Tag Archives: discrimination

Getting Fired in Turbulent Times

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.

It happens.  When the public is already highly-charged with emotion, employees get fired.  They get fired for good reasons, like getting caught being racist on camera or refusing to wear face masks.  They get fired for bad reasons, like reporting discrimination.  And they get fired for scary reasons, like getting arrested while engaging in peaceful protests. 

This post isn’t about how to not get arrested at a protest.[1]  If you are engaging in civil disobedience against state-sanctioned murder of people of color today, in all likelihood you have already weighed the pros and cons of making your voice heard versus being arrested for blocking traffic or disturbing the peace.  These are the choices every person has to make for themselves. 

This post is about what to do if your employer calls you on the carpet on Monday because they saw you protesting. Or because you got arrested.  Or because they saw your facebook page.

First, unless your employer is a Government agency, remember that you do not have first amendment rights in the workplace.[2]  In most cases, your employer can fire you for any reason or no reason at all. 

That said, pay attention to what the Employer says and does.  Is everyone who got arrested getting fired? Or just a subset, for instance, people of color or people from a particular nation?  Are some people getting lesser penalties, such as suspensions?  How about people who got arrested for counter-protesting? 

If penalties for similar conduct split along racial lines, then start writing.  Take copious notes.  Note what the employer says to you and what the employer’s security guards say while they’re escorting you out.  Write it all down.  It might or might not be evidence of discriminatory intent (let the lawyer sort that out). When you get home, write up your observations in an email and send them to yourself. 

Do’s

  • Do call your Union Rep.  If you’re in a Union, the “for cause” provision in your CBA is the strongest protection you have against politically-motivated terminations.
  • Do apply for unemployment benefits immediately. 
  • Do call your criminal defense attorney and let them know that you may be asking them to communicate with your employment law attorney.  (Your employment law attorney will probably need information such as whether you should be asserting the Fifth Amendment during any investigations by the State Division of Human Rights).
  • Do ask your defense attorney whether the conduct for which you were arrested was actually illegal or not.  In the State of New York, you are not supposed to be fired for engaging in legal off-duty conduct.[3]  So if you were actually not obstructing traffic or disturbing the peace, the employment law attorney needs to know that.
  • Do call an employment law attorney.
  • Do bring the employment law attorney your notes and any paperwork provided to you by the Employer.
  • Do tell the employment law attorney about any prior disciplinary actions taken against you during the course of your employment.  The employment law attorney may be able to neutralize the effect of those disciplines, but can’t do it without all the facts. 
  • Do bring the employment law attorney your notes about any previous discriminatory conduct or conduct that went negative after you reported discrimination.  The attorney needs names, dates, and witnesses for each incident, and will ask you very specific questions about what precisely was said at what point.

and Don’ts 

  • Don’t take anything from the employer’s premises other than your own belongings.  It is tempting to download all your emails and the files you were working on in an attempt to defend yourself.  Don’t do it.  That is the employer’s property and a vindictive employer will come after you for “stealing” it. 
  • Don’t send emails from your work account to your personal account.  Even if you’re not emailing yourself documents, it still “looks” like stealing, and it may give the employer an excuse to subpoena your personal devices.
  • Don’t sign anything.  If someone is trying to pressure you into signing a severance agreement immediately, it may mean that they sense they are subject to liability.
  • Don’t give the employer a reason to fire you.  Don’t talk back, use profanity, or engage in hostile or aggressive conduct.  Stay calm and observe everything around you. 
  • Don’t assume that the employer’s conduct is actionable.  Don’t assume it’s not actionable.  The employment law attorney is the expert.  Let that person figure out the legalities of what the employer did. 
  • Don’t let getting fired stand in the way of your continued activism.  You are doing the hard work that citizens have to do in a democracy.  And the other activists around you may know about jobs that don’t interfere with your work.

If you’re protesting today, your day job should be the last thing on your mind. Your primary concerns should be making your voice heard and staying safe.  But if work gets crazy on Monday morning, the above steps may help you protect your workplace rights.


[1] If you’re out there today protesting, please make sure you know how to identify protest monitors and legal observers, and have a safety plan.

[2] If your employer is a Government agency, you have limited First Amendment rights in the workplace, and only in very limited  circumstances will they protect you from being fired. 

[3] Note the words “supposed to.”  The reality of this prohibition is extremely messy and difficult to prove. 

COVID-19 In The New York Workplace – Part VII: Discrimination and Harassment

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.

Workplace discrimination and harassment against Asian Americans and Pacific Islanders is being fueled by xenophobic rhetoric about the COVID-19 virus.  Workers in these protected classes are facing everything from coworkers’ racist “jokes” to physical violence. 

No worker should be subjected to workplace discrimination or harassment on the basis of national origin or race at any time, and workplace hostility makes a coronavirus-affected workplace even more dangerous.  Fortunately, there are some steps that New York workers can take when faced with discrimination and harassment.

In the State of New York, the Division of Human Rights [“SDHR”] recently released a useful handout on COVID-19 related workplace discrimination. [1]  The handout describes a variety of examples of pandemic-related discrimination workers might face, including being sent home based on a perception that they are more susceptible to coronavirus because of their race, being discriminated against for wearing a face mask, and threats and harassment.  (Violence and threats of violence may be considered hate crimes, and it is appropriate to call 911 to address violence or threats.  It is also a good idea to call the New York State Hate Crimes Task Force at 1-888-392-3644.)

What can a worker do when faced with what appears to be race-based or national origin-based discrimination?  While there is no substitute for speaking with an attorney qualified to practice employment law in your jurisdiction, these are some pointers that can help you when you get to that conversation. 

  • Document the incident meticulously.  Write down what happened, who saw it happen, when it happened (date and time), who was hostile or discriminatory, who was the victim, where it happened, and the order in which things happened.  Note:  Discrimination/harassment that is not connected to your protected class is not illegal.  Don’t clutter up your documentation with incidents involving “equal opportunity” nastiness that you can’t show is connected to your protected class – it’s not fair, but it won’t get you anywhere.  This update from the SDHR includes a list of classes that are protected in the State of New York.
  • Think about the effect of the incident.  Has your safety been compromised?  Has the incident made it impossible for you to do your job (for instance, has your equipment been damaged or have you been denied access to key resources?) Do you need to see a mental health provider to deal with the emotional effects of the incident?  Has the incident affected your finances? Do you have a certificate or license that could be affected?
  • If the incident is one of a series of nasty events, document who, what, where, when, and how each incident occurred. 
  • Once you have written down all the information, send it in an email to yourself using your PERSONAL EMAIL ACCOUNT.  Email is a great tool for combating workplace discrimination, because an email message is automatically date-stamped and time-stamped.  However, IT’S ALMOST NEVER A GOOD IDEA SEND AN EMAIL FROM YOUR WORK ADDRESS TO YOUR PERSONAL EMAIL.  The employer can track that, and will use it against you.
  • If the incident physically prevents you from being able to do your job, has caused you to seek mental health treatment, has affected your finances, or is one of a series of ongoing events, have a look at your employer’s discrimination and harassment policy.  Figure out how and to whom to report the incident(s). 
  • Write a complete, succinct timeline of the discrimination and harassment.  Start with the oldest incident.  For each incident, include:
    • Date
    • Time
    • Place
    • Harasser Name
    • Harassee Name
    • Names of any witnesses
    • Photos, memos, videos, recordings
    • What happened, in chronological order
    • Its effect on you
  • Make a complaint pursuant to the employer’s discrimination and harassment policies.  Include your timeline in the complaint.  If the employer uses a complaint form, attach the timeline to the form. Send the complaint in a way that you can easily track. Don’t assume that a hand-delivered document or something sent via inter-office mail is going to be acknowledged or followed up on. Here are some trackable ways to send a complaint:
    • Send an email and request a “read” receipt
    • Send a fax and get a fax confirmation receipt
    • Send it via certified mail and track it through the post office
  • Carefully document everything that happens after you make your complaint, in the same manner you used to document the original incident(s). 
  • Once you’ve made a complaint, buckle your seatbelt.  The workplace is about to get very complicated for you.  People may stop talking to you – they’ve been ordered to do so, because now you are considered a litigation risk.  You may be put on paid leave pending the employer’s investigation, or you may be temporarily moved to a new assignment.  The ostensible reason for the change is to protect you from the harasser.  The real reason is because the employer is afraid someone will do something to you that will give you additional grounds for a lawsuit.  If the change affects your pay, call an attorney.
  • The employer will probably perform some kind of investigation.  You probably won’t get a copy of the report.  You may not even be informed of the results of the investigation.  
  • Once the employer’s investigation is complete, one of three things will likely happen:  a) the harasser will be removed, either losing his job or put in a place where he doesn’t have contact with you; b) nothing will change, except that now your coworkers might be afraid to talk to you; or c) you’ll experience workplace retaliation (i.e., even more nasty conduct with you as the target.)  Depending on how sophisticated the employer is, the retaliation may or may not be actionable.  Just continue to document everything that happens to you.
  • If you’ve hit a wall with the employer’s investigation and option (b) or (c) has occurred, that’s a good time to speak with an attorney and determine whether it makes sense to pursue the claim with the SDHR, the federal EEOC, or in another forum. 
  • CALL AN ATTORNEY.  It doesn’t matter if you call Satter Ruhlen Law Firm or another firm.  Just get in touch with someone with expertise in your jurisdiction who can tell you if any or all of the above pointers are a good idea.  It is well worth the consultation fee to determine what your rights might be in the workplace.

Workplace discrimination and harassment is intolerable under any circumstance.  In a workplace affected by coronavirus, it is extremely dangerous.  Ultimately you have to decide whether and how to fight it, but know that it is illegal and are laws to protect you. 


[1] This blog posts focuses on New York State Human Rights Law, but the EEOC has also issued a statement with links to its guidance on national origin and race discrimination. 

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