By Bryan A. Chapman, Esquire
The employment-at-will doctrine is a insurmountable barrier to most workplace discrimination claims. Employment-at-will gives employers to right to terminate workers at any time and for any reason. This also applies to other adverse employment actions, such as, denials of promotion, demotions, and undesirable reassignments.
For example, if a black worker is terminated by a white supervisor, the termination, in and of itself, is not proof of race discrimination. To win a race discrimination claim, the black worker needs evidence that the white supervisor was motivated by racial biased.
Employers Are Proactive
Employer have lawyers, consultants, and HR personnel to advise them on how to handle current and potential workplace discrimination claims. For instance, if a white supervisor wishes to terminate a black worker because of racial bias, the supervisor will create a paper trail that indicates the worker’s job performance was deficient in advance of the termination. Should the black worker file a race discrimination claim, the paper trail indicating deficient job performance will be presented as evidence that the black worker’s termination was not racially motivated. And, the supervisor will become a witness for the employer.
Workers Typically Lack Proper Documentation And Witnesses
Most workers lose discrimination cases because they do not have documents and witnesses that support their claim. Workers typically rely on their memories and have a difficult time finding witnesses.
Workers Can Win With Proper Documentation and Witnesses
To establish a prima facie claim of race discrimination, a black worker would have to demonstrate four elements that:
- he or she was a member of a protected class (black);
- he or she was qualified for their position;
- he or she was discharged; and
- the termination occurred under circumstances giving rise to an inference of discrimination.
Workers who are proactive in securing documentation and witnesses to support their discrimination claims have a significantly better chance of winning. This applies to all types of discrimination claims: race, sex, national origin, religion, age, and disability. As a trial attorney, I offer the following advice in the case of a black worker who was terminated by his supervisor:
- A black worker should document his or her supervisor’s racially biased comments and actions in real time and at the earliest stages. If the supervisor claims that the worker’s job performance was deficient, the worker must demonstrate that the supervisor’s claim was merely a “pretext” for a racially motivated termination. To prove “pretext” a worker must demonstrate a pattern of solid job performance, such as, satisfactory job performance evaluations, awards, and bonuses, prior to the start of the supervisor’s racially biased behavior. A black worker should document that the supervisor treated him or her more harshly than similarly situated co-workers of a different race. A worker should document his supervisor’s comments and actions that indicate a racial bias.
- A worker should document the names of witnesses and confide in trusted co-workers and union representatives. A worker should share documentation of their supervisor’s racial bias in real time with these trusted co-workers and union representatives. Sharing these documents, via e-mail, creates an archive with time and date stamps. These co-workers and union representatives will be the worker’s witnesses.
- A worker must file a written discrimination complaint with their employer or an external government agency that handles workplace discrimination complaints. Written discrimination complaints are essential to proving a worker’s race discrimination claim.
- A worker should document the impact discriminatory behavior is having on their physical and mental health in real time. Documentation of changes in health, such as, stress, anxiety, and increased blood pressure, add credibility to claims of race discrimination. Furthermore, a worker should tell family and friends about the impact workplace discrimination is having on their health.
- A worker who is experiencing stress, anxiety, or increased blood pressure should contact medical professionals for treatment and obtain their medical records.
Proper documentation and witnesses can greatly increase the chances of a black worker winning a race discrimination claim. With this type of evidence, an employer may want to settle the case to avoid the possibility of losing at trial.
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire
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