Architectural Columns

Posts by Diane Williamson

Rooting Out Racism in the Workplace

By Diane Williamson

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

This month our office is taking part in the Racial Equity Challenge sponsored by the New York State Bar Association. Anyone can participate (no law degree required): https://nysba.org/racialequitychallenge/. In taking part in the Challenge, I have been thinking about different types of racism, e.g., systemic racism, implicit bias, etc. Sometimes from a white perspective, it seems like overt racism is largely over, but what better context than employment discrimination to make us realize that overt racism is still very much alive in the United States.

In 1964, with Title VII of the Civil Rights Act, the federal government made employment discrimination based on race (and color, religion, sex, and national origin) illegal. Nevertheless, studies show that racist employment practices still exist. Most people are familiar with the study that demonstrated that identical resumes were 50% more likely to get an interview when the name at the top sounded like a white person’s name instead of a black person’s name. A 2017 study found that racist hiring practices have changed little since 1990.

In the landmark case Rogers v. EEOC, the Fifth Circuit Court of Appeals held that the practice of racially segregating patients in a doctor’s office could amount to discrimination in the terms, conditions, or privileges of employment, thereby violating Title VII. 454 F.2d 234 (5th Circ. 1971), cert. denied, 406 U.S. 957 (1972). The principal opinion in the case concluded that employment discrimination was not limited to the “isolated and distinguishable events” of “hiring, firing, and promoting.” Id., at 238. Rather, Title VII could also be violated by a work environment “heavily polluted with discrimination,” because of the deleterious effects of such an atmosphere on an employee’s well-being. Id.

Despite the recognition that racism at work could amount to unlawful discrimination, courts have been reluctant to hold that any and all displays of racism rise to the level of changing the workers “terms, conditions, or privileges of employment.”
In 1982, the Fifth Circuit stated that in order to be unlawful “a discriminatory and offensive work environment [must be] so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.” Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1982) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1981). Wow. It is crazy to think that previously workers were told by courts that racism in the workplace was not unlawful unless it completely destroyed their emotional and psychological stability.

In that case, the plaintiff failed in showing that the abusive work environment was unlawfully based on race regardless of the fact that he was called a “nigger,” “coon,” and “black boy” and a pool house nearby had “KKK Headquarters” written on it. Id. at 924. There were several other utterances of racial epithets and a workplace culture of violent hazing. Id. at 923. The court wrote that all the employees used similar racial epithets “without apparent hostility or racial animus.” Id. at 924. Basically, in 1982, the Fifth Circuit court ruled that using racial epithets in the workplace was normal.

Compare that 1982 case to one currently before the Supreme Court. Presently, the Supreme Court is being asked to consider whether a hostile work environment claim can survive summary judgment when there was racist graffiti (the N-word and two swastikas) and the plaintiff was called “boy” one time—potentially outside of the limitations period. Collier v. Dallas County, 3:17-CV-3362-D. (June 6, 2019 5th Cir.) Justice Kavanaugh in a DC Circuit Court opinion wrote that one instance of the N-word is severe enough to constitute racial harassment. Ayissi-Etoh v. Fanny Mae, 712 F.3d 572 (D.C. Cir. 2013). That being said, Justice Coney Barret ruled against summary judgment in a case with one utterance of the N-word. Terry Smith v. Illinois Department of Transportation (7th Cir. 2019). It is possible that racist graffiti is even more disturbing than a spoken utterance because the worker does not know who wrote the epithet, and the worker must endure it every day along with the knowledge that his coworkers seem to acquiesce to its presence. The Supreme Court decision in this case will help to determine the continued strength and relevance of the Civil Rights Act.

In some ways it seems that Title VII is not keeping up with society’s notions about the unacceptability of racism. Recently, a federal district court dismissed a complaint made by Whole Foods employees that the grocery store was selectively enforcing a dress code and penalizing employees who wore Black Lives Matter facemasks but not other employees who wore other slogans. Meanwhile, Taco Bell apologized for allegedly firing an employee for wearing a Black Lives Matter face mask, offering the longtime employee his job back. The latter reconciliation was due to a Facebook Live post and news coverage, not a court case.

While we do not yet know what effect the Supreme Court’s ruling in the above case will have on the federal discrimination standard, we can take some comfort in the fact that New York recently amended its discrimination law to make it easier to show that harassment is unlawful. Under the new standard, a plaintiff need not show that the harassment is severe or pervasive, but only that it altered the terms and conditions of employment. The employer can defend itself if the complained of conduct did not rise above the level of “petty slights or trivial inconveniences,” but it is hard to imagine that a coworker using a racial epithet could be construed as a “petty slight” in 2021.

Unfortunately, the changes to New York law have yet to be tested in court. We can only hope that our laws against discrimination will not permit racial epithets to persist in the workplace unpunished.

Workplace Bullying—Is it illegal?

By Diane Williamson
Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

Are you being bullied at work?


Unfortunately, more often than not, the law will not offer protection or remedy if you find yourself in a toxic work environment resulting from bullying by your co-workers or managers. Indeed, there is no law against workplace bullying in New York, and, as court decisions indicate, the law does not create “a general civility code” for the workplace.


Nevertheless, there are some instances when workplace bullying may be illegal. The law may protect you if the bullying is targeted at you for a specific reason such as your race, gender, or other classification that is protected by the law. Under New York anti-discrimination law bullying is illegal if it is based on race, color, national origin, ethnicity, religion, veteran status, genetic makeup, disability, age, or sex, gender, sexual identity, familial status, marital status, and domestic violence victim status.


So, what might actionable bullying look like? Imagine an employee who is targeted because of her age or because she asked for a reasonable accommodation for a disability. Not all of the harassing behaviors need to make explicit reference to the protected characteristic in order for the bullying to count as discrimination. Also, a combination of bullying based on more than one of the protected categories counts as harassment. And the employee who complains about harassment need not be the intended recipient of the abusive communications—if the harassers are speaking derogatorily about someone else, those comments may still contribute to the hostility of the work environment. While the plaintiff must demonstrate that the harassment altered the terms and conditions of employment, the harassing behaviors might also take place outside of work—on social media, for example.


In 2019 New York updated its law that prohibits harassment to better prevent against all forms of discrimination at the workplace. Now New York law instructs courts to use a stricter standard. While courts should not consider “petty slights and offences” to be harassment, bullying that targets someone because of protected characteristics should be considered discrimination if it changes the terms and conditions of employment for the victim.


In addition to New York’s anti-discrimination laws, there are other laws that hypothetically could offer some relief for bullied employees. For example, bullying might be illegal if it is in retaliation for making a discrimination complaint, complaining about unsafe or illegal activity, making a wage and hour complaint, or because of lawful recreational or political activities conducted outside of work. Nevertheless, the law may be less likely to punish bullying for some these reasons.


If the bully’s behavior rises to the level of being “outrageous” and “intolerable in a civilized society,” you may have a claim for intentional infliction of emotional distress against the bully, or if you have been the victim of offensive touching or threatened touching, you may have a claim for civil battery or assault. If the workplace bullying causes stress that exceeds normal work stress and it causes you to be unable to work, you may also have a Workers’ Compensation claim. Of course, the only way to truly gauge whether your claim is likely to be successful is to speak with a lawyer.


If you are faced with regular bullying at work, it is a good idea to keep a record of your experiences. You will most likely forget the little details of the day-to-day harassment unless you write them down. If you send an email to yourself that recounts the events of the day (not on your work email), the record will also be time-stamped. It might be the case that you only come to realize later that the bullying is related to a protected characteristic. To be on the safe side, start documenting the bullying as soon as it starts on the chance that you may later realize that it is illegal. Plus, writing down the harassing behavior may help to delay your response and defuse a potentially volatile situation. Overall, take care of yourself and start applying for new jobs. Hopefully, a better situation is right around the corner.

Faced with a Severance Agreement? Take Time Before You Sign!

Diane Williamson, Esq.

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

When you sign a severance agreement, you are likely agreeing to release your employer from all potential liability under, inter alia, state and federal employment laws. If your employer presents you with a severance agreement, you have little to gain, and potentially a lot to lose, if you succumb to the employer’s pressure to sign the document without taking time to consider the terms and consult with a lawyer or other trusted advisor.


Does the agreement contain a non-compete clause that unreasonably restricts your ability to find work? Have you been a victim of discrimination? Has your employer paid out all the wages and vacation pay due? Did you complain about unsafe or illegal working conditions prior to your termination? Could a legal claim against your employer provide you with leverage to negotiate improved terms? Will you be eligible for unemployment benefits if you receive severance pay?

For answers to these questions and many others that may arise, take time to consult with an attorney before you sign a severance agreement.

Update: Biden Reinstates Job Protections for Federal Civil Servants

By Diane Williamson

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights. 

In November this blog spread the word that President Trump signed an executive order that made it easier to terminate civil servants working for the federal government. There is good news for those of you impacted by this Trump policy shift.

On January 22, 2021, President Biden reversed the Trump administration’s executive order that targeted civil service workers by creating “Schedule F” employees, a new class of civil servants who could be hired or fired without regard to civil service rules. Biden’s executive order protects an employment merit system so that civil servants cannot be appointed and terminated for political purposes.

According to the Business of Federal Technology Journal, the Office of Management and Budget made moves to reclassify almost 90% of its workforce as Schedule F in the last days of President Trump’s administration. While the reclassifications had not yet taken place, their imminence suggests that the institutions of democratic government are weaker than we may have realized. These dueling executive orders remind us that we cannot take for granted our system in which government employees enforce the laws and not the power of elected officials. The government, like any workplace, functions best when its employees are evaluated on performance not on their allegiance to certain leaders.

The new executive order also reinstates union rights that were eliminated by the Trump administration executive orders, signed on March 28, 2018, which restricted collective bargaining and were the subject of several lawsuits and labor practice challenges.

The new executive order directs the Office of Personnel Management to instruct the President on recommendations for moving toward a $15 minimum wage for federal employees.

As stated in President Biden’s executive order: “It is also the policy of the United States to encourage union organizing and collective bargaining. The Federal Government should serve as a model employer.” These changes are a step in the right direction for workers.

217 S. Salina St., 6th Fl.,
Syracuse, NY 13202

T: 315-471-0405
F: 315-471-7849

Attorney Advertising. Prior results do not guarantee a similar outcome.