Know your rights

Workplace discrimination and harassment

Women overhears couple behind her gossiping about her

No one should have to tolerate workplace harassment or discrimination, which is why the Department of Education-UFT contracts have contained protections for many years against a wide range of discriminatory or harassing behaviors, including sexual harassment. The 2018 contract contains new anti-retaliation language. Federal, state and city laws also provide protections.

Workplace discrimination or harassment can take many forms, and there are various channels for redress. Each channel has its own timeline for reporting the conduct and filing charges. It can be hard to figure out how to respond and what avenues to pursue, which is why it is so important that you contact the union for help.

It’s important to be aware, too, that not every incident of inappropriate behavior and every form of discord with a supervisor will rise to the level of what legally or contractually constitutes harassment or discrimination.

Protections in the contract

Article 2 of the DOE-UFT contract for teachers and corresponding articles in other DOE-UFT contracts set the standards for fair practices, which include a prohibition against the DOE discriminating on the basis of race, creed, color, national origin, sex, marital status, sexual orientation, disability, age or union activity.

Under the new contract, which applies to all UFT-represented employees, the DOE is required to maintain an environment that is “free of harassment, intimidation, retaliation and discrimination.”

The new contract prohibits retaliation against members who raise workplace concerns. It explicitly prohibits retaliation, harassment, intimidation and discrimination of any kind when any employee in “good faith” raises a concern about any situation that may have violated the collective bargaining agreement or DOE policy, or has a concern relating to their professional responsibilities or the best interests of their students.

Alleged violations of this new clause go through the regular grievance process. If not resolved, the union may take the matter to final and binding arbitration.

Another avenue for redress if you are being harassed or intimidated by a supervisor is to file a special complaint under Article 23 of the teachers’ contract and corresponding articles in many other DOE-UFT contracts. As part of the special complaint procedure, the union has the right to convene a joint investigating committee, consisting of one UFT representative and one DOE representative. The committee will spend one day investigating the complaint by speaking with the complainant, the alleged harasser and witnesses to the alleged harassment. If no resolution is reached, the union may escalate the complaint to the chancellor’s level.

If you feel you are being harassed, intimidated, discriminated against or retaliated against, keep an anecdotal log indicating the place, time, date and any witnesses who were present during each incident, and contact your UFT district representative.

Federal protections

Title VII of the Civil Rights Act of 1964 prohibits discrimination and harassment in employment on the basis of race, color, religion, sex and national origin. In addition, Title VII provides protections for individuals who make a complaint of discrimination or harassment.

Sexual harassment is a type of unlawful discrimination on the basis of sex. There are two forms of actionable sexual harassment:

1. Quid pro quo: Unwelcome sexual advances or other conduct of a sexual nature by a supervisor when submission to such conduct is a condition of the subordinate receiving a tangible job benefit, such as a promotion or bonus, or suffering a tangible job detriment, such as demotion or firing.

2. Hostile work environment: Unwelcome conduct of a gender-based or sexual nature that is so severe and pervasive that a reasonable person would find an intimidating and hostile work environment has been created.

A federal appeals court in New York in February 2018 became the second in the nation to hold that Title VII’s prohibition against sex discrimination extends to discrimination based on sexual orientation. NYSUT, the UFT’s state affiliate, submitted a friend-of-the-court brief urging this expansion. Over the years, federal anti-discrimination laws have expanded to include additional categories. The Age Discrimination in Employment Act (1967) prohibits discrimination in employment on the basis of age and covers employees 40 years of age or older. The Pregnancy Discrimination Act (1978) protects against discrimination on the basis of pregnancy, childbirth or related medical conditions. The Americans with Disabilities Act (1990) prohibits discrimination in employment on the basis of disability or a perceived disability and requires employers to provide reasonable accommodations, unless doing so would cause an undue hardship. Federal law also provides some protections for workers on the basis of military status and genetic information.

Before you can file a lawsuit in federal court alleging discrimination or harassment that violates Title VII, you must file a complaint with the federal Equal Employment Opportunity Commission within 300 calendar days from the date of the discrimination or harassment. If the commission issues you a Notice of Right to Sue, you have 90 days from that notice to file a lawsuit.

State protections

The New York State Human Rights Law provides many of the same protections as federal law, but it also includes additional protected categories, such as sexual orientation, gender identity, familial status, marital status, military status, domestic-violence victim status and predisposing genetic characteristics, and it provides certain protections against discrimination based on an individual’s criminal record. State law also offers protections from age discrimination for employees who are 18 years of age or older.

State law and federal law also offer different remedies if there is a finding of discrimination. If you believe you have been subject to harassment or discrimination that violates state law, you can file a complaint with the New York State Division of Human Rights within one year of the most recent act of discrimination. Alternatively, you may file a state lawsuit within three years of the most recent discriminatory act.

City protections

The New York City Human Rights Law provides expansive protections for workers that make it easier for them to prevail in litigation and includes additional protected categories such as partnership status, caregiver status, salary history, consumer credit history, unemployment status, status as a victim of stalking and sex offenses, and citizenship status. Among other notable differences with its federal and state counterparts, inappropriate conduct does not have to rise to the level of severe or pervasive to meet the definition of unlawful sexual harassment under city law.

If you believe you have been subjected to unlawful harassment or discrimination in violation of the New York City Human Rights Law, you may file a complaint with the New York City Commission on Human Rights within one year of the most recent act of discrimination or within three years for gender-based harassment. You also have the option to file a lawsuit against the New York City Department of Education within three years of the alleged discrimination or harassment.

Be aware that if you file a complaint with the New York State Division of Human Rights or the New York City Commission on Human Rights, you may be barred from filing a complaint in court. If you wish to file a lawsuit at either the state or city level, you must file a notice of claim within 90 days of the discriminatory act.

Choosing a course of action

Your best course of action will depend upon the facts of your case, whether it meets the legal standards, how long ago it occurred and the type of discrimination you’ve experienced. In some cases, it may be necessary to file a complaint with the Office of Equal Opportunity of the city Department of Education before you take legal action. You may be able to pursue more than one avenue as well.

Given this complexity, it is wise to consult with your UFT borough office or district representative to discuss your options. You should also know it is unlawful for an employer to retaliate against an employee who has complained of discrimination or sexual harassment.

The UFT Member Assistance Program can provide short-term counseling and referrals.

If you are a witness to inappropriate remarks and actions as a bystander, speak to your chapter leader or district representative for guidance.

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