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Termination? Discrimination? What’s an Employee to Do?

March 13, 2012

New York does not recognize an action for wrongful termination. It is an employee-at-will state, meaning that your employer can fire you for any reason or no reason, and you can quit your job for any reason or no reason. You may, however, have a claim against your employer if, for example, you have a written Employment Agreement, or your employer has an Employee Handbook which specifically addresses termination procedures and your employer did not follow those procedures, or you are protected by a union under a Collective Bargaining Agreement, or your civil rights have been violated.

In the case of a Collective Bargaining Agreement, you may first be required to exhaust all of the procedures set forth in the Collective Bargaining Agreement for termination before you file a lawsuit against your employer. Similarly, if your employer violates a constitutionally protected right by discriminating against you on the basis of age, race, sex, disability, etc., there are administrative remedies that must be exhausted before you may pursue a claim against your employer. These remedies give the employer an opportunity to correct any bad behavior or misunderstandings, and require the filing of a complaint with the Equal Employment Opportunity Commission (“EEOC”). It is important to note, however, if you file a complaint with the New York State Department of Human Rights (“DHR”), you are choosing the forum in which your case is heard and the decision of the DHR is final and binding, except under very limited circumstances.

If you file a complaint with the EEOC, you must do so within 300 days of the first discriminatory act. For example, if the discriminatory act was termination based on age, then you must file a complaint with the EEOC within 300 days of your termination. However, if the discriminatory act is a sexual or race based comment or gesture directed at you, you must file the complaint within 300 days of that act. Even if you are in the process of exhausting your remedies under a Collective Bargaining Agreement, if your grievance is discriminatory in nature, you must simultaneously file with the EEOC to protect your rights.

Once you file the complaint, the EEOC commences an investigation, and if they find that your claims are valid, that is — if they find there is “probable cause” for the complaint you made against your employer, the EEOC may sue the employer. If the EEOC sues your employer, you as an employee must “intervene” in the action and it is recommended that you retain an attorney to assist you with this process. The EEOC may decide not to sue your employer, and instead issue you a right to sue letter. Once you receive the right to sue letter, you have only 90 days to file a lawsuit.

Regardless of your filing with the EEOC, if you have a claim that requires you to take action within a year or lose your rights, then you must not wait for the EEOC to issue a determination; you must commence an action while your EEOC matter is pending. For example, if in addition to age discrimination, you have a claim for infliction of emotional distress, which has a one year statute of limitation, you must file your claim for emotional distress in the state court within one year from the time that the emotional distress was inflicted upon you, even if the matter the age discrimination claim still pending at the EEOC. Alternatively, after your discrimination claim is pending at the EEOC for six months, you may demand a right to sue letter from the EEOC so that you can pursue the matter through the courts. However, your claim must be with the EEOC for at least six months before you can demand a right to sue letter.

Finally, you may have more than one claim pending with the EEOC at any given time. For example, if after you file a complaint with the EEOC based on age discrimination, your employer retaliates against you for taking such action (i.e., fires you, demotes you, or takes some other adverse employment action against you), you must file an additional EEOC complaint within 300 days of those actions. In some limited circumstances, a retaliation claim may also be filed based on post-termination retaliation (i.e., adverse actions taken after your termination).

The foregoing process may have many twists and turns and may involve several different filings with several different statute of limitations dates. It is, therefore, recommended that, the moment you believe your rights have been violated by your employer, you reach out for assistance and guidance to ensure that your rights are fully protected.