return to work. (This law also prohibitsdiscrimination against employees based on their military service, protectsemployees from discharge without good cause for up to one year after theyreturn from military duty, and provides other protections; see Nolo’s article TakingMilitary Leave for more information.) Under NewYork law, members of the U.S. Armed Forces or organized militia may take unpaidleave for active service, reserve drills or annualtraining, service school, or initial full-time or active duty training, with reinstatement when service is complete. Once reinstated, an employeemay not be fired without cause for one year. New York also prohibitsdiscrimination against employees who are subject to state or federal militaryduty.
  • Jury duty. In New York, employees are entitledto leave for jury duty. Employers with 11 or more employees must pay the first $40 of wages for the firstthree days of an employee’s jury service. Employers who fire or penalize employees for jury duty may be subject tocriminal sanctions.
  • Voting. Under New York law, employees areentitled to take up to two hours of paid leave to vote, unless the employee hasfour consecutive non-work hours when the polls are open before a shift startsor after it ends.
  • Family and medical leave. New York employees areprotected by the federal Family Medical Leave Act (FMLA). The FMLA requires employers with 50 or more employees to provide eligible employees with up to 12weeks off, unpaid, every year for a serious health condition, to carefor a family member with a serious health condition, to care for a new child,or to handle certain practical matters arising out of a family member’smilitary service. Employees can take up to 26 weeks off in a single year tocare for a family member who is seriously injured while serving in themilitary. Employees who take FMLA leave must be reinstated to the same position once their leave is over. (To learn more, see Nolo’sFMLA page.) New York law requires that employers make the same leave available to adoptive parents as they do to biological parents. New York is also one of a handful of states that offers a temporary disability insurance program, which pays employees a percentage of their usual wages while they are temporarily unable to work because of a disability (including pregnancy). For more, see New York Family and Medical Leave.
  • Military spouse leave. Employers with 20 or more employees must provide employees with up to ten days of unpaid time off each year to spend time with a spouse who is on leave during a militarydeployment.
  • Other protected leave. New York also provides time off for a variety of other reasons, including blood donation (employers with 20 or more employees), bone marrow donation (employers with 20 or more employees), and domestic violence (employers with four or more employees).

    Other State Claims

    • Workers' compensation. Employers may not fire or otherwise retaliate against employees because they file workers' compensation claims.
    • Workplace safety. Employers are prohibited from discriminating against employees who make complaints of workplace safety violations, testify in related legal proceedings, or exercise any legal rights under workplace safety laws.
    • Whistleblowing. Employers cannot fire an employee for reporting, or threatening to report, illegal activity at the workplace; participating in a government investigation or testifying in a hearing; or refusing to participate in illegal activity.
    • Off-duty conduct. Employers may not fire employees who use lawful products, or engage in legal activity, while off-duty and away from the workplace.

    It would be to your advantage to file with EEOC,their findings can help your suit and employer may be more likely to settle without a federal lawsuit.

    Customer: replied 1 month ago.
    Thanks. Follow-Up question on whistleblowing. Your email said, "Whistleblowing. Employers cannot fire an employee for reporting, or threatening to report, illegal activity at the workplace; participating in a government investigation or testifying in a hearing; or refusing to participate in illegal activity." If an employee declined to participate in an activity that violated SEC regulations, and her employer ended up not violating SEC regulations, then the employee would not have a whistleblower complaint, correct? My understanding is the illegal activity actually has to occur, correct?

    Thats correct here.

    Customer: replied 1 month ago.
    Thanks.

    You are so welcome thanks for rating 5 stars at top of page.