New York Lawyer's Legal Updates

Discrimination At Work: Who Is A “supervisor”?

Author: New York Employment Discrimination attorney Alena Shautsova

Workplace discrimination is one of the most unpleasant and upsetting things that may happen to anyone. One may think that in 21 century most employers are aware of the consequences of singling out an employee based on sex, race, place of origin, disability or age. The reality, however, is much different and work harassment and hostile environment happen more often than one would think.

What do you need to know if you believe you became a victim of discrimination at work?

First of all, an employer must have notices at work place that would direct employees as to what to do if they believe they are a victim or they know of a victim of employment discrimination. Those notices must be posted at the place where employees ordinary gather and may see them such as a locker room dashboard, or community dashboard in the common kitchen area.

Second, depending on the size and location of the employer, you may be protected by New York City, New York State and/or Federal Laws. The New York City and New York State afford the widest range of available damage recovery and protect more classes of employees than Federal law. The size of the employer for the Federal protection must be at least 15 employees or more.

Third, for the employer’s liability to be actionable the employer either must know of the harasser’s actions and fail to undertake reasonable steps to prevent the discrimination; or the harassment must be by employee’s supervisor. The definition of who is a supervisor for the Employment Discrimination purposes has been changing, and in a recent U.S. Supreme Court decision it has been recognized that a supervisor can be only a person who the employer has empowered to take “tangible employment actions against the victim ... such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." An employee who merely directs another employee's work activities is not a supervisor. The Court's decision in Vance v. Ball State Univ., No. 11-556, slip op. (June 24, 2013). Further, if a coworker is responsible for the alleged harassment, the employer is not held liable unless it was negligent in discovering or remedying the harassment. This ruling, however, does not affect the definition of a supervisor contained in other laws, and one should still consult with an attorney if he or she believes to be a victim of discrimination at work.

Lastly, one who became a victim of discrimination must complain to an appropriate authority in time in order to be able to claim and recover damages. The Statute of limitations or time afforded to an employee to complain about violations of his/her rights or file a lawsuit, is restrictive. Usually, the action must be undertaken within 300 days, but to be on a safe side, an employee should do to it as soon as 180 days of the act of discrimination (firing/ demoting/ disciplining, etc.) Some laws provide for a longer statute of limitations, but an employee must realize that if he/she fails to undertake an action within the shortest statute of limitations, almost always he/she will lose recovery of damages under one of the discrimination statutes. Procrastination is not your friend in this situation.

The Law Office of Alena Shautsova is an employment law firm serving clients in Brooklyn, New York City, Long Island, Manhattan, Queens, the Bronx and surrounding communities. If you have questions regarding discrimination at work call 917-885-2261.

29 July 2013
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