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How to Spot the #1 Sign of a Hostile Work Environment

January 29, 2018
Hostile Work Environment

As a legal practitioner, I can’t count the number of times I’ve had to clarify exactly what constitutes a hostile work environment. When it comes to employment discrimination, there are several laws intended to protect employees.

In addition to city and state laws, which vary in strength and scope, there are many federal laws that offer this protection as well; most notably Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1967, the Age Discrimination in Employment Act, the Genetic Information Non-Discrimination Act and the Equal Pay Act.

Courts have repeatedly opined that these laws are not general civility codes, meaning — no matter how unfortunate — the law does not protect against generally rude or undesirable behavior at work.

You can’t sue your boss just because he’s a jerk. No, the conduct that city, state and federal anti-discrimination laws protect against must be related to a class protected by those statutes.

In other words, the unwelcome conduct must target a protected class, most commonly: sex/gender, race, religion, age, disability, national origin, veteran status, domestic violence victim status and so forth. In some states, sexual orientation is also a protect class.

The term “hostile work environment” carries legal significance that goes beyond workplace unpleasantness or even general bullying. For a hostile work environment to exist, there must be an overarching protected class.

In other words, when an employee alleges they’ve been subjected to a hostile work environment, it must be related to — and a direct result of — a group that is protected by a state or federal statute.

One’s civil rights (and individual employment) must be threatened as part of the offensive conduct.

Hostile Work Environment

What isn’t a hostile work environment?

Before discussing the number one sign of a hostile work environment, it helps to discuss conduct that does not constitute a hostile work environment.

Cursing, casual joking, rudeness, petty slights, nitpicking, bossiness and unpleasant behavior, on its own, are not enough to bring a hostile work environment claim.

A supervisor or coworker who routinely antagonizes most or all employees in the workplace, regardless of who they are, will likely not be found to be creating a hostile work environment.

Why? Because the conduct is done indiscriminately, i.e. without regard for a protected class.

In fact, a common defense for employers in employment discrimination cases, particularly those involving managers or supervisors, is that the alleged bad actor did not engage in discrimination, but was simply a “stickler” or a “loose cannon” known for giving everyone a hard time.

An employer who routinely blows their lid, creates a threatening and intimidating work environment, and generally treats their employees poorly will be protected under the law if their conduct is deemed unrelated to a protected class.

This is a hard pill for many employees to swallow, particularly those who find themselves stuck in such volatile workplaces.

So, what constitutes a hostile work environment?

hostile work environment

As discussed above, a hostile work environment can only exist where the conduct allegedly targets a specific protected class or classes. For conduct and/or speech to rise to the level of a hostile work environment in these cases, the conduct must be intentional, severe or pervasive, and directly interfere with the employee’s ability to perform his or her job.

For workplace conduct to be deemed severe or pervasive, a court or investigating agency will utilize a “reasonable person” standard, asking whether a reasonable person would consider the alleged conduct to be intimidating, hostile or abusive.

Additionally, one-off occurrences of offensive behavior will generally not rise to the level of a hostile work environment.

The “stray remarks doctrine,” first set forth by the U.S. Supreme Court, and expounded upon by courts since then, has routinely been relied on to dismiss employment discrimination claims.

Exactly what constitutes a stray remark warrants its own discussion, but the typical analysis reviews who made the remark — a decision maker or not; the nexus between the remark and the employment decision at issue; the ambiguity of the remark or whether it could reasonably be deemed discriminatory; and the temporal proximity between the remark and the adverse employment decision.

So, what’s the number one sign of a hostile work environment?

Intimidation – the #1 sign of a hostile work environment.

Hostile Work Environment

While the signs of a hostile work environment vary, the number one sign of a hostile work environment, universal in all cases, is intimidation. Intimidation is the one factor unique to all hostile work environments and it takes many forms.

Bad actors may threaten discrimination victims, warning them not to report their conduct.

They may threaten an employee’s bonuses, income or job security.

They may turn other coworkers against the employee, essentially making them a workplace pariah with nowhere to turn.

But the intimidation can also be less explicit.

Even in instances where there is no express prohibition on complaining, victims are frequently intimidated to come forward and report the discrimination they’ve suffered.

They fear retaliation. They fear for their jobs. In extreme cases, they even fear for their lives.

The conduct they’ve endured may be so rampant throughout the workplace, they may worry just how far the harassment will extend and will feel they have nowhere to turn.

In some circumstances, particularly where the workplace is a municipality, government or law enforcement agency, an employee may truly feel they have no options since they’ve seen the dark side of unbridled authority and know firsthand that the checks and balances intended to stop unlawful behavior sometimes fail.

But even beyond those workplaces, intimidation and the fear it creates is a common thread. This is the very essence of employment discrimination.

Employees need their jobs, and the last thing they want to do is risk losing them.

In some situations, employees fear ever being able to work in their field again and worry their victim status or label as a “complainer” will follow them to other workplaces.

The fear to speak up and assert your rights is common, but so too is the threat of reprisal when an employee does come forward.

Though there are laws in place to protect against retaliation for exercising the rights granted by anti-discrimination laws, instances of retaliation are still common, and even where it is not, the fear of retaliation is strong.

Further, asserting your rights requires courage and the ability to navigate the legal system.

Many times, bad actors are betting on the fact that victims may not be up to the challenge of working with a hostile work environment attorney and bringing a legal claim.

If you believe you may be working in a hostile work environment, once all the legal boxes have been checked, trust your instincts.

If you feel too intimidated to speak up and exercise your rights, or if you have come forward to your employer with your concerns and you still feel the looming threat of retaliation or continued harassment, you may in fact be working in a hostile workplace.

A version of this article originally appeared on Fairygodboss. The full version can be viewed here.

Disclaimer: This blog does not provide legal advice and does not create an attorney-client relationship. Always contact an attorney directly if you are in need of legal advice.

If you found this post beneficial, you might also like 7 Signs it’s Time to Ditch Your Toxic Employer.

 

Law Working Parent

What You Need to Know About New York Paid Family Leave

December 6, 2017
Paid Family Leave

Chances are, if you live in New York State, you’ve heard about New York’s Paid Family Leave policies, which take effect January 1, 2018.

With this policy change, New York will join California, Washington, New Jersey, and Rhode Island as the only states in the U.S. offering a form of paid family leave.

This is, of course, great news for New York families who have until this point had to cobble time together for their leave, relying on pieces from disability insurance, FMLA, vacation time, and so forth.

This is also good news for employers since research shows paid family saves employers money.

There are several terrific resources out there for employers, employees, and healthcare providers to learn about what these changes mean for them. However, locating, navigating, and understanding this information can be a challenge.

It’s not my goal to re-invent the wheel, so in this post, I will be linking helpful resources and providing succinct explanations regarding what these changes mean.

Like my Working Parent Resources page, the goal is to create a library of resources along with the reasons they are helpful.

As always, although I am an attorney licensed in New York, this blog does not provide legal advice and does not create an attorney-client relationship. Always contact an attorney directly if you are in need of legal advice.

paid family leave

Paid Family Leave: What it Means for You

paid family leave

In general: New York’s Paid Family Leave program “provides wage replacement to employees to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service.” Source: New York State Paid Family Leave.

The program covers both men and women, meaning both mothers and fathers will be eligible for paid family leave.

These laws also guarantee that an employee can return to their job following leave and continue their health insurance.

How much leave does the law provide? New York’s Paid Family Leave is scheduled to phase in over four years, starting January 1, 2018 with up to 8 weeks of leave per year and resulting in up to 12 weeks of leave offered by 2021.

The New York Paid Family Leave website provides a chart of the official schedule on its “Timeline” page.

In sum, the length of leave will increase yearly in accordance with the following:

  • 2018: up to 8 weeks of leave
  • 2019: up to 10 weeks of leave
  • 2020: up to 10 weeks of leave
  • 2021: up to 12 weeks of leave

How much are employees paid while on leave? Wages will be capped based on the statewide average weekly wage. The wage percentage employees will receive under the law will start at 50% in 2018 and increase to a max benefit of 67% of the average weekly wage in 2021.

The New York Paid Family Leave website provides a chart of the official schedule on its “Timeline” page.

A Better Balance also provides a helpful explanation of this point in its One-Page Overview of the New York Paid Family Leave Program.

In sum, the percentage benefits will increase yearly in accordance with the following:

  • 2018: 50% of weekly wage up to a cap of 50% of the statewide average weekly wage
  • 2019: 55% of weekly wage up to  a cap of 55% of the statewide average weekly wage
  • 2020: 60% of weekly wage up to  a cap of 60% of the statewide average weekly wage
  • 2021: 67% of weekly wage up to  a cap of 67% of the statewide average weekly wage

As you can see, although the length of leave does not increase between 2019 and 2020, the benefit percentage does.

What does the cap mean for employees and what is the statewide average weekly wage?

Baby Caravan, LLC posted an easy-to-follow guide for understanding New York Paid Family Leave, and included a helpful breakdown of how workers will be affected by the cap.

As Baby Caravan‘s post on New York Paid Leave aptly explains:

“For example, if in 2018 you earn $1200 weekly, then you’d receive $600 per week in paid leave benefits.

Benefits are capped at the percentage of state average weekly wage. The AWW for [2018] is $1,305.92. So the maximum benefit for paid family leave in 2018 is $652.96, since the benefits is 50% pay. For individuals who earn above $1305.92 per week, knowing what this cap is will be helpful for budgeting purposes.”

Those figures would change with the percentage caps each year until 2021.

Is the program mandatory? According to New York Paid Family Leave, “the program is not optional for most employees. The exception is if you are in a job that will not allow you to attain the 26 continuous weeks or 175 days needed to qualify for Paid Family Leave (for example a seasonal worker).”

Baby Caravan provides an additional list of exempt workers under its “What Are The Exemptions” heading here as does the New York Paid Family Leave website under its FAQ and Eligibility sections.

These exempt workers include: independent contractors (unless they pay for their own coverage), farm laborers, clergy, public sector unions (unless paid leave benefits are collectively bargained for), and individuals who are collecting workers’ compensation benefits and not currently working.

How are benefits funded? Benefits are funded through small employee payroll deductions, meaning a small percentage of an employee’s income will be deducted per paycheck. The New York Paid Family Leave website provides an online calculator to view an estimate of your weekly payroll deduction HERE.

To be clear, these are nominal amounts to pay for the benefits received. In fact, the weekly payroll deductions are equal to just 0.126% of your weekly wage.

For example, if your weekly income is $2,000, your weekly Paid Family Leave payroll deduction is estimated to be $1.65.

Does the program affect private leave benefits offered by employers? New York’s Paid Family Leave policy provides a floor, not a ceiling. As such, additional employer benefits can be combined with or stacked on top of the paid leave offered by the state.

Additional Information and Where to Find it

paid family leave

For information on what kind of family care is covered, visit:

New York Paid Family Leave “Eligibility” Section

A Better Balance’s “Important News for New & Expecting Parents in New York

A Better Balance’s “Overview of the New York Paid Family Leave Program”

For additional information on how employees benefit, visit:

New York Paid Family Leave Employee Fact Sheet

Family Leave Works by A Better Balance

Paid Family Leave – Provide 12 Weeks of Paid Leave

For information on how Paid Family Leave benefits employers, visit:

Paid Family Leave Insurance: Benefiting New York Businesses

Busting the Myths on Paid Family Leave

New York Small Businesses Need Paid Family Leave

For Even More Information, visit:

“Get The Facts” by the New York State Paid Leave Coalition

To Contact Someone about New York Paid Family Leave, call or visit: 

To Contact New York Paid Family Leave

Call: 844-337-6303

Contact A Better Balance Online

Or Call: 1-833-NEED-ABB

If you found this post helpful, be sure to share with family, friends, and colleagues!

Disclaimer: This blog does not provide legal advice and does not create an attorney-client relationship. Always contact an attorney directly if you are in need of legal advice.

Law Motherhood

4 Ways Becoming a Lawyer is like Becoming a Mother

November 14, 2017
Lawyer Mother

Becoming a lawyer is a lot like becoming a mother.

The first years of motherhood, like the first years of a legal career, are a harrowing rite of passage. Both involve an incredible shift of identity and a tremendous undertaking of new, frequently daunting responsibilities.

For each calling, there’s a certain amount of reverence. Mothers are held to an almost saintly standard, and rightfully so. And though lawyers are not typically viewed in such an omnipotent light, there’s no doubt that the profession is still held in high esteem by many.

I became a lawyer before I became a mother, and, having gone through the shift from pre-law student to law student to attorney, I found many parallels when I made the transition from regular human being to mother. Below are four of them.

1. You Have Little Control Over Your Schedule.

Lawyer Mom

As an attorney, you frequently have very little control over your schedule. I’ve been fortunate to work for a firm that offers a tremendous amount of flexibility, particularly when it comes to time with my family. However, many firms are not as generous, and, regardless of your firm’s policies, there are always some things that will be out of your control.

Court issued deadlines, hearings, trials, and appearances are all dictated by courts and agencies that don’t care about your personal calendar. This can make for some incredibly stressful days, weeks, and months when it seems like everything snowballs at once. And though there can be some flexibility when it comes to rescheduling, it can also be incredibly difficult and in some cases, highly discouraged.

You’ll work days, nights, and weekends trying to catch up, and will sometimes feel like you’ll never get ahead of the workload.

Similarly, motherhood comes with its own set of highly inflexible obligations. A baby doesn’t care about your calendar or outside responsibilities. They will keep you up the entire night before an important presentation, or spit up all over their outfit immediately before you have to leave the house for an appointment.

Older kids don’t care about your schedule either. No matter how many times you tell a toddler “it’s time to go,” they will still run around the house, hide in a coat closet, and then refuse to climb into their car seat when you finally do get to the car.

Beyond that, there are constant unexpected sick days that will throw you off your game, not to mention the whole business of raising another human being who grows into a full-fledged person with a social calendar and obligations all their own.

Point being: both as an attorney and as a mom, your life will never really be your own.

2. There’s No “Off Button.”

Lawyer Mom

Another similarity between the legal world and motherhood: there’s no off button. Your responsibilities as an attorney and as a mother will both run around the clock, and the newfound responsibility will usher in a level of worry you never knew existed.

I remember when I interviewed for my first job out of law school. I wasn’t yet an attorney and was years away from being a mother when one of the attorneys on the interview committee asked me to describe what “worries” kept me up at night when it came to the practice of law.

At the time, the concept was completely unfamiliar to me.

It wasn’t that I didn’t know what it was like to feel stressed—I was a law student after all—but my responsibilities at the time came with an off button. I would take a hard class or a difficult test and move on. Even in my internships, I respected the work and the responsibility, but since I wasn’t a licensed attorney, I knew the ultimate onus of responsibility was not on me.

I honestly didn’t spend my nights worrying about anything, and I never slept more soundly (gosh, I miss those days).

Becoming an attorney changed that entirely. Suddenly I was responsible for every word that escaped my lips or keyboard. Any mistake I could potentially make could not only ruin my professional life, but someone else’s personal or professional life too.

I entered the world of hardcore worry and suddenly knew what it was like to lie awake at 2 AM worrying about things outside my control.

The weight of the responsibility was heavier than anything I knew—until I became a mother, that is.

3. The Work Can Be Tedious.

Lawyer Mom

It’s no secret that legal work can be tedious. It’s not glamorous, but someone has to read those 1000-page contracts.

In the practice of law, even the rules have rules, and no matter how exhilarating delivering a solid oral argument or a tough line of questioning is, 99% of being a lawyer involves sitting in a chair reading and writing.

And this isn’t leisurely paging through a magazine on a beach; it’s searching critically for the tiniest of errors and writing with the knowledge that someone will be reading your writing looking for the same.

Similarly, the work of motherhood is frequently thankless and tedious, especially early on.

You’ll change dirty diapers. You’ll drag yourself bleary-eyed out of bed in the dead of night. You’ll fold load after load of laundry. You’ll wipe vomit. You’ll carry someone who can run 3 times faster than you but refuses to walk two steps.

It’s tiring. It’s thankless, but it’s very likely the most important thing you’ll ever do.

4. You’ll Definitely Be Humbled.

Lawyer Mom

Finally, becoming a lawyer and becoming a mother will both humble you in ways you could not imagine.

You’ll learn to think differently, and more critically. A first year law student is taught to “think like a lawyer.”

A brand new mother also quickly learns to think and feel in new ways.

You’ll be stripped of your previous identity and given a new one.

You’ll have to reconcile your personal goals and desires within the confines of this new world.

You’ll be made to question all of your previous beliefs about your knowledge and abilities.

You will fail spectacularly in some ways, but find hidden strengths you never knew existed.

It will be hard, and it will be the most worthwhile thing you’ve ever done.

Law Working Parent

Pregnant at Work: 4 Things to Know

November 8, 2017

Navigating the workplace during your pregnancy can be a challenge. Though women have advanced in the workplace, pregnancy discrimination is still alive and well. Knowing your rights and how to exercise them is half the battle, but you don’t have to go it alone.

There are several resources available to you to help guide you.

Below are 4 things you need to know when you are pregnant at work, including several helpful links to send you in the right direction.

pregnant at work

1. Know your rights.

Pregnant at Work

If you’re pregnant at work, you should know that you have rights.

State and federal anti-discrimination laws prohibit employers from discriminating against women on the basis of their pregnancy. General guidance regarding federal anti-discrimination protections can be found on the EEOC’s website under Pregnancy Discrimination.

These protections extend to every part of the employment process including hiring and firing.

In other words, your employer cannot fire you because you decided to have a baby. In fact, they cannot make any employment decision on the basis of your pregnancy.

Each state also has its own protections related to pregnancy. A Better Balance offers a free state-by-state guide, which is regularly updated with new information, including changes to the law.

Of course, without appropriate legal guidance, it can be difficult to know if what you are experiencing could be classified as pregnancy discrimination, but it is important to know your rights and know what patterns to look out for.

2. Know when and how to ask for an accommodation.

Pregnant at Work

Under the Pregnancy Discrimination Act, if a woman becomes temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, her employer must treat her in the same manner it would any other temporarily disabled employee.

In other words, if an employer has a policy that offers light duty to workers who fall ill or injure themselves on or off the job, the employer must also offer a policy that provides for light duty to pregnant workers seeking an accommodation. This also extends to policies offering alternative assignments, disability leave, or unpaid leave.

It is not a matter of seeking “special treatment;” it is simply affording pregnant women equal protection under the law.

Knowing when to request an accommodation can be tricky. You may wonder if you need an accommodation, or you may worry that your employer will somehow penalize you for seeking one.

To this end, the UC Hastings Center for WorkLife Law initiative [email protected] offers several great resources.

In addition to offering tips on when to share the news of your pregnancy with your employer, it gives advice, by state, on how to obtain assistance from your healthcare provider.

Also, because it’s important to specify the type of work you can perform when requesting an accommodation, Pregnant at Work provides a list of accommodation ideas to help get you started.

The site also gives great advice on workplace lactation rights.

3. Know to put everything in writing.

Pregnant at Work

When discussing matters concerning your pregnancy, it’s important to put everything in writing.

Even if you disclose your pregnancy verbally or initiate an in-person conversation about a reasonable accommodation, it’s important that you follow up all communications with an email. Not only will this ensure there is a record you can reference later if needed, it will ensure everyone is on the same page.

It is much easier to identify misunderstandings or miscommunications when you see them in writing.

Also, although no one likes to think about it, if the worst does happen, and you have reason to believe your employer discriminated against you on the basis of your pregnancy, it will be important to show that your employer knew you were pregnant.

You are your own best advocate in the workplace, so when in doubt: document.

It’s good to live by the following motto: if it wasn’t documented, then it didn’t happen.

4. Know when to ask for help.

Pregnant at Work

Finally, know when to reach out and get legal help.

Although online resources are helpful, it can be difficult to appropriately “diagnose” your situation.

Like all employment discrimination matters, pregnancy discrimination cases are fact-specific.

State protections also vary, so if your employer does not fall under the purview of the federal protections offered by the Pregnancy Discrimination Act, it will be important to know what state protections are available.

For example, the Pregnancy Discrimination Act (“PDA”) applies only to employers who employ 15 or more employees. In New York, however, the New York State Human Rights Law banning pregnancy discrimination applies to employers with at least 4 employees.

So, if you are in New York, and your employer employs just 5 employees, you may not be covered by the PDA, but you can still avail yourself of state protections.

It will also be important to find out if you have protection under any other applicable laws, such as the Americans with Disabilities Act, or your state’s disability discrimination law.

It’s important to find an attorney in your state who practices in the area of employment discrimination.

A good way to find an attorney knowledgeable in this area is to contact your local county bar association.

If hiring a private attorney is not an option, the Center for WorkLife Law offers a free hotline, which can be reached by email and phone: [email protected] or (415) 703-8276.

A Better Balance also offers a free legal hotline to speak with an attorney about your situation.

In any event, you are not alone.

Future Post Alert: You may have noticed this post does not address matters related to maternity leave. I am planning a separate post on parental leave in the near future. Sign up to receive new post updates, or follow me on social media to be the first to know!

Disclaimer: This blog does not provide legal advice and does not create an attorney-client relationship. Always contact an attorney directly if you are in need of legal advice.

Law Motherhood Working Parent

Welcome to The Mom at Law

October 21, 2017

Hello, and welcome to The Mom at Law! I’m Candace, a practicing attorney, working parents advocate, freelance writer, and proud mom. Here, I’ll share my musings about law, motherhood, and more. I’ll also discuss helpful advice for navigating the world as a working parent, surviving life with a toddler, and making the most out of it all. This space is young, and I expect that it will evolve over time. Thanks for starting this journey with me.

If you’re interested in learning a bit more about my background, particuarly as an advocate for working parents, additional information can be found here and here.

I should note that while I am a licensed attorney, none of what I share should be construed as legal advice. Always consult with an attorney in your state regarding any legal questions you may have.

I will soon have social media pages for the blog up and running. Please follow! Links can be found at the top of the site.

Thanks for visiting–I’m glad you’re here!