certainly there is racial discrimination counted among the various types that you encounter in the workplace but there is also discrimination based on other protected categories if you will those include gender national origin religion disability age certainly they may also include for example things that one don't typically consider as being a monk protected categories but that could be sexual orientation certainly genetic traits so there are many different types of categories within which can possibly claim discrimination veterans for example as well recently have brought claims of discrimination successfully under new laws which protect them from employment discrimination and jackie these categories how as an employee would i know what type of categories i fall in or how i would i want to know well sometimes it's easy  if you're an employee and you're feeling that you're suffering some kind of harassment or discrimination you probably have some good feeling about what that's based on i typically feel that if you are if i have a call potential client giving me a call and they feel that they should scream anation but they have no basis for what they think that is that's already a warning sign so if you're thinking that an employee employer is treating you differently probably have some gut feeling that it's because i'm a woman or it's because i'm jewish or it's because i'm hispanic that you have that feeling it's because of my disability or it's it's because of my sexual orientation the usually the potential client or the employee comes in with a feeling this is what i think is going on now as professionals we may have an additional spin to that but the protective classifications that andre mentioned are the basic categories and you would have a feeling of what's going on if you think you're being discriminated against or you're thinking you're being harassed so for both of you when employees come into your office and you have some doubt because you're expressing a sometimes they they have a feeling which indicates some doubt but that something's going on it's not fair how do you hope them i did to five whether there is something really going on that's discriminatory and discriminatory in a way that it can be either due to cater resolved within their employ in their environment in my experience and i get a lot of calls the phone rings often i have to and i have to explain to the employee there's there's kind of a fine line there's a little bit of a dance and we have to look at what is happening specifically in the workplace what's going on do you feel like you're being harassed who's harassing you what are they doing what are they saying how often does this happen is it a one time event that's very severe or is it something that continues to happen over and over and we'll talk about that little more later but that's the first thing i ask there's a difference between an ethical behavior and illegal behavior ok you know and and that is pretty much the fine line that we have to navigate  through if the employer is treating an employee badly or even unfairly it doesn't necessarily automatically rise to the level of discriminatory or inappropriate illegal behavior just because it's unfair so for example if an employer is treating everybody i mean if he's a bad guy if has a jerk if he's got a nasty mouth if he's nasty there everybody we call him an equal opportunity yes but if he is singling an individual out because of one of these protected classes one of these protected categories then we can look a little further into whether it truly is discriminatory behavior is he treating this person differently because of her gender or because of his gender because of his sexual orientation because of his disability because of his color those are the things we look for so is it kind of a but for but for your protected class would they be treating you the same way andrea is your experience with your clients and i know you do both management both of you do both management and and employees but is focusing on employees is your experience with them similar when they come to you yes actually it is i and what i have found to be the single most valuable directive or piece of homework that i've given to those inquiring about the better than you and i ask them to identify any individuals they can because without it without that basis for comparison it's difficult for  myself as a lawyer who is providing perhaps an advisory opinion or for a judge to discern the employer's motives because likely the employer has its own unique perspective on why the employee is being treated in a manner that the employee obviously feels is unfair so i need to see how others who are performing similarly to you are being treated who are not of your race or your religion or do not have your disability and in that context that it becomes clearer whether the motive is truly discriminatory not unlawful or perhaps as jackie said an employer who just doesn't like you and there's no legal protection for being disliked so so it sounds like both of you are saying it's important for the prospective employer client or the person who's being discriminated against who may not be a client for them to understand their workplace not just understand how it was how they're being treated for but understand what's going on around th is there a need for them once they start identifies some problems to start taking notes on what should they what should an individual do i do recommend taking notes start start of a journal per se about of the workplace incidents i recommend that they write down the date what happened who was involved if there were any witnesses and what was said and you want to keep a bit of a chronology i often find if an employee themself it's all in themselves was on the fence about is this really because of my race is this really because of my general if you start keeping a bit of a chronology it will it will appear that you will see a pattern of behavior and so i think that's important i also think it's important to keep notes because if it's gone on long enough often you'll forget little little incidents and they can be very important if things progress in terms of lawsuits so it's very important to record that i would give the cabbie got that if you're doing that i recommend to people not necessarily to do it in the workplace borel on their computer or want to place pewters in the workplace because that is the employer's time and that is the employer's property so there have been occasions where individuals said i wrote these these notes and they're my private business but they were doing they were taking time away from their work and doing it at that time and that would make it more discoverable where it may not be and sometimes we wanted to be and sometimes we don't want it to be but if you if you do it when you should be working or you're doing it on your workplace computer that takes that away so i recommend do it on your lunch hour go to your car and do it on your lunch hour or go home and record it and definitely don't do it at work because that's their property and they have the right to go in and it might disappear one day you can so you want to protect that andrea what is the most common type of discrimination that you see in your practice while i do you think that sex both sexual power sent and  palliation are among the more frequent claims that evolve out of employee concerns and let me start by saying that employees will frequently come to me and i'm certainly to jackie as well and they give you an emotionally fueled a list of grievances that may or may not  with a legal claim it's important i believe to listen to what they have to say because a they're venting and b there may be legitimate claims within those grievances but to the extent that sometimes they are alleging a claim of discrimination that doesn't really meet the legal threshold to be qualified as on lawful employment discrimination they nonetheless can bring a claim to h r or to the administrative agencies that address such employment discrimination charges and their claim may be found not to have any legal weight however often what i find occurs is that there may be an unfounded discrimination claim followed you discriminated against someone that they know or ardently believe they didn't discriminate against but human beings being what we are when we are wrongfully accused sometimes we respond kind and we vent our spleen employers have to be in our caution not to respond in that way but when they do perhaps by isolating that employee or by changing his or her benefits by changing their work schedule or giving them less desirable work assignments that can constitute retaliation for talk to us a little bit about what a hostile work environment is and i frequently have people calling me saying i have a hostile work environment i have a hostile work and sometimes they do and sometimes they don't aren't most work that is impeding on the rights of the employee to flesh that out flesh to that they are changing the atmosphere because of their behavior towards that employee it could be possible comments that are on their face hostile yer jerk you're stupid you're dumb it could be like that again that has to be because of that protected classification ok but they're changing the very nature of the very atmosphere of the workplace they have changed it to become hostile if they could be not saying anything they could be putting pictures on the wall of pictures of nude women that would make it maybe they're not saying anything to the woman who was working there but she now feels she works in a hostile work environment because of these photographs they can be taken frequently things come over the computer racist jokes sexual jokes if they're continuing to come in management is either originating them or not doing anything that can be argued that it has changed the nature of the atmosphere at work it has made it hostile so typically the courts have found that a hostile work environment can come about because of one incident that  very severe or several incidents that are so very severe but it only takes one if it's of your enough or if it's pervasive so not necessarily severe but that it happens over and over and over and over and over again that's pervasive any either of those or those together can result in a hostile work environment so an employer can routinely call his female employees sweetie and honey and girly but they were for to the male employees this mr ponder that mattered that it's not one severe incident but if it happens over and over again the opportunity the door is open for the female employee to argue  wait a minute i think the atmosphere here is changed i think i'm being treated differently i feel like it's discrimination examples of one incident of of of a employer changing the atmosphere doing interviews with her supervisor and a couple other executives looking for a high ranking person to join them during the course of the interviews they interviewed several people of different races at a break they all went to the bathroom the african american woman went to a female bathroom the white males who happen they happen to be white all went to the male bathroom and they act happened to exit at the same time despite the fact that usually women take longer not want to hire any more jungle bunnies so prior to that time they had not been any kind of racial she had not felt that there were any racial tensions in the workplace she did not feel disrespected but that one incident of hearing her supervisor describe african american people as jungle bunnies completely alter the workplace environment so that's another example jackie yes that's a wonderful wonderful explanation i interrupted because we're going into a break and we look forward to coming back and hearing more of this great conversation  against a complaint against their employer i think the employee who feels that he or she has a discrimination claim needs to complete his arsenal if you will you need to be sure that you are prepared to demonstrate that you have a discrimination claim based on how you've been treated in comparison to others who are outside the category about which you are complaining but also you need to look at your employer's policy because if your employer has a complaint procedure you do want to use it a it might be able to resolve the matter quickly and even if we can't be that optimistic and it doesn't really address the matter fully it does show that you made reasonable efforts using the tools that the employer has made available to you to address the concerns that you have as jackie mentioned you document the bases for your concerns not solely because you'll be taking it to a lawyer some matters never get to a lawyer but even if they don't you want to demonstrate to your lawyer that you are fueled not just by emotion but that you have facts and dates and data backing up your claim that you have been treated differently without that even if an employer wants to address your concerns they're not going to have much to go on so it's important for you to be armed with information about your employer's policies that prohibit discrimination perhaps and that support your contention that you're supposed to get that promotion or that raise and then you also need to have the documentation showing when and where you were treated differently and i was in many cases if the employee does not a fail themselves avail themselves of that written procedure and if they don't follow the process to some extent if they don't at least try that and it ends up in litigation that might be a complete defen look we have a policy you never told us you never followed the policy how can we do something and to be fair it's a it's a fairly reasonable argument so an employee really does have a good a duty to follow the procedure if there is a procedure this but i always appreciate right i mean there's not but even if there is not a procedure it is important for the employee to complain now they can call a lawyer before that if they want to and talk to them about what they think would be good most attorneys would be happy to speak with you and give you some ideas about what you need to do but were guard list you have to complain because if you don't the employer has an absolute defense i did not know and i guarantee you they will always say it so it's very very important that they do that so just to jack you what should that employee look for in situations where unions are involved i always have thought that to be a very complicated it can be complicated and just because the unions involved doesn't mean it's going to help you but that is yet another mechanism for following the procedure so if there is some requirement that you work the reunion you need to do that you need to try to do that if nothing else it's going to document that you have a complaint it's going to document that you were unhappy it's going to document that you made a claim about x y z happening in the workplace so that's important i don't think employers employees can always rely on their unions to represent all of their rights so if they can't and my experience has been that they can't always rely on their union but that they often must go through the union process first or go to the union first and when it do they approach other consultants or attorneys to to help them and and what is an attorney only good for a lawsuit or for writing a letter and scaring the employer or trying to scare them by no means unfortunately many employment discrimination claims arise or at least employers become aware of it lawyers become aware of it when it's completely adversarial or the employee has suffered what is called an adverse employment action they have lost their job they perhaps been demoted some action has been taken against them that quite frankly have they come to a consultant be it an attorney an h r professional not necessarily want to with their employer but someone who understands employment law well enough to advise them at an earlier stage it could have been avoided and so certainly i think the stage at which you marshal your resources that means looking if your union represented at your collective bargaining agreements grievance procedure and whether it covers discrimination looking at your employer s complaint process documentation what you think might be the beginning of a problem is the stage at which you feel while still employed that i'm not necessarily getting the benefit of all of the resources that are made available to advance the careers of others in x category i n y category i'm not getting the benefit of all of those resources and then i think the first thing you try to do is give your employer the benefit of the doubt and try that get those resources made available to you ask for them demonstrate a desire and a willingness to advance within the organization and explain candidly you need some help to know how to do that and see if you can get some hard answers that will provide the guidance you need to help your career at that stage only then when you have made a good faith effort to use the resources that were made available to you should you say my career is languishing nonetheless i am still being treated differently from these other individuals because of my gender religion race national origin what have you my age and as a result i think it is now time to think about how to bring a claim to make a formal complaint and at that point certainly if you have not contacted and consulted with an attorney or another  employment law professional up until that point you should then because you're going to want to make a complaint in writing to your employer because jackie said they can't address discrimination complaints they don't know about so jack and you seem to be in agreement with that oh most definitely you know it's fair i mean i will say i do mostly plaintiff work i'm very pro plaintiff even though i do management also and if someone doesn't know something's happening they can't correct it so i'm going to we only have a few minutes left but i wanted you to talk to us a little bit about the type of remedies for discrimination what type of things should an employee be looking for when they feel discriminated against well it depends on what they what stage they are if i file a suit on their behalf or even if i write a demand letter on man their behalf i'd be looking first for what what would you like me to do for you that's what i said my client what would in all the best possible world what would you like me to do for you and sometimes if the employee is still there or maybe they work there for a long a long period of time they want to stay in the workplace i had a client who worked on an assembly line she had worked on that assembly line for twenty five years and had worked her way up through the company she had barely an education i think she got out of eighth grade years and years ago and she had slowly residue that company she wasn't interested in leaving she just wanted to have a not hostile work environment right so what she wanted was i want to have my pay grade increased and i don't want people snapping my bra so that's three maybe she wants to stay there so so sometimes people won't want to stay sometimes they want the employer to do something specifically we call that specific performance sometimes they want that sometimes they're out of the workplace and they say well look i've suffered my salary suffer and i wasn't paid paid correctly so i may want front pay i want a may want back pay so this is looking at the difference of what i would have made if i stayed or what something that strikes fear in the heart of employers punitive damages or damages to punish but for their behavior for their behavior or for their behavior s so this is an amount where this is an area where juries are given quite a lot of latitude if the behavior is particularly egregious and it has to rise to quite a high level then they employ can get punitive damages and that's plainly plainly to punish the employer for doing that well you mentioned in new jersey and so let's end with a new jersey specific question which i like for both of you to answer what is the environment for resolving employment discrimination  good one in new jersey currently in the courts and in the business world and if it is not just is it a good environment i think and i don't know if andrea would agree with me i think new jersey is a fantastic place to be an employee i would say our new jersey law against discrimination is very strong there is a fee shifting statute within that that allows the employee to collect attorney's fees which they normally would have to if they won they would have to turn around and pay their own attorney this is for years possibly a litigator on their behalf  with this fish shifting statute the side who loses the employer may have to not only pay their attorneys but pick pay the attorney of the plaintiffs i think prevailing party that's right so that's very strong pro employee so if this time i think it's very strong i think it's always been strong there's been recent litigation involving issues about arbitration where employers are trying to take away or reduce employees rights to file lawsuits courts have pretty much said no no way for that the employee certainly has their years to two years to litigate so in my opinion largely a pro employee state i don't think it's unfair but that's my finding andre what are you going to do well certainly having litigated on behalf of court gratian that operate nationally i will say that new jersey along with california and a handful of other states are seen as being more kind if you will and to to employees and so to that extent as an employer you have to be aware of the laws that protect employees and make sure that you're complying by them and yes it does mean that employees do have the right to litigate their discrimination claims you can't you can have arbitration to discriminate other types of wrongful termination but discrimination for the most part are typically required to comply with the federal and state laws that guarantee them certain time periods within which to pile and which provide for protection laws that are not protection of employment discrimination not covered by the federal laws such as sexual