Proving Discrimination

Source: Workplace Fairness

 

Anti-discrimination laws make it illegal for an employer to take adverse employment action against you if you are a member of a protected class, or category of persons. Not all types of discrimination are protected under the federal anti-discrimination laws. Also, while the federal laws protect you against workplace discrimination, it is often very difficult to prove that discrimination occurred.

There are several questions that you can ask yourself to help determine whether you were discriminated against and whether you will be able to prove that the discrimination occurred.

  1. What is discrimination?
  2. What are the different types of discrimination claims that I could bring?
  3. What evidence is needed to prove my employer intentionally discriminated against me?
  4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?
  5. What if my employer denies discriminating against me?
  6. What can I do if my employer’s reason is a cover-up for discriminating against me?
  7. What evidence do I need if my employer’s seemingly neutral policy, rule or practice neutral practice had a discriminatory effect?
  8. What are the remedies if I win my discrimination case?


1. What is discrimination?

There are several federal laws that protect you from discrimination in the workplace. Each federal law makes it illegal to discriminate against certain categories of people, known as protected classes. Not all types of discrimination are protected under the federal laws. The federal anti-discrimination laws only protect you if you fall into a protected class or category. The protected classes differ under the various federal laws and are summarized below.

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex.Title VII also makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of age. This law protects people who are 40 or older.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.

Some state and local laws also make it illegal to discriminate against someone on the basis of gender identity, immigration status, language, family responsibilities, sexual orientation, and/or genetic information. See what categories your state protects against in our Filing a Discrimination Claim page.

2. What are the different types of discrimination claims that I could bring?

If you believe you have been discriminated against based on your status as a member of a protected class or category, there may be several types of claims that you could bring.

Discriminatory Intent/Treatment
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.

Disparate Impact
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice rather than the intent behind it. The anti-discrimination laws make it illegal for a seemingly neutral policy, rule or practice to have a disproportionate adverse affect on members of a protected class. For example, a strength requirement might screen out disproportionate numbers of female applicants for a job, or requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect candidates of color.

Retaliation
A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.See the Retaliation Page for more information about retaliation claims.

3. What evidence is needed to prove my employer intentionally discriminated against me?

There are two types of evidence that can be used to prove discrimination: direct and circumstantial.

Direct Evidence
Direct evidence is the best way to show that discrimination occurred. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.

For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.

Circumstantial Evidence
The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.

4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?

According to the “McDonnell-Douglas Test,” named for a famous Supreme Court decision, an employee must first make out at least a “prima facie case” to raise a presumption of discrimination. To make out a prima facie case of discrimination, an employee must be able to answer “yes” to the following four questions:

  • Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
  • Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
  • Did your employer take adverse action against you? Adverse action includes hiring, promotions, termination, compensation and other terms and conditions of employment.
  • Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)? For example, if you are disabled, were you replaced by someone who is not disabled?

If you can show at least these things, the law will presume, since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.

The “circumstantial evidence” test is flexible. It has been modified over time to avoid a mechanistic approach to discrimination cases. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. The law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force.

An employee may have sufficient circumstantial evidence to prove discrimination if they are able to answer “yes” to several of the following questions:

  • Were you treated differently than a similarly situated person who is not in your protected class?
  • Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, “Women don’t belong on a construction site” or “Older employees are set in their ways and make terrible managers.”
  • Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
  • Does your employer have a history of showing bias toward persons in your protected class?
  • Are there noticeably few employees of your protected class at your workplace?
  • Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
  • Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
  • Are there statistics that show favoritism towards or bias against any group?
  • Did your employer violate well-established company policy in the way it treated you?
  • Did your employer retain less qualified, non-protected employees in the same job?

If you answered, “Yes” to the four questions in the McDonnell-Douglas Test and to several of the questions above, you may be able to establish a presumption that your protected class status caused the adverse employment action.

No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.

5. What if my employer denies discriminating against me?

Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you.

In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The law only requires the employer to articulate, or state, a reason for its conduct. It does not have to prove that it is the true reason.

A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence, as discussed further below.

If the employer cannot offer a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, don’t count on this happening. You may think, “My employer can never come up with a good reason for firing me!” Recall, however, that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.

6. What can I do if my employer’s reason is a cover-up for discriminating against me?

Assuming that your employer can offer any explanation at all for terminating your employment, you must next consider whether you can prove that the reason is just a pretext, a cover-up for discrimination. You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:

  • The stated reason is factually untrue
  • The stated reason is insufficient to have actually motivated your discharge
  • The stated reason is so riddled with errors that your employer could not have legitimately relied upon it
  • Your protected status is more likely to have motivated your employer than the stated reason
  • Powerful direct or circumstantial evidence of discrimination

In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false AND that your protected status played a role in your termination.

7. What evidence do I need if my employer’s seemingly neutral policy, rule or neutral practice had a discriminatory effect?

Proving a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create a presumption that the employer’s seemingly neutral policy, rule or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. If your employer is able to show that the policy, rule or practice was a business necessity, then you can still win if you are able to prove that your employer refuses to adopt an alternative policy, rule or practice with a less discriminatory effect.

8. What are the remedies if I win my discrimination case?

  • Back Pay. Back pay is lost earnings resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
  • Front Pay.Front Pay is lost future earnings resulting from the discrimination.
  • Lost Benefits. Lost benefits may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
  • Emotional Distress Damages. Emotional distress damages, which are also called pain and suffering, are mental or emotional injuries as a result of the discrimination.
  • Punitive Damages. Punitive damages are intended to punish the employer for particularly egregious conduct.
  • Attorneys’ Fees. In addition to the damages you can recover for your injuries, you can also win an award of attorneys fees, expert witness fees, and court costs.

 

This selection was originally excerpted from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Prevent Employment Discrimination and Lawsuits

In employment discrimination lawsuits, the business always loses, even if that loss is a diminished public reputation. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success.

Retaliation Discrimination Lawsuits Are Most Common

Statistics from the Equal Employment Opportunity Commission (EEOC) show claims regarding retaliation discrimination topped the list again in 2018. Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.

Here’s the complete breakdown from EEOC from 2018 complaints:

  • Retaliation: 39,469 (51.6% of all charges filed). Historically, retaliation complaints are the most common ones filed with the EEOC.
  • Sex: 24,655 (32.3%). Employment discrimination by gender rose to the second most commonly filed complaint.
  • Disability: 24,605 (32.2%)
  • Race: 24,600 (32.2%)
  • Age: 16,911 (22.1%)
  • National Origin: 7,106 (9.3%)
  • Color: 3,166 (4.1%)
  • Religion: 2,859 (3.7%)
  • Equal Pay Act: 1,066 (1.4%)
  • Genetic Information: 220 (.3%)

Sexual Harassment Charges Increase

The agency also received 7,609 sexual harassment charges—a 13.6% increase from 2017 and it attributes the increase to the #metoo movement pushing harassment into the spotlight. The EEOC reports obtaining $56.6 million in monetary benefits for victims of sexual harassment in 2017.

Rising Costs of EEOC Suits Expensive for Employers

From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization, says Shanti Atkins, an ethics and compliance specialist. These include the costs of:

    • Distraction: The organization’s staff will spend months gathering and preparing documents while an internal investigation is conducted, and time is invested in fighting the claim.
    • DepressionEmployee morale will suffer under the constant pressure of a lawsuit.
    • Blemished reputation: An employer known as an employer of choice for recruiting and retaining desirable employees—whether found guilty or innocent—may be under a cloud.
    • Actual attorneys’ fees: These can cost as much or more than an eventual settlement, if the employer is found guilty.
Jury awards are expensive for employers. Class action lawsuits, which are also increasing, generally result in lower per-claimant awards but can cost an employer millions of dollars in cash and untold millions in unattributed fallout.

Employees who do not believe their complaint was adequately addressed by their employer during a normal internal complaint process—or in situations where the harassment or discrimination behavior continues—may file a claim with the EEOC. Only a tiny fraction of charges filed with the EEOC result in a lawsuit, says diversity communications consultant Gail Zoppo. So, even if the EEOC issues a “right to sue,” to an employee, the individual may have to invest significant resources in legal counsel, and only 1% of employees win their case.

How Employers Can Prevent Employment Discrimination

Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of a lawsuit before taking a few simple steps that could have prevented years of pain.

Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits.

Further, their employment discrimination policies, preventative measures, and practices to create a healthy workplace culture, can work in their favor. The employer may escape significant damage if they demonstrate these actions:

  • Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment, or retaliation to the company. Preferably, employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
  • The policy should communicate how an employee complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders.
  • The policy should discuss the nature of retaliation, and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
  • Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur.
  • Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment, or retaliation situations.
  • Employment discrimination, harassment, retaliation, bullying, anger, and potential violence should all be addressed together as unacceptable in your workplace. Effective training must teach that all of these concepts and behaviors integrate, intersect, and are woven together to create a supportive, nondiscriminatory, employee-friendly work environment.
  • Mandatory employee training should address many of the same issues as the managers’ training relative to employment discrimination. Cost-effective online training solutions are available for portions of this employee training. All employees must sign off on a training record to indicate they are aware of and understand the employer’s policy and complaint process.
  • Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination—and all forms of harassment and retaliation—should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
  • Act in a timely manner. Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint all the way through to appeal, when necessary.

As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, and employee preventative training. Your good faith efforts to prevent employment discrimination, harassment and retaliation may serve you well—increasingly important in the litigious future.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Discrimination Against Women in the Workplace: Everything You Need to Know

Source: UpCounsel

Discrimination against women in the workplace is when an employer treats a female employee less favorably than the employer would a male.

Discrimination Against Women in the Workplace?

Discrimination against women in the workplace is when an employer treats a female employee less favorably than the employer would a male employee specifically because of the employee’s gender.

Examples of discrimination against women in the workplace are when a woman is rejected for employment, when a woman loses a promotion to a less-qualified male employee, or when a woman is harmed in any way because of her gender.

Workplace Discrimination Definition

Workplace discrimination is when an employer treats either a male or female employee differently specifically because of his or her gender. Workplace discrimination is more commonly called gender discrimination or sexual discrimination.

Gender Discrimination Definition

The terms “sex” and “gender” are often used interchangeably in everyday language. But they actually have very different meanings. The term “sex” is based on anatomical identity. Social scientists use it to identify a person as male or female. The term “gender” is a cultural term for the characteristics that are generally associated with maleness or femaleness. Discrimination can be based on sex, gender, or both sex and gender. But no matter which way it is labeled, discrimination is illegal.

Federal Laws Prohibiting Workplace Discrimination

  • Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination because of race, color, religion, sex, and national original. Title VII applies to all private employers, state and local governments, and education institutions that employ 15 or more individuals.
  • Rehabilitation Act of 1973. This law essentially applies the standards of Title VII to the federal government as an employer.
  • Equal Pay Act (EPA). The EPA prohibits sex-based pay discrimination between men and women who perform under similar working conditions. The EPA applies to all employers covered by the federal Fair Labor Standards Act (FLSA).
  • Pregnancy Discrimination Act (PDA). The PDA, a part of Title VII, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.
  • Family and Medical Leave Act (FMLA). The FMLA prohibits discrimination against pregnant women and parents as well as employees with serious health conditions. In 2008, two new types of FMLA leave were created, which gives job-protected leave for family of the armed services members.

Workplace Discrimination: Promotions

In the past, qualified female employees have often been prevented from advancing to management positions in companies because of their gender. This term often used for this artificial barrier is “glass ceiling.” If this is the case, it is considered workplace discrimination against women and protected by Title VII.

Workplace Discrimination: Sexual Harassment

When a person in an authority role asks for sexual favors from an employee in exchange for a workplace benefit, it is called Quid pro quo sexual harassment. Some examples of a workplace benefit include a promotion, an increase in pay, and protection from being laid off.

It is also considered sexual harassment when a male co-worker or authority figure tells inappropriate jokes, makes threats, or exhibits any form of behavior that could intimidate a female employee or affect her ability to work. This type of sexual harassment falls under the label of “Hostile Work Environment.”

Workplace Discrimination: Breast-Feeding

Currently, there are no federal laws that protect nursing mothers. But some states have laws that make it illegal to discriminate against breast-feeding women. Some states take it a step further and require employers to give proper facilities for breast-feeding in the workplace.

Workplace Discrimination: Enforcement of the Law

The federal government agency responsible for investigating workplace discrimination complaints in workplaces of 15 or more employees is the Equal Employment Opportunity Commission (EEOC). In addition to federal laws against discrimination, there are also state laws against discrimination in most states. These states have their own agencies to enforce the laws.

Legal relief for victims of workplace discrimination may include:

  • Reinstatement
  • Back pay
  • Promotion
  • Compensatory damages (emotional pain and suffering)
  • Punitive damages (damages to punish the employer)
  • Payment of attorney and expert witness fees
  • Payment of court costs

To reduce the chance that discrimination will occur again, an employer may be legally required to take corrective action against the source of the discrimination and to stop the discriminatory practice involved in the case.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



What Employees Need to Know About D.C.’s Medical Marijuana Laws.

As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users.  Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.

The Act states, “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”

The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.

Act Number A23-0114 specifically protects District of Columbia government employees who are medical marijuana users, but it does not protect private sector employees or federal employees who are medical marijuana users.  Nationally, laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.

In the past, an employer could terminate an employee who tested positive for marijuana.  The Americans with Disability Act (ADA) does not protect medical marijuana users and declares marijuana an illegal substance.

However, the current trend, in some state and local courts, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in states and localities where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users.

Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users.  A private sector employer could terminate an employee who failed a drug test for marijuana, even if the employee is a medical marijuana user.  Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”)

However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether a District of Columbia court, applying local laws, could determine that private sector District of Columbia employees who are medical marijuana users have similar protection.

Bryan A. Chapman, Esquire

bchapman@baclaw.com

www.baclaw.com

202 508-1499

Employees may prevail against employers who use false accusations to hide severe retaliatory behavior.

Victims of workplace discrimination and/or harassment are encouraged to file a complaint with their employer or a government entity, such as, the Equal Employment Opportunity Commission (EEOC).  Filing a complaint is generally a prerequisite to pursuing a claim in state or federal courts.

However, filing a discrimination complaint can trigger a retaliatory response from the employer.  In general, retaliation is an impulsive reaction by an employer to a discrimination/harassment complaint filed by an employee.  The employer’s reaction to the employee’s complaint results in harsher treatment, which can include termination.  Like discrimination, retaliation is illegal.  Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports…”); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (The evidence here showed that the administration intended to retaliate against Gowski and Zachariah because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them.)

While retaliation is generally impulsive, some employers are more calculating in the way they retaliation against employees. These employers use pretext (false justification) to hide their true retaliatory motive.

Like a spider and its web, these employers wait for the employee to make a minor mistake and then they use the employee’s minor mistake to falsely justify a severe retaliatory response, such as, a termination.  Hamilton v. General Electric Co., 556 F.3d 428, 435 (6th Cir. 2009) (“…Hamilton alleges that the bosses heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful discharge by closely observing an employee and waiting for an ostensibly legal basis for discharge to emerge).”); EEOC v. Boeing Co., 577 F. 3d 1044, 1050-3 (9th Cir. 2009) (“…after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated.[1] These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002.”)

In court, most employers use pretext as a standard defense against an employee’s claim of retaliation.  An employee with a record of satisfactory job performance will suddenly be accused, by their employer, of poor job performance or serious misconduct.  Often, this defense ploy lacks credibility on its face.

Courts recognize that employers use pretext to hide their true retaliatory motive.  With this in mind, employees may prevail in court by proving that their employer’s justification is false and retaliatory.  An employee’s record of satisfactory job performance or good conduct often speaks for itself.  (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010); Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

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