By Bryan A. Chapman, Esquire
When a potential client contacts me, they usually want to know whether or not they have a case. Unfortunately, there is no simple answer to this question because the laws governing job discrimination are complicated and the facts of any case are subject to interpretation and change. Employers routinely deny allegations of job discrimination.
The typical employee works at the pleasure of their employer. The doctrine is called “employment-at-will” and it means that an employer can terminate an employee at any time and for any reason, good or bad, provided it is not for a discriminatory purpose.
It means that being terminated, in and of itself, is not proof of discrimination, even if the employee has a good job performance record. This doctrine also applies to promotions, demotions, and transfers. Employment-at-will is too steep a hurdle for most discrimination claims.
If an employee claims that his or her termination was discriminatory, then evidence is needed that specifically establishes a discriminatory motive on the part of the employer. Direct evidence of an employer’s discriminatory motive is rarely available. Most employers are not going to: 1) admit that employees are being terminated for discriminatory reasons or 2) engage in blatantly discriminatory behavior. However, from time to time, there are exceptions.
A discriminatory motive typically has to be proven by means of circumstantial evidence. For instance, an employee and/or group of employees are treated more harshly than similarly situated employees of a different race, sex, national origin, etc. These cases are strongest when a group of employees are alleging the same type of discrimination.
Furthermore, the employee must demonstrate that his or her job performance was not an issue. Employers typically claim that an employee’s termination was due to a non-discriminatory reason, such as, deficient job performance.
A hostile work environment claim is different from the typical job discrimination claim. These claims involve overt discriminatory behavior, such as, name-calling, slurs, jokes, innuendos, and inappropriate touching and advances that make the workplace abusive and intimidating. If an employer has notice and fails to take prompt and effective corrective action, the employer can be held liable. A hostile work environment claim can be based on race, sex, national origin, etc. These cases are strongest when a group of employees are alleging the same hostile work environment.
If a female employee complaints that a male manager or co-worker is engaging in inappropriate sexual behavior, and the employer fails to take corrective action that stops the harassment, the employer could be found liable for compensatory damages, such as, emotional pain and suffering. In their defense, employers will claim that: 1) they did not have notice of the sexual harassment; 2) the sexual behavior was not severe or was consensual; or, 3) corrective action was taken.
Retaliation involves employers who punish employees for complaining about discriminatory behavior. To establish a claim of retaliation, the employee has to demonstrate that: 1) they engaged in protected activity, such as, complaining about discrimination; 2) the punishment was severe enough to deter a typical employee from continuing to complain about discrimination; and, 3) the punishment began shortly after the complaint. Today, the most popular type of job discrimination claim is retaliation.
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire
Join Facebook group: I Need A Discrimination Lawyer