Discrimination

[Confidential]

Jurisdiction

Pennsylvania

Hello,

My employer has an office in the state of Pennsylvania to where I report but company's main office is located in New Jersey.

I have a situation at work where my supervisor either yells or raises his voice to me. He sometimes does this in front of others. The first time it happened, he was reported to HR. HR investigated and ended up reprimanding him by issuing a verbal warning. However, this didn't stop him. He was reported to HR again, and HR started another investigation. HR spoke to numerous other employees on the team and found out that he was mistreating others on the team, - specifically members of the team that are not of Asian Indian descent. The team I work on has 4 white people, one black person, and 7 Asian Indian team members. The supervisor is Asian Indian as well. HR was told that the work load is distributed unevenly between the members of the team where as the non Asian Indian folks work weekends almost regularly but the Asian Indian team members don't have to.

In addition to this, we had a bunch of higher positions opened in our team but none of the tenured employees in our team were considered for them. It turns out that only Asian Indian candidates were hired to fill those positions. In fact, out of 7 new hires, only one person was black, everyone else were Asian Indian.

HR knows all of this and the most they did was speak to the supervisor again, and of course nothing changed. The supervisor's manager knows about this too.

It seems like my supervisor is speculating to our company that he is a minority, meaning Asian Indian, and that could be the reason they are not terminating his employment out of fear of a lawsuit against the company.

Now I few questions:

1. Can my supervisor really sue the company if his employment is terminated based on the reasons above, and I trust HR has the proof of misconduct at the very least?

2. In this case, can an attorney prove discrimination? What would be needed in order for an attorney to take on a case like this and what is the probability of winning if this goes to court?

3. Can I start a personal case - me against my supervision for insulting me and mistreating me? If so what type of lawyer is needed for this? I know this is not an employment lawyer, or is it?

 

[mightymoose]

1. Can my supervisor really sue the company if his employment is terminated based on the reasons above, and I trust HR has the proof of misconduct at the very least?

Yes, but not likely with much success. At least not with the info you provide here.

2. In this case, can an attorney prove discrimination? What would be needed in order for an attorney to take on a case like this and what is the probability of winning if this goes to court?

You would need to talk to an attorney about that. You need to consider what your actual damages might be. It seems that other than some harsh language you don't personally have much at issue here. Others may have stronger claims.

3. Can I start a personal case - me against my supervision for insulting me and mistreating me? If so what type of lawyer is needed for this? I know this is not an employment lawyer, or is it?

The insulting and mistreatment is really an issue for the HR department. Continue to report it every time, hopefully with the strength of witnesses to back you up.

 

[Tax Counsel]

1. Can my supervisor really sue the company if his employment is terminated based on the reasons above, and I trust HR has the proof of misconduct at the very least?

The supervisor could sue, but given the facts you provided would not win. First of all, federal and Pennsylvania law prohibit an employer discriminating against employees based on race. It makes no difference if the person being discriminated against is a "minority" since discrimination against an employee of ANY race, including white employees, is illegal. So employers should not be more sensitive to firing a minority employee than they are white employees. What the employer must do is ensure that when they fire an employee that the reason for the firing is not the employee's race (or any other protected characteristic, e.g. sex, religion, age, disability, etc). If your employer fires your supervisor not because of his race but rather because he has himself been illegally discriminating against some of his subordinates the employer would be on solid ground there. So if the employer can support that this was the reason for termination, the supervisor would lose his lawsuit.

2. In this case, can an attorney prove discrimination? What would be needed in order for an attorney to take on a case like this and what is the probability of winning if this goes to court?

You need to show that the reasons for the supervisor's differing treatment was due to race. One of the common ways to do that is to show a pattern of consistent behavior over time where members of one race are treated differently than members of another and that there isn't any reason other than race that would explain that differing treatment. As to how likely you'd win, that you need to discuss with an attorney who litigates illegal employment discrimination/wrongful termination claims. There are California attorneys who do nothing but litigate these kinds of claims.

 

[Confidential]

Thanks.
About your answer to 2, I feel that my reputation is damaged coupled with the fact that by promoting a hostile environment at the work place, my supervisor is not letting me properly work, creating unnecessary nervousness, which in turn leads to loss of opportunities for promotion for me. Same goes for others.

In addition to this, what in this situation would stop an attorney from filing a discrimination case? I think in this situation favoritism of Asian Indian employees is apparent.

About your answer to 3
There were countless complaints already reported to HR. There were witnesses present, they corroborated the incidents. HR still isn't doing anything to stop this.

 

[Confidential]

Thanks for this answer:

"You need to show that the reasons for the supervisor's differing treatment was due to race. One of the common ways to do that is to show a pattern of consistent behavior over time where members of one race are treated differently than members of another and that there isn't any reason other than race that would explain that differing treatment. As to how likely you'd win, that you need to discuss with an attorney who litigates illegal employment discrimination/wrongful termination claims. There are California attorneys who do nothing but litigate these kinds of claims."

One question here - due to the fact that a. only Asian Indian employees were hired for higher positions blocking every one who is not Asian Indian and b. the emails sent over the weekends show primarily the same non Asian Indian people who had been working, where both a. and b. were going on for over a year, what other proof might be needed?

Another thing to consider is the fact that multiple people had spoken to HR through out 18 month time frame at least and HR wrote up statements from these folks about the favoritism.

 

[cbg]

Let's not overlook the fact that before you could sue (and I'm not saying you can't or shouldn't - just reviewing the process) you need are right-to-sue letter from the EEOC or the state equivalent.

 

[Tax Counsel]

Let's not overlook the fact that before you could sue (and I'm not saying you can't or shouldn't - just reviewing the process) you need are right-to-sue letter from the EEOC or the state equivalent.

A slight correction that. Before the OP may sue for a claim under federal for employment discrimination the OP needs a "right to sue" letter from the federal Equal Employment Opportunity Commission (EEOC). A right to sue letter from the state would not suffice for the federal claim. Similarly, before the OP may sue under Pennsylvania law for employment discrimination, he must get a "right to sue" letter from the Pennsylvania Human Relations Commission (PHRC). A right to sue letter from the EEOC would not suffice for the state claim. The OP may file both his federal and state claims in a single lawsuit, but he needs the right to sue letter from each agency to do that.

Both federal and PA law require that the employee file his/her complaint with relevant agency within a fairly short period of time or the employee will be barred from later filing the lawsuit in court. For the PA state law claim the complaint with the PHRC must be filed within 180 days of the act of discrimination. For the federal claim, the EEOC complaint must be filed within 180 days of the act of discrimination unless the state enforces an illegal discrimination law that covers the same kind of discrimination (e.g. sex, race, or whatever the particular basis of discrimination was). If the state enforces such a law then the time for the EEOC complaint is 300 days. Since PA does have a law prohibiting employers from discriminating based on race, color, and national origin the time to file the federal EEOC complaint would be 300 days.

The employee does not have to file a complaint with both the state agency and the EEOC if the state and EEOC have a dual filing agreement. PA and the EEOC do have such an agreement. This means that the OP may file his complaint with either the PHRC or EEOC and specify in the complaint that he wants the complaint cross filed with the other agency. He must file that joint complaint within 180 days regardless of the agency he elects to file with to meet the state's shorter time to file. It's a good idea to make the dual filing with the EEOC rather than the state. Doing it the other way around can delay your time to get to court.

It's worth nothing that an employer must have at least 15 employees to be covered by the federal law and at least 4 employees to be covered by the state law. If an employer has 4-14 employees, you file your complaint only with the PHRC and sue only on the state claim. If the employer has 1-3 employees, you are out of luck entirely.

 

[mightymoose]

my supervisor is not letting me properly work, creating unnecessary nervousness, which in turn leads to loss of opportunities for promotion for me.

Have you actually applied for these promotion opportunities and been denied?

 

[cbg]

Thank you, Tax, for the clarification. Of course I know that but for some reason these days I don't seem to be doing a good job at details.

 

[Confidential]

I had applied to two positions outside of my team within the same organization. One of them I wasn't hired for, the second one is still pending a reply. I had not applied within my team.

 

[mightymoose]

I had applied to two positions outside of my team within the same organization. One of them I wasn't hired for, the second one is still pending a reply. I had not applied within my team.

Keep in mind that most applicants are unsuccessful. Only one gets the job.
You would have to prove the reason you were not selected was based on illegal discrimination.
Since you applied outside the sphere of influence of the person you are complaining about it seems unlikely you would have a strong argument.
I suggest you continue speaking with HR about your concerns.

 

[Confidential]

Thanks for the answer again.

Two points here:

First of all, me applying to another team is NOT outside of his influence because the new manager can speak to him (that is the policy) and he might in retaliation say anything bad about me, preventing me from going into the new team.

Second, you keep advising me to continue to speak to HR. They have really done nothing to change the situation thus far even though multiple people spoke to them. I doubt that they ever will. Keep in mind, HR has not been forthcoming with any updates with me on what they are actually doing to fix the situation.

I am trying to understand why you are making that suggestion and what are my rights in the situation where HR does nothing after the Nth complaint.

 

[army judge]

Second, you keep advising me to continue to speak to HR. They have really done nothing to change the situation thus far even though multiple people spoke to them. I doubt that they ever will. Keep in mind, HR has not been forthcoming with any updates with me on what they are actually doing to fix the situation.

I am trying to understand why you are making that suggestion and what are my rights in the situation where HR does nothing after the Nth complaint.

You have Two choices, the second LIMITED by the outcome of the FIRST.

You are FREE to file a complaint with one of these agencies:



Filing a Formal Complaint | U.S. Equal Employment Opportunity Commission



OR



About Filing A Complaint


Because of the current COVID outbreak, there MIGHT be delays in investigating and prosecuting a case with either the Federal Govt. OR State of PA.

The agencies will EXPLAIN their process, or you can INFORM yourself by reading ALL about either on their websites.


NOTE: I am NOT speculating about the possibility of an outcome in your favor.
I am informing you that you have the ability to contact EITHER agency and ask for one to investigate your allegations.

My first case as a 3L (in law school), continued for seven years as a young lawyer was assisting a large labor law firm in prosecuting an EEOC case against my father's employer. It was an age discrimination case. My father was a hospital administrator working under an employment contract. He alleged, and we proved age discrimination. He prevailed in federal court after seven long years, and two appeals on the federal appellate level in the Sixth Circuit.

If you choose this route, be patient and steel yourself for years of litigation.

If you have a case, you'll eventually prevail.

By the way, my dad was awarded $5,500,000, legal fees, and reimbursements to his retirement fund.

I wish you all the best as you pursue justice.

 

[Tax Counsel]

NOTE: I am NOT speculating about the possibility of an outcome in your favor.
I am informing you that you have the ability to contact EITHER agency and ask for one to investigate your allegations.

Either or both agencies. And for the OP's benefit, let me mention what these agencies do with the complaints they get. They'll do an initial screening and perhaps some investigation to determine whether they have an interest in taking on the case on behalf of the employee. As their resources are limited, in the vast majority of cases they elect not pursue taking on the case themselves even if the case has merit. They may try to arrange mediation between the employer and employee. But if the mediation doesn't work and the agency doesn't want to litigate the case for the employee then the agency will simply give out a right to sue letter and its part is done. A right to sue letter does not mean you have a strong case against the employer. It simply means that the agency declined to litigate the case for you and thus you are on your own if you want to sue.

 

[Confidential]

Thank you again for the answers.

I would much rather bring out a case against my supervisor, keeping the employer out of this. I would sue him personally for talking me down in front of others. Can I do that?

The employer would just get subpoenas to provide all relevant written information they have on this matter. Would this be possible to do?

 

[cbg]

"Talking you down in front of others" is not, in and of itself, actionable. Insults and verbal mistreatment are not actionable UNLESS they fall into the category of illegal discrimination (race, religion, national origin and so forth.) You would, IMO, be wasting your time trying to sue your supervisor for talking insultingly to you.

However, I do think you have grounds to investigate the possibility of a discrimination case, and for that you cannot completely exclude the employer. And, for that you need a right to sue letter.

Just FYI, obviously I can't know if your HR is doing anything or not. I do know that their obligation is to make the illegal behavior stop. They have no obligation to keep you informed of what they are doing or to make any discipline public - they are required to make it stop.

 

[mightymoose]

I am trying to understand why you are making that suggestion and what are my rights in the situation where HR does nothing after the Nth complaint.

It is not clear to me based on what you have provided that YOU have been a victim of discrimination. It's possible someone else has a more compelling argument. That you MIGHT be discriminated against in the future is not going to get anywhere.
There certainly are some questionable behaviors taking place, but the company is not responsible to resolve the issue to your satisfaction. You would not likely be informed of any disciplinary action if the chose to impose any.
If you are unhappy with the way the company is handling your complaint you might seek new employment. Otherwise, continuing to report problems lets HR know the issue has not been resolved.