1. IPMA-HR ALBANY-CAPITAL REGION CHAPTER
Defending Title VII Complaints
September 23, 2016
Presented by Hinman Straub P.C.
Joseph M. Dougherty

2. Overview Unlawful Workplace Conduct Enforcement Statistics
Discrimination by Type
Preventing Workplace Harassment Liability
Harassment Complaints
Defending a Harassment Claim

3. Prohibitions On Unlawful Workplace Harassment
Title VII of the Civil Rights Act of 1964
(42 U.S.C. § 2000e)
Americans with Disabilities Act
(42 U.S.C. § 12111)
Age Discrimination in Employment Act
(29 U.S.C. § 630)
Genetic Information Nondiscrimination Act
(42 U.S.C. § 2000ff-1(a))
New York Human Rights Law
(NYS Exec. Law § 296)
Retaliation (all of the above)

4. E.E.O.C. Statistics
The total number of charges for unlawful discrimination have dramatically increased in the past decade.
In 1997, the U.S. Equal Employment Opportunity Commission (E.E.O.C.) received 80,680 unlawful discrimination charges.
In 2012, that number jumped to 99,412. (NYSDHR Charges are dual filed with E.E.O.C.)
NYS represents 4% of all national charges or 3,914.
Retaliation charges have doubled during the same time period. In 1997, the E.E.O.C. received 18,198 charges. In 2012, this number soared to 37,836.
The E.E.O.C. secured approximately $365.4 Million through the administrative process (does not include private litigation).
Average administrative settlement in 2012 for meritorious claims through E.E.O.C. was approximately $20,000.
Statistics available at:

5. E.E.O.C. Statistics By Type
In 2012, total charges by type of discrimination alleged were as follows:
Discrimination Alleged Claims %
Race , %
Sex , %
National Origin , %
Religion , %
Color , %
Retaliation , %
Age , %
Disability , %
Equal Pay , %
GINA %

6. Title VII Statistics
In 2012, Title VII claims represented 72% of all workplace discrimination claims
In 1997, there were 58,615 Title VII charges
In 2012, Title VII charges increased to 71,578
E.E.O.C recoveries based on Title VII claims totaled approximately $260 Million in 2012
Statistics available at:

7. E.E.O.C. Statistics
The total number of charges for unlawful discrimination have dramatically increased in the past decade.
In 1997, the U.S. Equal Employment Opportunity Commission (E.E.O.C.) received 80,680 unlawful discrimination charges.
In 2012, that number jumped to 99,412. (NYSDHR Charges are dual filed with E.E.O.C.), though that figure has since declined to 89,385 in 2015.
NYS represents 4% of all national charges or 3,914 in 2012, and 3,669 in 2015.
Retaliation charges have doubled during the same time period. In 1997, the E.E.O.C. received 18,198 charges. In 2012, this number soared to 37,836, and has continued to grow to 39,757 in 2015.
The E.E.O.C. secured approximately $365.4 Million in 2012, and $525 Million in 2015 through the administrative process (does not include private litigation).
Average administrative settlement in 2012 for meritorious claims through E.E.O.C. was approximately $20,000.
Statistics available at:

8. E.E.O.C. Statistics By Type
In 2015, total charges by type of discrimination alleged were as follows:
Discrimination Alleged Claims %
Race , %
Sex , %
National Origin , %
Religion , %
Color , %
Retaliation , %
Age , %
Disability , %
Equal Pay %
GINA %

9. Title VII Statistics
In 2012, Title VII claims represented 72% of all workplace discrimination claims. Recently, this percentage has remained stable, as 71.5% of workplace discrimination claims were Title VII claims in 2015
In 1997, there were 58,615 Title VII charges
In 2012, Title VII charges increased to 71,578
In 2015, Title VII charges decreased to 63,900
E.E.O.C recoveries based on Title VII claims totaled approximately $260 Million in 2012, and $230 Million in 2015
Statistics available at:

10. Title VII Title VII prohibits employment discrimination based on:
Race
Color
Religion
Sex (including sexual harassment) and
National origin
The statute applies to employers with fifteen (15) or more employees, employment agencies and labor organizations

11. Title VII Sexual Harassment
The U.S. Equal Employment Opportunity Commission (E.E.O.C.) defines sexual harassment in three classes:
unwelcome sexual advances
requests for sexual favors, and
other gender-based verbal or physical conduct
When submission to such conduct is made a term or condition of an individual’s employment either explicitly or implicitly

12. E.E.O.C. Distinctions
The E.E.O.C’s guidelines distinguish sexual harassment by dividing it into two different categories of conduct:
Quid Pro Quo
Occurs when submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual (29 C.F.R. § [a][2])
Hostile Work Environment
Occurs when such conduct has the purpose or effect of interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment (29 C.F.R. § [a][3])

13. When can Sexual harassment Occur?
Sexual Harassment can occur:
Where the harasser and the victim are of different sex
Where the harasser and the victim are of the same-sex
Where a heterosexual employee harasses another employee of the same gender with conduct that is sexual in nature but not motivated by sexual desire. (See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer

14. Is it Sexual Harassment?
Does it meet the objective standard?
“The employee/victim must show that an ordinary, reasonable and prudent person in similar circumstances would be or would have been similarly offended by the conduct in question.”
Is the conduct unwelcome?
Unwelcome does not necessarily mean involuntary
For example, an individual may voluntarily consent to and actively engage in conduct that is unwelcome because of their fear of losing their job.
Courts have defined “unwelcome” as “the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”
See, Henson v. City of Dundee, 682 F. 2d 897, 903 (11th Cir. 1982).
Does the conduct constitute a single isolated incident or is there a pattern or policy of such conduct?
A single isolated incident is insufficient to establish a hostile work environment unless the employee can show that it was:
extraordinarily severe; or
“sufficiently continuous and concerted to have altered the conditions of [his or her] working environment” resulting in pervasive conduct.

15. Who Else Can Complain?
It is not necessary that the person filing a complaint be the victim
Third parties may complain if one or more of the following occur:
Submission to sexual demands is a general condition of employment;
Harassment is directed at others, adversely affecting the other person’s work environment ; or
Offensive sexual conduct, even if consensual between the parties, is creating a hostile work environment for a third party.

16. Recent Case Law
Pellegrini v. Sovereign Hotels, Inc., 740 F. Supp. 2d 344 (N.D.N.Y. 2010) The plaintiff alleged that her male co-worker regularly made vulgar comments such as “nice ass,” “nice tits,” and referring to her as a “bitch,” forcibly kissed and fondled plaintiff on several occasions and repeatedly threatened her with physical harm. In addition to finding an objective hostile work environment based on these facts, the court also found that plaintiff subjectively perceived her environment to be abusive and hostile, given that she complained about the conduct to her supervisors on multiple occasions.

17. Case Law
Scott v. City of New York Dept. of Correction, 641 F. Supp. 2d 211 (S.D.N.Y. 2009) the court found the alleged conduct of the plaintiff correction officer’s union president - making sexual advances on the female officer while alone with her in his office, culminating in his putting his tongue into the female officer’s mouth twice, and telling her to undress after she rejected his advances - was an “extraordinarily severe” single event that materially altered conditions of the plaintiff‘s union membership on account of her sex.

18. Discrimination and Harassment Complaints
Get HR involved ASAP
Do not settle disputes on your own
Be prepared for the EEOC and NYSDHR
Be honest
Make sure statements are consistent
Document everything
Copies of complaint
Memorandum to file
Corrective measures taken
Monitoring
Counseling
Discipline

19. Discrimination and Harassment Complaint Investigations
Select an appropriate investigator
the investigator has time to devote to the investigation
consider potential conflicts of interest (actual or perceived)
the possible need to use an outside investigator for confidentiality
Secure and review potential evidence
documents, s, computer files, hard drives, video recordings, surveillance tapes, audio recordings and voice mail. Issue “Investigation Hold” notices to suspend any scheduled record destruction. The last thing you need is an Enron shredfest.
Be aware that every investigation is potential evidence in a later lawsuit or administrative proceeding
Consistently prompt, thorough and effective investigations demonstrate the employer’s commitment to ridding the workplace of unlawful harassment, which is an important investigation goal 

20. Discrimination and Harassment Complaint Investigations
Give both the employee who came forward with charges and the alleged harasser an overview of how you intend to proceed during the investigation
Find out what the alleged victim’s expectations are and correct any misperceptions. Ensure that the alleged harasser understands at the outset that management has not already determined what happened
Explain the purpose of the investigation to any witness, but be general so as to avoid influencing memory
Tell everyone that full and complete cooperation is both expected and required
Each should sign an acknowledgment verifying that the information provided during the interview is true
Ask open-ended questions;
Allow the witness to explain in his or her own words

21. Discrimination and Harassment Complaint Investigations
Make note of information relevant to credibility, but avoid recording actual conclusions regarding credibility.
Observe subjects for implausible statements, questionable physical and verbal reactions, inconsistencies, etc.
Instruct the witness not to discuss interviews with co-workers or with other potential witnesses. Explain that confidentiality is necessary to ensure the integrity of the investigation.
Explain the prohibition on retaliation. Instruct the witness to report any perceived retaliation right away. Prepare your interview notes professionally—they may be evidence in a later legal proceeding
Avoid including irrelevant information in your notes. Document facts and observations, not opinions.

22. Age Discrimination in Employment Act
The ADEA prohibits employment discrimination, including harassment, against individuals over 40 years of age.
The ADEA’s requirements apply to employers with more than twenty (20) employees, a State, political subdivisions, interstate agencies, employment agencies and labor organizations.

23. Genetic Information Nondiscrimination Act
The GINA prohibits discrimination based on genetic information, and bars employers from intentionally acquiring genetic information, including family history, about applicants and employees.
GINA also prohibits covered employers to fail or refuse to hire, or discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment of the employee, because of genetic information with respect to the employee.
GINA applies to all employers with fifteen (15) or more employees.

24. New York Human Rights Law
The NYSHRL prohibits employment discrimination on the basis of:
race
genetic predisposition or carrier status
color
marital status
creed
military status
sex
domestic violence victim status, and
national origin
age (18+ years of age),
sexual orientation (including transgender)
disability
arrest and criminal convictions
Pregnancy

25. Other Federal concerns
Consolidated Omnibus Benefits Reconciliation Act (COBRA)
Consumer Credit Protection Act
Drug Free Workplace Act of 1988
Employee Polygraph Protection Act of 1988
Employee Retirement Income Security Act
Equal Pay Act
Family Medical Leave Act of 1993
Fair Labor Standards Act of 1938
Health Insurance Portability and Accountability Act of 1996
National Labor Relations Act
Labor Management Relations Act of 1996
Mental Health Parity Act
Newborns’ and Mothers’ Health Protection Act of 1996
Occupational Safety and Health Act of 1970
Older Workers Benefit Protection Act (OWBPA)
Electronic Communications Privacy Act of 1986
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
Pregnancy Discrimination Act (PDA)
Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA)
Worker Adjustment and Retraining Notification Act of 1989

26. Other NYS Concerns Whistleblower Protection Law Minimum Wage Law
Bone Marrow Donation Leave Law
Jury Duty Leave Law
Military Leave Law
Voting Leave Law
Genetic Testing Law
Polygraph Testing Law
Smoking Discrimination Law
Legal Activities Law
Minimum Wage Law
Overtime Pay Law
Wage Payment Law
Maximum Hours Law
Meals and Rest Period Law
Child Labor Law
New Hire Reporting Law
Unemployment Insurance Law
Fair Employment Practices Law
Workers’ Compensation Law
Wage and Hour Law

27. Preventing Workplace Harassment Liability
An employer may be held vicariously liable for the unlawful acts of an employee engaging in harassment/discrimination, employers should take the necessary steps to prevent liability
Employers should consider implementing the following which can result in an affirmative defense:
Policies
Training, and
Investigation Procedures (post-complaint)
“The Faragher-Ellerth Defense”
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 745 (1998); See also, Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

28. EEO Policies Lack of EEO policy = Difficulty proving reasonable care.
Written EEO policy:
A description of prohibited conduct;
Complaint procedure:
More than one avenue of complaint;
Assures cooperation and confidentiality to the greatest extent;
Includes prompt, thorough and impartial investigation; and
Ensures immediate and appropriate action
Prohibits retaliation except where complaint is found to be malicious.
Binding or non-binding Arbitration?
See EEOC, Enforcement Guidance:

29. EEO Policies Affirmative defense when:
Employer exercised reasonable care to prevent/correct harm; and
Employee unreasonably failed to take advantage of preventative or corrective opportunities provided by employer .
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)
“Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.”

30. EEO Policies (Preventative)
E.E.O.C. policies are not worth the paper printed on if not able to prove notification to employees
Posting in central location with other mandatory postings
Employee Handbooks
Signed confirmation of receipt
Pellegrini v. Sovereign Hotels, Inc., 740 F. Supp. 2d 344, 353 (N.D.N.Y. 2005)

31. EEO Training (Preventative)
Experienced presenter
Entire employee population
Proof of attendance
Employer policy/ handbook review
A word about training content
Specific training for supervisors:
Issue spotting
Documentation
Handling complaints

32. Harassment Complaints
Individuals traditionally pursue three avenues of complaint:
Complain to the employer whether or not through internal procedures;
Complain administratively with a federal, state or local government agency; and/or
Take direct legal action in city or state court.

33. EEO Investigations Internal Complaints (Corrective)
Liability if complaints not thoroughly investigated:
Prompt investigation of complaints
2 months too long (Ayers v. Connecticut, 2002 U.S. Dist. LEXIS (D. Conn March 28, 2003)
Observation triggers need for investigation

34. EEO Investigations (Corrective)
Internal complaints should trigger immediate investigation
Investigation must meet the standard of reasonable care:
Two or more trained and experienced employees should conduct investigation
HR representative with no experience and a 5 month tenure who conducted 4 day investigation did not meet reasonable care standard (Bennett v. Progressive Corp., 225 F. Supp. 2d 190 (N.D.N.Y. 2002)
Using legal counsel to conduct investigation
Good or bad?

35. EEO Investigations (Corrective)
Investigation procedures:
Itemize triggering facts, laws and allegations
Identify and Implement necessary interim actions and temporary measures
Inventory what you know and what you need to know
Identify preliminary relevant witnesses and information sources
Identify the order of information gathering and timeline
Conduct interviews
Reassess and recalibrate (Repeat 1-6)
Generate factual findings and related conclusions

36. EEO Investigation Interviews
Notify witness of non-retaliation policy
Use silence technique
Listen more than you speak
Get full picture “and then?” Probe for exact words
Don’t interrupt
Don’t listen for or be distracted by “buzz words” the ultimate determination is in the hands of the investigator
Avoid confrontation
Fact finding not debating
Do not detain interviewee against his/her will (non-cooperation is sometimes good)
Do not disclose perceptions of evidence or allegations or investigation strategy
Take breaks between interviewees to reassess order, questions, and strategy
Maintain objectivity
No cross-examination

37. Investigation Documentation
Recorded
(Audio/Video)
Stenographer
Sworn statements
Witness notes
Witness summaries
Final report

38. Legal Concerns associated with Investigations
False imprisonment
Defamation
Intentional Infliction of Emotional Distress
Retaliation Claims

39. The Investigation Report
Overview:
Identify witnesses and the substance of their information that supports factual findings
What happened?
Who was responsible/ accountable?
When did it happen?
Assess witness credibility and resolve relevant disputes of facts or accounts
Where did it happen?
Why did it happen?
If inconclusive cite conflicting accounts, lack of physical evidence and credibility issues
Identify physical evidence and explain how it supports your factual findings

40. Defending Harassment Claims
There are three administrative entities with whom an individual may file a sexual harassment complaint:
U.S. Equal Employment Opportunity Commission
Condition precedent to a Federal Lawsuit
New York State Division of Human Rights
The New York City Commission on Human Rights

41. E.E.O.C. Statute of Limitations
A charge must be filed with the E.E.O.C. within 180 days from the last date at which the sexual harassment occurred.
Note: Holidays and Weekends are included in this time frame.
For New York State residents, this time limit is extended to 300 days (because New York State has laws that prohibit employment discrimination on the same basis)
(42 U.S.C. 2000e-5[e][1])
If a charge is not filed within this time period, the statute of limitations period is considered to have run and the individual is barred from bringing a claim in federal court unless “continuation doctrine” applies .

42. E.E.O.C. Procedure
The E.E.O.C. does not conduct hearings or award damages
The E.E.O.C. only investigates the factual findings of the claim to determine whether or not harassment has occurred and whether an individual has a claim that may be pursued in Federal Court
They may attempt to resolve the matter through conciliation or mediation

43. Steps to File a Federal Complaint Right to Sue
Once the E.E.O.C. has investigated a claim, they issue a probable cause or no probable cause finding
Upon such finding, the individual receives a Notice of Right to Sue and has 90 days from the date the letter is issued to file a claim in federal court
Note: The federal court claim can also include state claims as they may provide different damages

44. Damages under Title VII of the Civil Rights Act of 1964
The types of relief afforded through federal law depend on the type of discrimination and the impact on the victim
Forms of relief range from requiring an employer to prevent any discriminatory practices to receiving punitive damages
42 U.S.C. § 2000e-5 (f), (g)

45. Damages
Damages may include back pay, front pay, reinstatement, lost benefits, compensatory damages, punitive damages, attorneys’ fees and prejudgment interest
Compensatory and punitive damages can be capped depending on the number of employees employed by the employer
Note: In order to receive punitive damages, the employee must prove that the employer acted with malice or reckless indifference to the individual’s rights

46. DamageS -Title VII of the Civil Rights Act of 1964
Title VII Limit on Compensatory & Punitive Damages
For employers with employees, the limit is $50,000
For employers with employees, the limit is $100,000
For employers with employees, the limit is $200,000
For employers with more than 500 employees, the limit is $300,000
Information on Damages pursuant to Title VII, available at

47. Filing a Complaint with N.Y.S. Division of Human Rights
In order to file a complaint with the N.Y.S. Division of Human Rights, an individual must complete and sign a form at a regional office or available on their website: (
There is no filing fee

48. NYSDHR Statute of Limitations
The complaint must be filed within one (1) year after the alleged discriminatory act
An action may also be filed in state court up to three (3) years after the discriminatory act (N.Y. Exec. Law § 297)

49. NYSDHR Procedure
Once a complaint has been filed, the N.Y.S. Division of Human Rights will investigate the claim.
Within one hundred days (100) after the complaint has been filed, the Division will determine whether it has jurisdiction and whether there is probable cause to believe that discrimination occurred.
Written submissions
Fact finding conference
If the Division does not find probable cause, an order dismissing the allegations will be served upon the complainant.
An individual with a dismissed claim may appeal to the New York State Supreme Court within 60 days.
If the Division finds probable cause, the complainant will be notified of these findings and a public hearing will ensue.
(N.Y. Exec. Law § 297 [2][b] [McKinney’s])

50. Claimant, Employer and Witnesses are sworn
Filing a Complaint with N.Y.S. Division of Human Rights - Public Hearing
At a public hearing, an Administrative Law Judge presides over the case and has the discretion to award damages
Claimant, Employer and Witnesses are sworn
Claimants appointed counsel

51. Filing a Complaint with N.Y.S. Division of Human Rights - Damages
An Administrative Law Judge has the authority to order the employer to cease and take appropriate action in the matter as well as award damages to the complainant
An order by the Administrative Law Judge may be appealed by either party to the New York State Supreme Court within 60 days (N.Y. Exec. Law § 298 [McKinney’s]).

52. Damages New York State
Whether a state lawsuit is filed or a hearing is conducted through the N.Y.S. Division of Human Rights, damages awarded may include:
Back Pay, Front Pay, Reinstatement, Lost Benefits, Prejudgment Interest
Compensatory Damages(no cap on maximum amount)
New York State law does not provide for attorney fees or punitive damages for unlawful discrimination cases.

53. Damages Awarded in New York State - Civil Fines & Penalties
Civil fines and penalties may be imposed either through a state agency proceeding or through a lawsuit brought in N.Y.S. courts
Civil Penalties are payable to New York State
Fines up to $50,000 may be imposed upon finding unlawful discriminatory conduct
In situations in which there is a finding that there was willful, wanton, or malicious conduct, the penalty imposed may be up to $100,000

54. New York State Tort Claims
In addition to the unlawful discrimination claims alleged in a federal, state or city lawsuit, an individual may also include state tort claims
These may be included in a lawsuit against the individual harasser, not the employer
Such tort claims may include defamation, emotional distress, intentional infliction, etc.
Note: To bring a claim in State court, an individual has one year to bring an action

55. Protection in New York City
In addition to the New York State discrimination laws, New York City has their own anti-discrimination laws
The New York City Commission on Human Rights enforces the New York City Human Rights Law (Admin. Code of the City of New York § 8-101)
The complaint, investigation and hearing process is similar to that of the State
More information may be found at
Practice note, the Faragher-Ellerth affirmative defense is not available for alleged violations of the NYCHRL. (See, Zakrzewska v. The New School, 2010 WL (2010)

56. New York State Attorney General’s Office
In addition to filing a complaint with the N.Y.S. Division of Human Rights, an individual also has the option of filing a complaint with the Civil Rights Bureau of the N.Y.S. Attorney General’s Office
Being that the office represents the People of the New York State, they do not investigate claims against individuals or N.Y.S. agencies

57. New York State Attorney General’s Office
The Attorney General’s Office investigates and prosecutes cases that allege a continuous pattern, practice or policy of discrimination
Their goal is to attempt to resolve current and future discrimination
However, filing a claim with the Attorney General’s office is not a substitute for filing a claim in state court nor does it satisfy the administrative requirements of bringing a case in state or federal court
The purpose of filing a claim with the Attorney General’s office is generally to ensure that future discrimination is prevented, but it does not provide any form of direct relief or damages to the individual complainant
Therefore, it would be wise, in addition to filing a complaint with the Attorney General’s office, to file a charge of discrimination with the E.E.O.C. or state/city Human Rights Agency

58. Litigation General Facts
Filing Suit in State Court
Statute of Limitations: Three (3) years from the date of the last harassing act
Any separate actions that may have occurred prior to the three year period may not be covered
Under N.Y.S. employment discrimination laws, an employee may bring a claim against either the individual harasser or against the employer
Filing Fee : $210.00
Filing Suit in Federal Court
In virtually all circumstances, must file with a charge with the E.E.O.C. and receive Right to Sue Letter prior to filing suit
Filing Fee: $350.00

59. Practice Tips Administrative & Litigation
Contact past and current employers to obtain information about work performance, ethics, and any similar incidents that may have occurred
Avoid libel and defamation
FOIL information from the NYSDHR
Evaluate short and long term goals with respect to employee’s employment

60. Establishing a Prima Facie Case For Harassment
For a case against a supervisor/employer engaging in the harassing conduct, an employee must prove that:
He or she is a member of a protected class;
They were subjected to discriminatory or harassing conduct;
“But for” employee’s (gender, age, disability etc… ), he/she would not be subject to the harassment / discrimination;
The harassment / discrimination affected a term or condition of employment, and/or had the purpose or effect of unreasonably interfering with the work environment, and/or created an intimidating, hostile, or offensive work environment; and
For a case against a co-worker, all the above elements are required in addition to proving that:
The employer knew or should have known about the harassment / discrimination, and failed to take prompt remedial action.
(See, Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 [2d Cir. 1993])

61. McDonnell Douglas Burden Shifting Analysis
Employee has established a prima facie case
Burden of production then shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action
Should the employer carry this burden, the employee must then demonstrate that the legitimate reasons offered by the employer were a pretext for the discrimination
McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973)

62. Retaliation “The ongoing Threat”
Pursuant to federal, state and city laws, employers may not retaliate against individuals who have filed a charge, testified, or participated in any manner in an unlawful discrimination investigation
If such retaliation does occur, an individual has an additional retaliation claim that they may pursue regardless of the validity of the original claim
See e.g., N.Y. Exec. Law § 296 (1)(e)(McKinney’s); 42 U.S.C. § 2000e-3 (a)

63. QUESTIONS?