By Jack Tuckner, Esq.
If you’re experiencing any kind of discriminatory treatment at the workplace because you’re a woman – I want to give you a different way to look at this, because it can be a little counterintuitive. People often think if they complain, if they raise an issue in the workplace, things will get worse, and perhaps they will, if they wait until they either leave, quit, or are fired to raise a discrimination issue, and often then it’s too late.
So, I just wanted to give you sort of my perspective as an employment lawyer for the last 15 years who concentrates his practice on women’s issues in the workplace. How I’ve come to look at these cases, and how I believe it’s best to empower working women to get a better result in terms of remedying the discriminatory treatment while you’re still there, or being in a better position to leave (your employment) with something to show for your troubles.
When I started practicing law thirty years ago – for the first 15 years of my practice, I was a public defender – a criminal defense lawyer for people who could not afford to hire their own lawyer, which is most of the criminal justice system. And, I was drawn to that type of work because I tend to always side with the underdog, the person, the cause that I feel is more hopeless; the person or cause that needs a soldier, a fighter, that needs to be championed, and certainly, people accused of a crime that do not have the resources to mount an optimal defense – those are the very people that need a powerful defense. Doesn’t matter, we’ll let a fact finder or jury decide guilt or innocence, right or wrong, but certainly someone who is accused of a crime should be entitled to a vigorous defense, and in fact the Constitution and the laws provide that if you’re accused of a crime, you’re entitled to an attorney to vigorously represent you.
But then, for the last 15 years, when I started representing employees, particularly women dealing with gender-based issues, I realized that women are even more disempowered in many ways as a group than criminal defendants, because criminal defendants are entitled to a lawyer – women are not. There is no guarantee of representation for women in the workplace, and the fact is that women are paid less than men for performing comparable work that requires equal skill, effort, and responsibility. Women are the gender who face pregnancy discrimination constantly, and women are as a group the gender that is sexually harassed.
So, what do you do if you’re in a position where as a female, the terms or the conditions of your work environment are degraded because you’re a woman – just because of that, either related to your pregnancy, either pre-partum, or while you’re pregnant or postpartum issues, or just dealing with unwelcome sexism or unwelcome or unsolicited sexual advances in the workplace, or unequal pay – what do you do about that?
Well, the fact is that United States law, and your State’s law, New York State law, New York City law, and your State’s human rights laws, (the) anti-discrimination statute of your State prohibits all sex-based discrimination. It totally prohibits it. And so, the problem is often that it becomes like a “she said, they said” if you wait until your company fires you, and they come up with all kinds of reasons that they’re not happy with you, apart from who you are as a woman, (then) you’re really out of luck, it’s too late.
So, what you need to understand is that it’s critically important that you raise these issues while you’re still working before the company gets the jump on you, and come up with reasons that they are not happy with you because you may be pushing back on inequality, you may be raising an issue of gender pay disparity, unequal pay – if you are earning less than a man for performing comparable work, you need to give your company the opportunity to fix it.
And you want to do that in a formal way so that you can prove that you’re raising these issues. So, later on, they don’t say “What? You didn’t say that, you didn’t tell us this, you didn’t say you’re being sexually harassed, you never mentioned that you’re pregnant and your OB says that you need certain flexible accommodations but you never asked us for that, when did you ask us for that? – We have no proof of that.” You want to be able to lead your company along so that they have the opportunity to do the right thing that’s required by law, which is what? –
To treat you equally as a woman, to not permit you to be sexually harassed, to not permit you to be working in an environment that may be hostile to women in general, and you in particular; to ensure that your work environment for the nine months of your pregnancy is flexible, isn’t hostile; that you are able to come back from maternity leave that your employer must provide for you, and they must provide a place for you to express milk after you come back from your maternity leave.
But none of these things necessarily happen just because of the goodness of your employers’ heart, or because they naturally do the right thing – they often do not. And employers often don’t even know the laws that they’re supposed to comply with, which is why its critically important that when you are still working, at the first instance of discriminatory treatment, differential treatment, hostility that you’re experiencing due to some protected status such as your gender, that you notify your employer, that you oppose the discriminatory practices, that you make a statement – it doesn’t have to be hysterical, it’s not supposed to be threatening, it should just be to the level that’s necessary – raised only to DefCon 5, 4, 3 as needed.
You want to start out simply expecting that your employer will do the right thing and take you out of harm’s way and make the workplace equal, not hostile, fair, appropriate, etc. So, that’s why you want to leave and have a paper trail in order to hold your employer’s feet to the fire and keep them honest.
So, if you or your loved ones are experiencing any kind of differential treatment that is in anyway related to gender, sex; feel free to visit our website, look around, see if could find the information you need or give us a call, give me -Jack Tuckner- a call, or send me an email, or call the office and speak with Deborah O’Rell, who will elicit all the necessary information in total confidence & free of charge, so that we can offer our guidance and assistance to you to help you navigate these difficult times at work, and again what’s the point of all of this? To get your employer to do the right thing and stop discriminating against you, but what if they don’t?
If they don’t, and this was really the point of my bringing this up, the talking about what might be counterintuitive if you are still working and you’ve complained, you’ve raised these issues to your employer in a way that you can document that you’ve done, and then if things get worse for you – that getting worse (situation) for you is illegal retaliation, and your employer knows at least that much. So, if things get really bad, and you need a divorce from your employer, the employer’s not allowed to retaliate against you, and create this backlash just because you’re holding them accountable and demanding to be treated equally.
If things can’t be resolved, rectified, if the marriage really can’t be saved, so to speak, then you’ll be in a much better position to command a severance package to teach your employer a lesson as you are riding off into the sunset and you are leaving. But that’s the juice, the leverage that you need being one individual who doesn’t have a contract, may not have a union, who doesn’t have any other protection, the leverage you need is the documented complaint to your employer, and then if things can’t be resolved, you’ll be able to do a lot more, you’ll be David to their Goliath, then teach them a powerful lesson, and make a big difference, and perhaps change the workplace for women who come after you, for the better.
This is Jack Tuckner with Tuckner, Sipser, Weinstock and Sipser. Again feel free to call us – we have offices in New York City and in the mid-Hudson Valley, or email us. Even if you work outside of New York state, if we can offer any assistance with your particular workplace challenge, we will be happy to do just that. Happy New Year.