You are listening to an excerpt from Ask the Experts on Talk 860 WWDB AM with host Steve O and weekly guest, LGBTQ legal expert Angela Giampolo.
This week Angela answers frequently asked Workplace Discrimination Questions, such as…
How do I recognize on-the-job discrimination?
Is Sexual Orientation a Protected Category?
To Whom Do Anti-Discrimination Laws Apply?
Does a Person Have to Be an Employee to Be Protected From Discrimination?
What Are the Most Common Types of Hiring Discrimination?
What protections do I have if I report discrimination?
This week on Ask the Experts.
HOW DO YOU RECOGNIZE WORKPLACE DISCRIMINATION?
There is a difference between discrimination and a hostile work environment, though both are enormously difficult to experience. Discrimination involves an action taken against someone based on their identity. Differently, a hostile work environment can be more general, where the environment can be toxic for multiple or all employees. Action while employed does not make it discriminatory. You can also be a part of a protected class and have that happen, too. An employee could be older and she’s a woman, right? So there’s two protected classes there, over the age of 55 and female. She could be a lesbian, which now you have three protected classes: LGBTQ, female and age. All of these horrible things are happening to her at work. But her experience doesn’t qualify as on the job discrimination, because her boss is a tyrant to everyone indiscriminately. So to recognize discrimination, we first need to identify that the behavior that is happening towards you, and that the behavior is happening to you because you are a part of a class, not because your boss is a tyrant.
That is very hard for people to differentiate. That’s first and foremost is, are you a member of a protected class? Is there a causal relationship between the behavior and the adverse action happening to you at work? That is difficult.
WHAT STEPS CAN I TAKE IF I AM EXPERIENCING WORKPLACE DISCRIMINATION?
If you feel this is happening to you, you need to build your case. You need to keep track of all of those behaviors and dates, when they happen and the consistency that they happen with. From an LGBTQ perspective, if you’ve been at the job for eight years, and then you come out at year eight and then the behavior begins, that is a red flag for discrimination. Maybe for eight years, you’ve had amazing performance reviews every year, the above pay increase above, performance bonuses every year. Then year eight comes in and you get horrible reviews, not one pay increase. By marking this down when it happens, the causal relationship can be drawn between your coming out and the discriminatory behaviors. When the discrimination is based on an identity that you can’t hide or cannot be shown to be causal, it makes it harder from a legal perspective to prove how you’re being treated around your protected class.
HOW DOES A WORKPLACE DISCRIMINATION COMPLAINT PROCEED?
First of all, again, you don’t have a cause of action until you’ve been terminated. You have to wait until you’re fired. There is also constructive termination, where the employer constructed a workplace scenario that was so unbearable that you had to terminate yourself. But constructive termination is a more difficult case to build than if you are fired.
Once you are out of a job, there’s been an adverse employment occurrence, and now we can begin. We can go to the EEOC within 180 days from that adverse employment event. They can do an investigation. 98% of the time, they will issue what’s called a right to sue letter. This doesn’t mean they didn’t find anything. The EEOC has so little staff that their bandwidth is so small that it has to be like a Supreme Court type case for them to use their staff attorney time to pursue it. With a right to sue letter, you can use a private attorney and you’ve exhausted all administrative remedies.
Then we can sue. We get in front of a judge maybe a year and a half, two years later. Hopefully it settles or you get your job back if that is something you want.
Transcript
Speaker 1 (00:01)
You’re listening to an excerpt from Ask the Experts on Talk 860 Wwdbam with host Steve O and weekly guest LGBTQ legal expert Angela Giampolo. This week, Angela answers frequently asked workplace discrimination questions such as, how do I recognize on the job discrimination? Is sexual orientation a protected category? To whom do anti-discrimination laws apply? Does a person have to be an employee to be protected from discrimination? And what protections do I have if I report discrimination?
Speaker 2 (00:38)
Good morning, Philadelphia. Welcome to another expert show where we bring you the top experts in the fields of health, legal, financial and home improvement every Tuesday from ten to eleven. And our first show every week that is becoming a popular show. It’s actually over eight markets. We’re in. It’s become one of our most popular shows. And it could not be as popular as it is unless we have attorney Angela Giampolo, good morning.
Speaker 3 (01:17)
Good morning, Steve. How are you?
Speaker 2 (01:19)
I’m good. I got to tell you, the show has become so big she doesn’t even come on till 10:00. So she worries me every week. But you know what? When you’ve got the top show, you can do things like that. And we’ve got to have now, Angela, she just showed me her little dog. Don’t you have a large dog, too?
Speaker 3 (01:43)
Don’t I have a what?
Speaker 2 (01:45)
Don’t you have another dog?
Speaker 3 (01:48)
I have a big dog that I can’t carry around everywhere. Yes, I have a normal dog.
Speaker 2 (01:54)
And then whenever we see the clock behind Angela, we know Angela is in town. Hey, we’re going to be talking about workplace discrimination. Wow. That has got to be such a big topic. Angela, give me a story. You give us a client’s story. We don’t mention any names or anything. And they’re always great stories. You got a great story for us this week.
Speaker 3 (02:30)
Yeah. Well, specific to this. Specific to anything. So I had a client come up with something that I’ve never heard. You tell me if you’ve heard this, as far as being their end of life, what they want with their body, they want to be aquamated.
Speaker 2 (02:50)
Never heard of that.
Speaker 3 (02:52)
Right. Instead of cremated, aquamated, so cremation by water. Not quite sure how it works, I figured. But apparently you get more ashes if you’re aquamated. I just keep thinking aqua water.
Speaker 2 (03:06)
Yeah.
Speaker 3 (03:08)
I don’t know. I have no idea. So that’s like been sort of the biggest mind blown thing is I had no idea to be cremated by water because you think fire. So I don’t know. To me, that stands out. And then I would say a really poignant story that we’ve only met once and we’re going to meet again when she gets back from vacation. And it actually deals with workplace discrimination. And one of the questions that is in here stems from at least our initial consult. But just this really amazing, nice woman, PhD status and very, very well respected and well known in her industry, and she just works for a boss that is, he double hockey sticks, like, horrible, horrible to work with kind of thing. The stories that she has around, the ways in which she’s been spoken to without anybody around, but also in a larger group and disrespected and all of the things, but she does it to everyone. The turnover in that job has been 52 people, 52 people in four years. That is hard to do. And so if you are indiscriminately discriminatory towards everyone, then there’s not a case like this boss.
Speaker 3 (05:00)
And so then I was looking at case law to see, like, well, is it a hostile work environment? Because clearly it’s hostile. This woman is mean all the time and this and the other. But like, no, there is no recourse against a boss who is impossible to work with. Rude, mean, belittling, condescending, all of the things. If this woman is in therapy, but if she is like that to everyone, old people, black people, LGBTQ people, white people, if she is like that to everyone, then there’s absolutely nothing that can be done. And the woman just looked for a new job. So hearing the stories of how this woman’s been treated and to know that there’s absolutely no legal recourse. And it was really frustrating, even to myself. And then how to convey that to her when she’s literally in therapy because of her job and then just really boiling it down to the fact that you’re choosing to work there at the end of the day so you can be number 53 and leave.
Speaker 2 (06:15)
Angela, we don’t do politics on here. But is that Kamala Harris? You’re talking she’s lost a lot of people, but it’s amazing. You have some of the greatest stories about clients. And that’s why I brought it up today. How do you recognize on the job discrimination?
Speaker 3 (06:38)
Right. So clearly this woman thought there was discrimination, that there was something actionable based on. If I told you these stories, like, made fun of in front of children, asked to leave meetings, that she was asked to join in front of everyone and asked to leave. And like, so the belittling, the condescension, whatnot? Clearly there must be something not okay or wrong about behaving being treated that way. But just because you’ve suffered some adverse, I guess you’d say action while employed does not make it discriminatory. And you can also be a part of a protected class and have that happen, too. So she’s older and she’s a woman, right? So there’s two protected classes there over the age of 55 and female. She’s not. But she could be a lesbian, an older lesbian, which now you have three protected classes, LGBTQ, female and age. And all of this happening to her. And it’s still not true on the place, on the workplace, on the job discrimination, because this woman is a tyrant to everyone. Right. Indiscriminatory, mean to everyone. So first of all, we need to identify that the behavior that is happening towards you, that is discriminatory is happening to you because you are a part of a class, not because your boss is a tyrant.
Speaker 3 (08:17)
And that is very hard for people to suss out and to differentiate. That’s first and foremost is, are you a member of a protected class? And is there a causal relationship between the behavior and the adverse action happening to you at work? And that’s difficult. The most difficult aspect, if you’re part of a protected class, that’s easy, right? Older, whatever the case may be of a certain religion, able bodied or not, whatever that part is easy, it’s the causal relationship. And also because when you’re a part of a protected class, unlike in some areas with LGBTQ status, where I can flat out and say, you are a lesbian, I’m homophobic, the door is right there. Please leave. You can do that in certain areas. But for years, for decades now, it’s obviously been illegal to fire someone for their ethnicity, their race, their age, their what have you. So if you are racist, you don’t typically come out and say that and say, that’s why I’m firing you. You do these other things, right. You write them up for things that you wouldn’t necessarily write up a white person for or give them difficult tasks that you know they’re going to have a hard time doing or may flat out fail and then give them a bad review and sort of build your case that way, the case being fired up.
Speaker 3 (09:58)
And likewise, if you feel this is happening to you, you need to build your case. Okay. You need to keep track of well, Angela, being white, is always given these types of tasks or comes in at shows up for a radio show at ten one while she knows she has an additional, yeah, we love you, though, of commercials. And then I show up at 9:58 for my radio show and I got my show taken away. Right. So keeping track of all of those things and dates, keeping track of dates that they happen and the consistency that they happen with. And especially if from an LGBTQ perspective, given that this show also slants towards the LGBTQ community, maybe you came out as gay. So you’ve been at the job for eight years, and then you come out at year eight and then the behavior begins, right. Or you start transitioning. So you start the job as Angela, and you’re Angela for eight years, and then you start transitioning and you’re Angelo and you do a name change and you ask for all of these things to change in terms of the names on your health benefits and login.
Speaker 3 (11:28)
That’s a big one. Like, I’m tired of logging in, using Angela underscore Giampolo every day. Please change that. No. Why not? And so every day you’re forced to come in and log in, use your name as your login, which is a huge thing. Every day you’re logging in maybe four or five times a day with a dead name, with a name that is dead to you and what that does to your psyche, little by little. So keeping track of those things and maybe for eight years, you’ve had amazing performance reviews every year and the above pay increase above and beyond CPI for inflation, you get performance bonuses every year or quarterly whenever the incentivized pay occurs. And you can show that. And then year eight comes in where you transition: horrible reviews. Not one pay increase for three years. Right. So those are the things that you want. That’s the causal. I came out, I had eight amazing performance reviews, eight bonuses. I came out, horrible reviews, needs improvement, three stars required improvement training and no pay increases for three years. I think there’s a causal relationship to my transitioning to how I’m now being treated at work.
Speaker 3 (12:59)
And then if you don’t have that transition or coming out moment, if you’re African American, if you’re older and you don’t have that causal, I didn’t become black. Right. Like, I was black from the minute I started the job. When you don’t have that causal coming out thing, it makes it harder from a legal perspective to prove how you’re being treated around your protected class.
Speaker 2 (13:27)
Do you go before a judge for this?
Speaker 3 (13:31)
Hopefully not. Hopefully it doesn’t get to that point. First of all, again, you don’t have a cause of action until you’ve been terminated. Okay. Now this is very hard for people to wrap their minds around that. Go ahead.
Speaker 2 (13:48)
No, I’m amazed that you have to wait. You have to wait until you’re fired.
Speaker 3 (13:53)
Until you’re fired. There’s no other way to say it. It sucks.
Speaker 2 (13:58)
That’s not right.
Speaker 3 (14:00)
Exactly. So I have people calling me. They’re being called names. I don’t like to use this, but if you absolutely can’t take it right. And it’s literally between like, I’m having suicidal thoughts and I’ve been institutionalized and all of these things or quitting, we could potentially have a case for what’s called constructive termination. They made my life so difficult that they constructively terminated me that they didn’t fire me. But they constructed a workplace scenario and they did certain things that I was effectively terminated and I had to terminate myself. So we could do that. But I want to not have to build that case if I don’t have to. You go in front of a judge. Not anytime soon. So first and foremost, you have to be fired. So that is really, like I said, difficult to wrap your mind around because you come out at year eight and then you’re made fun of they leave things on your desk. They write notes. I have someone coming in. He was going to come in today, but he’s coming in Saturday to tell me about three years he hasn’t been fired. It’s been going on for three years, and he’s coming in and he’s having a hard time keeping track of it all and writing it down.
Speaker 3 (15:24)
And I even buy people journals. I’m like, listen, I really need you to memorialize all of this. And I just Amazon them a Journal. And I’m like, this is your potential employment discrimination Journal today. 4/26 this happened. Like, notate it. Write it down. So then something bad happens. You’re fired, even laid off or contract not renewed, right? Something like that. But basically you’re out of a job. So now there’s been an adverse employment occurrence, events that has happened to you, and now we can begin. So then we can go to the EEOC within 180 days from that adverse employment event. We can go to the EEOC. They can do an investigation. 98% of the time, they will issue what’s called a right to sue letter. Okay? So right to sue letter means it doesn’t mean they didn’t find anything. The EEOC has so little staff that their bandwidth is so super small that it has to be like a Supreme Court type case for them to use their staff attorney time to pursue it. So then they issue a right to sue letter, and now you can use a private attorney and you’ve exhausted all administrative remedies.
Speaker 3 (16:48)
Then we can sue. And then we’re in front of a judge maybe a year and a half, two years later. Hopefully it settles. Or depending on what you want, the gist may be to help you get your job back, right? I ask people all the time, what do you want? Do you want your job back? Do you want them to be nice to you? Do you want for them to leave you alone but you love your job and you want to go back? 30, 40% of the people say yes. At that point, they hate the place so much that they can’t see themselves going back. But others need the job. I’m going to be evicted. Like, I swap my job. Others want to get a new job.
Speaker 2 (17:27)
I’ve got a question for you that I think it will be at first for this show. I think it’s apropos for what we’re talking about today. And I always try to think about if I’m sitting in the car right now and I’m listening to our show, what questions would I ask Angela? And I have learned so much about the LGBTQ community as it comes to law that I feel like I was like an ostrich with my head in the sand. And I’m so glad I’ve learned from the best. So, Angela, my question to you is all we hear about nowadays, and for some reason, it’s bakers that will not bake a cake for a gay couple and it goes to court. Is it the gay couple that’s suing? The Baker make a cake for them, right?
Speaker 3 (18:42)
No, it’s the Baker that’s suing saying I shouldn’t have to make a cake.
Speaker 2 (18:49)
Okay.
Speaker 3 (18:50)
Or a gay couple, if my religion states do as a religious redemption, I shouldn’t be forced to do this. And I’m not discriminating against the gay couple because I don’t want to make the case. Right. First, the gay couple sued. So the particular case I think that you’re talking about, first they gave a couple sued, the Baker lost. Then the Baker appealed and said, but, no, I shouldn’t have to kind of thing.
Speaker 2 (19:29)
Would they come to you to file a lawsuit?
Speaker 3 (19:34)
Yeah. So we’ve had a situation like that in Pennsylvania, obviously not Philadelphia, but in the Pennsylvania areas of Pennsylvania around a wedding dress, not wanting to sell a wedding dress to a lesbian couple, ultimately. Right. But that issue is making its way up in the Supreme Court. And so we don’t have final decision on what the law of the land is going to be. How I fall on it is twofold, first and foremost. And again, we talk about this a lot, the privilege that we have living in a city. Okay. Because you throw a rock and you get a wedding gown store in a city. Right. You would go 200 miles out west to Pennsylvania, and there’s one. There’s just one. And you may have to drive like 45 miles to it. Okay. So what I’m about to say doesn’t necessarily apply or is fair for everyone. But I’m of the mindset. Like, there was a picture that I saw of someone had emailed it to me down in Tennessee, and it was a handy hardware store. And it said, we don’t serve gays. The person had found online a very similar photo from the that says, we don’t serve colors.
Speaker 2 (21:21)
Right.
Speaker 3 (21:22)
And it was like identical, different store. But I understand in the window, like, it was creepy, eerie, black and white, real time. And I remember thinking and I said on radio shows around the country, thank you for putting that out there, because I will not give you my money. This is why I like the cycle of dollar. This is why when I refer my clients to financial advisors, I try to make them LGBTQ. This is why when I go shopping for something, this is why HRC does their corporate equality index so that we know when we’re buying a car that Subaru has trans inclusive and employment nondiscrimination policies that protect us. We make purchasing decisions with our values and principles and beliefs. And so thank you for putting out there that you don’t serve gays. Because now I’ll take my $10 and give it to a nonhomophobic. Right. However, if that is the only store within 50 miles, Angela, that way. Yes, Angela in Philly can make those privileged decisions. I get to go to that. I need to make a key. There’s one here on 10th street or there’s one on 12th.
Speaker 2 (22:44)
Right.
Speaker 3 (22:44)
I’m equidistant. Like I can walk either way within five minutes and give someone my money who doesn’t hate me. Someone who lives in again, Fort Worth, Alabama, which is all about why my expansion nationwide of my law firm is focused on these small towns is if that person doesn’t have another hardware store within 50 miles, they don’t get to make that privileged decision. If I’m not giving you my $10, they need the hammer. They need whatever it is. They need the wedding dress, God forbid. So there’s that. And then secondly, with a wedding dress or a wedding cake, it’s clear that I’m gay because two women came in for two wedding dresses. The hardware store situation or a restaurant or, I don’t know, sporting goods store. Right. I walk into hotels. How can you tell how can you tell that I’m LGBTQ? Yeah, right. So, yes, there are stereotypes that I could look more manly and that a guy walking into a hardware store acts and looks like Jack from Will and Grace. Right. If those two stereotypes come in, and even then I know a couple of straight guys that act and look like Jack from Will and Grace.
Speaker 3 (24:07)
Right. So now we’re talking about a slippery slope of you trying to determine and perceive my LGBTQ status. Right. And then denying these services accordingly. So it’s a huge slippery slope when we talk about commerce. And I know we literally have to go. I can’t believe we almost are done.
Speaker 2 (24:29)
But the reason why is you answer my question is just take your business somewhere else because there’s other peak banks.
Speaker 3 (24:39)
Not everyone has that.
Speaker 2 (24:40)
I’m glad. Yes, you do.
Speaker 3 (24:43)
Down in Fort Lauderdale, you can take your car and drive five minutes and go to another store.
Speaker 2 (24:48)
But in a rural area, it’s tough, though.
Speaker 3 (24:52)
It’s super tough. They did not want to be dealing with these people, but it was literally the only shop in town.
Speaker 2 (24:59)
I hear you, Angela. Give everybody your phone number and I got to tell you, we’ll probably get into this some more next week because I really learned a lot today. There’s a case going on right now. It’s a Baker right now, and that’s why we’re talking discrimination. But give everybody your phone number and how they can reach you.
Speaker 3 (25:22)
215-6452. 415. My email is [email protected] and my website is giampololaw.com and I [email protected].
Speaker 2 (25:35)
And I will say if there’s any way possible that you can be helped when it comes to LGBTQ law. Angela Giampolo is your answer. We have her on every week. She’ll be back with us again next week. Angela, thank you so much. You’re the best. Travel safe.
Speaker 3 (25:56)
Thank you. Talk to you next week.
Speaker 1 (25:58)
Be sure to tune in every Tuesday at 10:00 a.m. When Angela Giampolo is the guest on ask the experts on 860 wwdbam and online at www.am.com.