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What does one need to prove sexual harassment?

We expect our workplace to productive and safe. However, sometimes it becomes a hostile environment. The law does not protect against gross incivility, or what I will call "general harassment." The harassment has to be based on your rights under local and federal laws. The most commonly known form of harassment is sexual harassment, but also illegal are racial harassment, sexual orientation harassment, etcetera. You may report the issue to your employer but rarely does the employer do much, though this has changed in the wake of the #metoo movement.

The U.S. Equal Employment Opportunity Commission explains sexual harassment, and how one might handle the situation on one's own. Under federal law, the harassment must be pervasive or severe. Under the New York City Law, as well as New Jersey it need not be severe, but your damages might be limited if it doesn't rise to a level of changing the workplace. The law of the State of New York or Connecticut is similar to federal law.

For your case to be considered a valid sexual harassment claim, it must be ongoing and create a work environment that is so uncomfortable that you do not feel as if you are safe or would consider quitting. If it is a supervisor you have a claim; if it is a co-worker, you must in almost every circumstance complaint. If your boss demands that you trade sexual favors for any benefit in the workplace, that is another kind of sexual harassment called "quid pro quo" (Latin, meaning "this for that"). Quid pro quo sexual harassment is always illegal, though a consensual relationship is not.

In proving your case, testimony is considered evidence, but the more detailed the testimony the better. Phone records are evidence. You might also have text messages and emails - save those, for certain. Take a screenshot and print them out. If you have third parties who witnessed the harassment all the better. Once case I settled turned on a single written note wherein the female supervisor wrote to my male client, "I know you want a piece of my A_ _."

If they are still working at the company, co-workers might be afraid to testify on your behalf, but they are protected under the law from retaliation, but things of this nature are always fraught with tension. Your co-workers might be afraid of losing their jobs, so to depend on them is dicey, but I have seen current co-workers take the stand and testify loudly and clearly in favor of my client. On the other hand, once I saw a former employee with so little to say testify for the employer. We won anyway.    

Can police search without a warrant?

Most New Yorkers are aware that police cannot search homes or persons without a warrant. However, you may be surprised to learn that a search warrant is not always required.

If a police officer asks to search your property, how do you know if you have a right to privacy or if you must allow access?

You are entitled to be treated civilly, even if you are under arrest

New York City is one of the centers of modern civilization, and I am proud that I am here. However, we also know that the level of civility differs by neighborhood, especially, alas, in the way in which police officers sometimes exceed their authority to use force.

If you have lived in the city for any length of time, it is likely you have heard of at least one story of a police encounter that left someone intimidated. Officers are often physically imposing and trained in various martial disciplines, including the use of deadly force. Eric Garner was killed by a police officer who used a chokehold - a use of force outlawed by the police department itself years ago. This power clouds the judgment of certain individuals on the force, and their brethren will rush in, use excessive force, leaving the citizen injured, bloodied or sometimes maimed or killed. Deëscalation techniques, proven effective, are rarely used. The police have their own culture in dealing with the public and a number of its members don't care if one of their arrestees are bloodied along the way.

If you are the victim of police misconduct, if you want to sue for excessive force, you must defeat any charge of disorderly conduct or assault on a police officer - often added as charges in order to preëmpt a charge of misconduct. And while you can always sue for excessive force, a charge that you were rowdy or disorderly will be used against you - so don't take a please to disorderly conduct if you didn't commit it.

And remember, an adjournment in contemplation of dismissal (ACD) is often a way for courts to manage their dockets. Public defenders say it is the same as a dismissal. Not true. An ACD will end up as a dismissal if you stay out of trouble for six months, but the courts have held that in the civil context, nothing short of an outright dismissal is what is known as a "termination in favor of the accused," which will allow you to sue for malicious prosecution - which is what the police are doing when they charge you with offenses you didn't commit, such as assault or disorderly conduct, in order to cover for their use of brutality.

NEVER resist arrest.

What you should know about the plain view doctrine

The Fourth Amendment to the Constitution places strict prohibitions against unreasonable search and seizures of your property, so if a New York City police officer wants to search your vehicle, the officer must meet specific conditions, such as possessing a search warrant, or if the officer has probable cause to believe that the vehicle possesses incriminating evidence. Additionally, the "plain view" doctrine may also lead to an officer deciding to search your vehicle. It is important to know what this doctrine is and how officers may or may not use it to conduct a search.

Findlaw describes the "plain view" doctrine as the rationale for a police officer to search and seize criminal evidence if the evidence is in plain view. The officer does not require a search warrant if the officer can see the evidence. This doctrine can apply if an officer stops a vehicle for a traffic infraction and then spots a piece of drug paraphernalia in the back seat. The officer can not only seize the paraphernalia but can conduct a search under the reasonable suspicion that other paraphernalia may be present.

If the Court later finds the search was unwarranted and suppresses the evidence -something that happens rarely - it that might result in the dismissal of the case. Even so, someone whose case is dismissed because of an improper search does not have a basis to sue in civil. The fact that you won't be prosecuted is considered enough of a benefit to preclude an action for money damages. 

What is color of law?

When it comes to enforcement of civil rights violations, most of them will be violations made under the phrase "color of state law." Many New York cases may deal with this concept. The Department of Justice explains that color of law basically means anyone acting on behalf of a government entity, like a cop. When a person is acting under color of state law and causes damages, going beyond his or her authority, is a person who can be sued under 42 U.S.C. § 1983. You can also sue under state law, but the time limits are much, much shorter. 

One hears in the news about law enforcement's abuse of power - treating suspects with excessive force, and in some cases killing them. This is a classic example of color of law. The officers are working as government officials, but some acts they carry out go beyond the scope of their rights as officers. Usually, there is no question of color of state law in a police misconduct case, but there might be in a rare case like a prison guard working for a private prison hired by the state.

Your guide to discrimination in the workplace

Discrimination in the work place is not uncommon. It happens often in New York. And yes, it could happen to you. Here’s what you need to know.

“In the workplace” refers to all areas of employment, including:

  • Benefits
  • Firing
  • Hiring
  • Job assignments
  • Layoffs
  • Pay
  • Promotions
  • Training

Why you must complain of discrimination if it occurs in the workplace

When an employee stands up and complains of discrimination, they engage in what anti-discrimination laws consider a protected activity. It need not even result in your termination - merely a change and conditions of employment that would dissuade a reasonable employee from making a complaint of discrimination. According to the U.S. Equal Employment Opportunity Commission, and in my own practice I see that an employee who reports unlawful behavior ending up on the receiving end of a denied promotion, verbal harassment; they could even be fired. Any of these retaliatory actions are prohibited can form the grounds for a lawsuit.

To prove retaliation, you had to have been engaged in a federally protected activity. Second, an employer needs to have enacted a retaliatory action against you - it need only be an action that would dissuade a complaint by a reasonable employee. Finally, a causal link between the retaliation and the employee's protected activity has to be be established. The closer in time the better; the more retaliatory acts the better.\

While an employee "but for" the protected activity she would not have been subject to retaliation - at least under federal law, if not the City Human Rights Law - the one benefit to a retaliation cause of action is that jurors understand retaliation. Retaliation is revenge. Employers like to be in charge and don't like it when an employee notes that it is doing something wrong. So if you feel you are being treated differently, if there is any way you can connect the treatment to discrimination based on a protected class - gender, race, sexual orientation, etc. - a mere complaint gives you greater power in court. Juries do understand discrimination, but discrimination is a dirty word. Retaliation is just getting back at someone, which people see all the time. Retaliation is a very jury-friendly cause of action.  

New York based staffing company accused of discrimination

The United States Equal Employment Opportunity Commission (EEOC) has filed suit against a staffing company based in New York. The suit alleges the company used illegal discriminatory hiring practices by "either refusing to hire highly qualified black applicants or placing them in the lowest paying, least desirable jobs."

Elaboration on allegations: Discrimination and retaliation within the workplace

The EEOC has accused the company of hiring practices that are in direct violation with Title VII of the Civil Rights Act of 1964. This law prohibits the discrimination and retaliation against individuals based on their age, disability, race or sex. According to the complaint, EEOC contends that Staffing Solutions either refused to hire highly qualified Black applicants or placed them in the lowest paying, least desirable jobs.

Further, the EEOC alleges that Staffing Solutions' owner, Kathleen Faulhaber, regularly referred to Black applicants as "n----rs," instructed her staff to comply with clients' race and sex preferences, placed employees in positions based on race and sex, rejected pregnant applicants, and discriminated against people on the basis of age. All civil rights practitioners and workers in protected classes should poay closen attention to this case.

2 safe driving habits to adopt when facing a DWI

As the summer gets underway, you can expect to see many more motorists on the streets of New York City and across the nation. Whether you are currently facing a DWI charge or have in the past, now is an appropriate time for you to evaluate your driving habits. If your license is suspended, you might not have access to a vehicle until some point after your legal situation is resolved. 

Though you are not the only driver on the roads, your actions can impact others and create a domino effect that increases the risk of collisions and death. More than one million impaired motorists were apprehended by law enforcement in 2016, states the Centers for Disease Control and Prevention. Good driving habits are necessary for you to stay safe. Here are two driving habits you should have to avoid criminal charges in the future. 

2 common types of workplace discrimination

Most New York employees are aware there are federal laws in place to protect them against certain types of wrongdoing and improper behaviors that occur on the job. Though employers have policies to discourage discrimination their work environments, many workers still experience discrimination and harassment in the workplace. Some of them dread going to work and have issues with their job performance because they are working in a toxic work environment. 

Unfortunately, laws alone are not enough to prevent some employers from acting negligently, unlawfully and abusively towards their workers. Below are a few types of discrimination that are prevalent in the workplace. 

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