Avoiding Discrimination in Layoffs or Reductions in Force (RIF)

U.S. Equal Employment Opportunity Commission


Making an Employment Decision?

Before implementing a layoff or reduction in force (RIF), review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws.

  • List the employees who would be laid off or terminated based on your layoff/RIF criteria.
  • Determine whether certain groups of employees are affected more than other groups.
    • For example, to determine whether female employees may be affected more than male employees, compare the percentage of female employees scheduled for layoff/RIF to the percentage of female employees in your workforce.
  • If certain groups of employees are affected more than other groups, determine if you can adjust your layoff/RIF selection criteria to limit the impact on those groups, while still meeting your business’s needs.
    • For example, you decide to lay off the most recently hired employees due to budget constraints. Female employees account for 30% of your workforce and 85% of the employees scheduled for layoff. Determine whether you can adjust your layoff criteria in a way that allows you to meet your financial goals while also reducing the impact on female employees. For example, you might determine whether alternative layoff criteria, such as employees’ profitability, productivity or expertise, would enable you to reach the desired financial outcome and result in the layoff of fewer female employees.

This process can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

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Laid off? These are the legal rights that can protect you

Get some answers to your questions about employment law, wrongful termination, severance, and more.

Source: Monster

Dawn Papandrea, Monster contributorLaid off? These are the legal rights that can protect you

Understand what your legal rights are when you’ve been laid off.

In most cases when people are laid off, they are so shocked or emotional about the experience that they aren’t sure what to do, what their rights are, or if they might even have a legal basis to sue. As a result, they end up walking away, no questions asked—sometimes with severance pay, sometimes with nothing at all.

If you’ve been laid off, step one is to breathe. You have every right to feel stunned.

“Most employees start jobs and no one ever thinks about what’s going to happen in the event of termination,” says Christopher Davis, managing partner of Law Office of Christopher Q. Davis, based in New York.

So would you know what to do if your boss called you in to have the layoff talk tomorrow? Here’s what employment law experts say you should know.

What laws protect you during a layoff?

The default in virtually all employment situations is “at will” employment, says Marc Siegel, founder and managing partner of Chicago-based Siegel & Dolan, mediator, and arbitrator. “That means an employer can terminate you for any reason, or no reason at all, as long as it’s not discriminatory.”

If you’re in a protected class based on your age, sex, national origin, religion, or race, or if you have a disability, and you can prove that you were laid off because of it, then you might have a case.

Without getting too deep into legal jargon, here’s a quick look at some of the federal discrimination laws that cover workers.

If you’re over 40: The Age Discrimination in Employment Act (ADEA) of 1967 protects workers 40 and older. In addition, if you’re in that age category and you’re part of a group layoff, you’re also protected by the Older Workers Benefit Protection Act. This gives you 21 days to consider any severance offer, and another seven days to revoke your agreement.

If you’re part of a minority group: Title VII of the Civil Rights Act of 1964 prohibits companies from making employment decisions based on race/color, religion, sex, pregnancy or national origin.

If you have a disability: The Americans with Disability Act (ADA) of 1990 prohibits employment discrimination against those with disabilities.

Just suspecting your affiliation with one of these groups prompted your layoff isn’t enough to bring a claim, says Davis. “You have to prove ‘disparate impact discrimination,’ which involves some quick math. Has the company put a larger number of members of a protected category into the group of people being terminated?” says Davis.  

Other potentially illegal reasons for a layoff include:

If the employer violates public policy: For example, if an employee files a workman’s compensation claim or reports an illegal or unethical behavior, and then a couple of months later is terminated, that worker might be able to prove that the layoff was done in retaliation, says Siegel.

Read up on federal whistleblower laws, as well as those in your state, if you find yourself in this situation, says Davis.

If you have to take care of a family member who is ill: The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12 work weeks unpaid (26 if the care is for a service member), job-protected leave for specified family and medical reasons with continuation of group health insurance coverage.

If your employer is large: The Worker Adjustment and Retraining Notification (WARN) Act sets rules for notifying workers about large layoffs and plant closures. You must receive a written notice 60 days before the date of a mass layoff. If not, you may be able to seek damages for back pay and benefits for up to 60 days. In some states like New York, employers have to give 90 days notice.

If you think you were laid off because of any of the above reasons, consult with a local attorney to help you decide if legal action is warranted. You may also contact the Equal Opportunity Employment Commission (EEOC) to file a complaint.

What can you expect in severance?

Questions of legality aside, you might be wondering if you’re entitled to severance, and if it’s worth negotiating for a better package. First off, know that an employer is not obligated to give severance at all. “Some companies offer severance as a matter of company policy,” says Davis, “but it is discretionary.”

In larger companies, severance plans may be based on a set, standard formula, says Siegel. “Generally, you’ll see offers of one to four weeks of pay per year of service, and it’s capped at a certain number of weeks,” he adds.

The other aspect of the severance besides what you’ll be paid is what rights you’re giving up. “If you’re getting a severance, it could be that the company is trying to discourage you from consulting with a lawyer,” says Davis. Once you sign the agreement, you give up your right to sue. “That’s valuable to a company because they don’t want to have to pay lawyers or pay settlements or judgments.”

Also, be very careful about covenants that follow you, says Siegel. “If there are any post-employment restrictions about soliciting customers or working for competitors, sometimes the amounts they’re paying you might not be worth it,” he says.

Similar to a salary negotiation, you don’t necessarily have to take the first offer when you’re handed a severance. “There could be room to negotiate your severance. Every agreement isn’t just a goodwill gesture,” says Davis. “Companies do pay out more if there are legitimate legal claims, so always run it by a lawyer.”

In fact, coming away with a better severance is often a person’s best recourse rather than suing, since doing the latter can take years and require a lot of legal fees.

Under what circumstances should you sue? 

If you think you have a good case, you could go ahead and sue your employer, but bear in mind that it’s an arduous process, says Siegel. Ask yourself these questions:

What type of claim do I have, and is it worth fighting?

Of all the potential claims, Siegel finds that Family Medical Leave cases tend to be easiest to win, assuming you have good evidence. “Everyone knows someone who’s been sick, so juries are more sympathetic,” he says. In addition, the standard of proof in such cases is more lenient than in other cases.

Take age discrimination cases, for instance. Those require the higher “but for” standard of proof, says Siegel. In other words, you have to prove that “but for” your age, you would not have been terminated. Also, in age cases, even if you do win, don’t expect large payouts. The ADEA doesn’t allow for emotional distress damages or punitive damages, says Siegel.

With racial and sexual discrimination cases, the burden of proof is slightly less stringent—you just have to show race/sex was one factor in the discharge, says Siegel. The challenge is trying to get a unanimous jury to agree. If you can, though, you may win compensatory and punitive damages (which are allowed), says Siegel, especially in states like California where damages are uncapped.

How big of a layoff is it?

The more people that are being let go, the harder it’s going to be hard to show you were being targeted unless you have some pretty good evidence,” says Siegel. Unfortunately, he adds, sometimes companies use a mass layoff to let a ‘red flag’ person go—whether it’s a 65-year-old, a member of a minority group who is likely to claim discrimination, or a person who filed a sexual harassment complaint. “When they are let go with everyone else, it’s much harder to prove discrimination,” says Siegel.

Where do you live?

Depending on your state’s laws, you might have an easier time of winning a case. Siegel says generally speaking, states such as Illinois, New York, and California have stronger employee protections. Read up on your state’s labor laws via the Department of Labor’s website.

Ultimately, consulting with an attorney can help you determine whether your layoff appears to be legal or illegal, but only you can determine whether the cost of going after your former employer is worth the time and effort.

Now that you have a better understanding of your rights, should the day come when you’re laid off, you won’t be so caught off guard and will be in a better position to negotiate. If you think you might have a legal claim, be sure to work with an employment lawyer to help you walk away with a better severance or, if warranted, pursue a lawsuit.

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When You Can Sue an Employer for Wrongful Termination

Disappointed Businesswoman Standing With Cardboard Box in Office
•••

BY JEN HUBLEY LUCKWALDT 

April 24, 2019

If you’ve recently been terminated for cause, you may be wondering whether your employer was within their rights to fire you—or whether your dismissal constitutes wrongful termination. And, if it turns out you were fired illegally, your next question will probably be whether you can—and should—sue.

What Doesn’t Count as Wrongful Termination

The majority of workers in the United States are employed at will, which means that their employers can fire them for any reason, or no reason at all, provided that the reason isn’t discriminatory. (More on that in a minute.)

  • This means that it’s usually legal for your employer to terminate your employment unexpectedly, without advanced warning, and to decline to provide a reason for your termination.

In fact, many employers choose to offer as little notice or explanation as possible, even going so far as to characterize the termination as a layoff, rather than take the risk of violating the law by providing a reason that later turns out to be discriminatory.

Bottom line: Unless you have an employment contract or collective bargaining agreement that mandates a certain amount of notice, it’s legal for your employer to fire you without notice.

They are also not obligated to provide you with an opportunity to correct issues pertaining to your work performance before terminating your employment. (Although again, as a matter of company policy, many employers will create a standard process for termination that includes a performance improvement plan, both to minimize the chances of legal hassles and to maintain good morale among the staff.)

Examples of Wrongful Termination

Per federal law, it’s illegal for employers to discriminate in hiring, firing or promotion on the basis of:

  • Sex or Gender
  • Race or Color
  • Religion
  • National Origin
  • Disability
  • Pregnancy
  • Age (over 40, per federal law, although some states offer protections for workers younger than age 40)
  • Genetic Information

Workers can also sue or file a complaint with the Equal Employment Opportunity Commission if they are sexually harassed at work, fired for being a whistleblower, subject to constructive discharge (aka forced to resign), or made to endure a hostile work environment.

Questions to Ask Yourself Before Suing

1. Do you feel that the termination was based on discrimination? If so, you will likely have to file a charge of discrimination with the EEOC before filing a job discrimination lawsuit against your former employer. (The exception: violations of the Equal Pay Act do not require you to file a charge, provided that you file your suit within two years of the pay discrimination.) Keep in mind that you have a limited amount of time in which to file—generally, 180 days from the time of the incident, although local laws may extend this deadline to 300 days. For more information, see the EEOC’s page on filing a discrimination charge.

2. What’s your goal in suing (and is it realistic?) Do you want money, a change in behavior, or just the satisfaction of knowing that they didn’t get away with it, scot-free? It’s important to know what your goals are before you get embroiled in a long legal process. Consult with an employment attorney early on, to figure out whether your goals are reasonable. 

3. Are you willing to invest time and money in pursuing your case? Unless you’re able to find an employment attorney to take your case pro bono, suing is expensive. It can cost thousands of dollars to take a suit to trial. To make matters worse, employers typically have in-house lawyers at the ready to wear you down with delays and postponements. On the other hand, many lawful termination lawsuits never reach trial, often because employers choose to settle. Think about how much time, money, and effort you can afford to put into the process before you proceed.

How to Move on After Being Fired

Regardless of whether you choose to sue for wrongful termination, you’ll need a plan for moving forward after being fired. That means knowing your rights as a (former) employee, including when and where to pick up your final paycheck, whether you’re entitled to pay for accrued vacation and sick time, what will happen with your health care benefits, retirement plan, any stock options and more.

HR will be able to assist you with these questions, as well as inform you about how the company plans to characterize the dismissal. It’s in your best interests to find out now before future employers call asking to verify your employment history.

Don’t assume that they’ll say the worst: many organizations have a policy of confirming no more than job title and dates of employment. You may even be entitled to unemployment benefits, depending. You won’t know until you ask.

Looking toward the future, practice answering interview questions about the termination, and gather references from contacts to bolster your candidacy for jobs. Don’t let this reversal stand in the way of your success. Many famous and influential people were fired before making their mark on the world, including Steve Jobs, Oprah Winfrey, and Thomas Edison. 

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Do Employees Have Any Protections From Being Laid Off?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

While employers are generally free to conduct layoffs at any time, even at-will employees have some protections.

In the United States, employers have a great deal of leeway in conducting layoffs. This doesn’t mean every layoff is legal, however. Employers may not discriminate based on certain protected characteristics in deciding who loses their jobs, for example. Employers also may not lay off an employee if it would violate an employment contract. And, larger employers may have to give employees notice of a layoff in advance.

Employers Must Not Discriminate in Layoffs

Most employees in this country work at will, which means they can quit or be fired at any time, with or without cause, as long as the employer doesn’t fire them for an illegal reason. One illegal reason is discrimination based on a characteristic protected under federal or state law, such as race, national origin, or gender. Employers that use the layoff process to discriminate against employees based on a protected trait can be sued.

For example, if an employer uses a layoff as a pretext to get rid of most of its female employees, that would be illegal. Whether the job action is called a termination or a layoff, it is illegal to make job decisions based on protected characteristics.

Employment Contracts May Offer Protections

Some employees have written employment agreements that guarantee continued employment for a period of time, such as one year. If you have a contract like this and you are laid off for reasons that aren’t stated in the contract, you might have a legal claim for breach of contract.

Even if you don’t have an individual employment contract, you might have other contractual protection against layoffs. If you are a union member, your collective bargaining agreement might spell out the circumstances in which you can be laid off, or the process that your employer must follow in deciding which employees lose their jobs. Talk to your union representative to find out.

In addition to the right to notice under the WARN Act and similar state laws, you have the right to any severance promised in your employer’s policies, your employee handbook, or your employment contract.

Federal Law Requires Advance Notice of Mass Layoffs

The federal Worker Adjustment and Retraining Notification (WARN) Act requires employers with 100 or more employees to give at least 60 days’ notice before conducting a mass layoff: a reduction in force in which at least 500 employees at a single job site will lose their jobs, or in which 50 to 499 employees lose their jobs if they make up at least one-third of the employer’s work force.

Employers must also give 60 days’ notice of plant closings: the shutdown of a single employment site, operating unit, or facility, in which at least 50 employees lose their jobs.

The WARN Act requires only that employers give notice; it doesn’t protect employees from layoffs, nor does it require employers to pay any severance. Some states have similar laws requiring notice, and a few require employers to pay a small amount of severance.

Your Rights in a Layoff

Even if you don’t have the right to keep your job, you might still have certain rights in a layoff. In addition to the right to notice under the WARN Act and similar state laws, you have the right to any severance promised in your employer’s policies, your employee handbook, or your employment contract. For example, if your employee handbook states that employees who are terminated will receive severance of one week’s pay for every year of employment, you are entitled to that severance pay when you are laid off.

In addition, you have the right to receive your final paycheck relatively quickly after you lose your job. Some states, such as California, require employers to provide the final paycheck immediately upon termination. Other states give employers more time: For example, Vermont requires payment within 72 hours, while New York requires payment by the next regularly scheduled payday.

You may also have the right to continue your group health insurance plan under the federal COBRA law.

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“Can I Be Fired for Using Medical Marijuana?”

By Bryan A. Chapman, Esquire

Medical marijuana use is legal in approximately 33 states and the District of Columbia. In the District of Columbia, a licensed physician can recommend medical marijuana for conditions, such as: HIV, AIDS, cancer, glaucoma, conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis; patients undergoing chemotherapy or radiotherapy, using azidothymidine or protease inhibitors, decompensated cirrhosis, Lou Gehrig’s disease, Cachexia or wasting syndrome, Alzheimer’s Disease, and seizure disorders.

ISSUE:

In a state or locality where medical marijuana use is legal, can a registered medical marijuana user, with a recommendation from a licensed physician, be fired from their job for using medical marijuana during off hours to treat a debilitating medical condition? The answer is complicated.

 CURRENT STATUS:

State and local laws concerning the protection of registered medical marijuana users are quickly evolving across the country.  The trend is to give registered medical marijuana users greater protection against being terminated by their employers.  A registered medical marijuana user who is using medical marijuana to treat a debilitating medical condition may be entitled to a reasonable accommodation under some state and local laws.

 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 but it does not protect District of Columbia private sector employees.  Nationally, state and local 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.  However, the current trend, in the law, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in localities and states 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.  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.”) Furthermore, the Americans with Disability Act (ADA) does not protect medical marijuana users from termination by their employers either.

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 the District of Columbia court, D.C. Superior Court, would determine that private sector District of Columbia employees, who are medical marijuana users, have similar protection. Filing a disability claim under the D.C. Human Rights Act may be the test.

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I will fight for you.

By Bryan A. Chapman, Esquire

I am a civil rights lawyer whose focus is employment discrimination. I have been fighting for workers against powerful employers since 1993. I practice before the EEOC and in the federal courts. I am a graduate of Dartmouth College and the University of Wisconsin-Madison law school.

If you are experiencing workplace discrimination, fighting back generally begins with filing a discrimination complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC complaint process does not require the presence of a lawyer. Today, much of the EEOC complaint process is conducted on-line or by telephone.

However, if you do not have an experienced lawyer advising you, the EEOC complaint process can be brutal. You will be going up against your employer’s highly experienced lawyers. Workplace anti-discrimination laws give employers a huge advantage over workers. The outcome is predictable, employers win 98% of the time at the EEOC.

For Help Call (202) 508-1499

Filing a discrimination complaint with the EEOC is just one of several options. In fact, filing a discrimination complaint with the EEOC may not be your best option. There are federal laws, such as Title VI, Title IX, 1983, and 1981, that do not require that you file a complaint with EEOC and that allow unlimited damages. There are also state and local agencies that offer advantages. I can provide you with effective advice no matter where you live.

Ideally, you should consult with me prior to filing a complaint with EEOC or its partner agencies. I will help you settle your case for as much as possible, quickly and at minimum expense. For instance, EEOC has a mediation program that facilitates settlements.

I will do the following: 1) analyse the facts of your case, 2) apply the relevant laws, 3) discuss your options with you, and 4) guide you through the complaint process. Again, I can provide you with effective advice no matter where you live.

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African Americans Face Systematic Obstacles to Getting Good Jobs

Source: Center for American Progress

By Christian E. Weller 

December 5, 2019

A pedestrian passes in front of a shuttered house in Omaha, Nebraska on a cloudy evening on Thursday, May 3, 2018.

Author’s note: CAP uses “Black” and “African American” interchangeably throughout many of our products. We chose to capitalize “Black” in order to reflect that we are discussing a group of people and to be consistent with the capitalization of “African American.” 

The U.S. labor market has now seen a record 109 months of uninterrupted job growth, with the overall unemployment rate falling to its lowest level in 50 years. (see Figure 1) However, African American workers still face more hurdles to get a job, never mind a good one, than their white counterparts. They continue to face systematically higher unemployment rates, fewer job opportunities, lower pay, poorer benefits, and greater job instability. These persistent differences reflect systematic barriers to quality jobs, such as outright discrimination against African American workers,1 as well as occupational segregation—whereby African American workers often end up in lower-paid jobs than whites2—and segmented labor markets in which Black workers are less likely than white workers to get hired into stable, well-paying jobs.3 Despite African American workers having increased access to jobs and actually getting more jobs, labor market outcomes—including higher unemployment and fewer good jobs—continue to be worse for African American workers and their families.

These differences are not new, and the longest labor market expansion on record has not eliminated them. African Americans have always been more vulnerable in the labor market. They regularly experience higher unemployment rates and work in worse jobs, which feature lower pay and fewer benefits, than whites. Moreover, they tend to work in jobs that are less stable than those held by white workers. For example, African American workers often see their unemployment rates go up sooner than white workers when the economy sours, and their unemployment rates also take longer to decline when the economy improves than is the case for whites—a phenomenon often described as “last hired, first fired.” Moreover, unemployed Black workers look longer to find and secure a new job than do white workers.

The labor market experience for African Americans has historically been worse than that for whites, and this continues today. There are several factors that have contributed and continue to contribute to this. These include repeated violent oppression of African Americans such as the riots that destroyed Black business owners’ wealth on the Black Wall Street in Tulsa, Oklahoma in 1921, codified segregation, legal racial terrorism during the almost centurylong period from Reconstruction to the civil rights era, systematic exclusions of African Americans from better-paying jobs, and continued occupational segregation.4 Despite notable improvement, today’s Black workers still have a harder time than whites securing good employment. For Black women, the intersection of race and gender bias has had a combined effect on their labor market experiences, too often devaluing their work and confining their opportunities.

To close these persistent labor market gaps, African American families need more wealth to begin with. Wealth makes it easier for families to invest in their own futures. For example, wealth can be used to support both children’s and parents’ education, to start a business, to buy a house in a neighborhood with access to good jobs, and to move to new places when better opportunities arise. Each of these benefits gives families access to more and better jobs. People with a college degree typically have lower unemployment rates and greater access to well-paying, stable jobs with decent benefits; starting a business gives people more control over their own lives and thus the potential to avoid the uncertainty that can come from working for somebody else in a low-paying job with irregular hours; and buying a house closer to where good jobs are located makes it easier to switch jobs when one does not pan out as expected. Similarly, wealth allows families to move to a new location when jobs in one area decline or disappear altogether. Having less wealth makes all these benefits much harder to achieve for African Americans.

This issue brief examines African Americans’ and white workers’ labor market experiences in the current labor market expansion. The data summary looks first at differences in unemployment rates, followed by indicators of employment opportunities. The discussion then turns to measures of job quality, starting with wages, followed by benefits, and concluding with job stability. Regardless of the observed labor market outcome, African Americans always fare worse than whites, with Black women often experiencing the harshest impacts. Worse labor market outcomes—higher unemployment, fewer benefits, and less job stability—contribute in part to the growing racial wealth gap, leaving African Americans in a more precarious financial situation.

Black workers have higher unemployment rates than whites

African American workers regularly face higher unemployment rates than whites. There are several explanations for this. Blacks often face outright discrimination in the labor market.5 They also are less likely to attend and graduate from college, which stems from the fact that African Americans face greater financial barriers to getting a college education,6 ending up with more debt than white graduates and paying more for their loans.7 Yet even among college graduates, African Americans often face greater job instability and higher unemployment rates, as the data below show.

For a decade now, the unemployment rate has fallen, improving the labor market outlook for many groups along the way. The U.S. unemployment rate for all workers who are 16 years old and older was down to 3.5 percent in September 2019 from its peak of 10 percent in October 2019, reaching its lowest point in 50 years. (see Figure 1) Amid the improving labor market, the African American unemployment rate fell to a historic low of 5.5 percent, and the rate for whites reached a 50-year low of 3.2 percent at the same time. More importantly, the unemployment rate for prime-age workers—those who are ages 25 to 54—fell to an average of 5.2 percent for Black workers and an average of 2.8 percent for whites for the period from November 2018 and October 2019.8 This was the lowest unemployment rate on record for Black prime-age workers dating back to 1973 and the lowest for white prime-age workers since 2000. (see Figure 2)

The trend toward ever-lower unemployment rates should not obscure the fact that African Americans systematically suffer higher unemployment rates than whites, even in a good labor market. The unemployment rate for Black workers remains higher than that for white workers even when looking at subpopulations. The data further show that African Americans typically face higher unemployment than whites regardless of age, gender, education, and veteran status. (see Figure 3)

Regardless of educational attainment by Black workers, they typically have a higher rate of unemployment than their white college-educated counterparts. Among college graduates, for example, the Black unemployment rate averaged 2.8 percent from November 2018 to October 2019, 40 percent higher than the 2 percent rate for white college graduates in the same period. (see Figure 3) While college attainment helps all workers get more access to better-paying, stable jobs with better benefits, the advantages are not evenly distributed. Black workers, no matter their level of education, still face impediments in the labor market—employment discrimination, occupational segregation, and unequal pay.

Black women are caught between bad jobs and widespread financial burdens

Black women face unique burdens in the labor market. They are more likely to work than white women: 84.4 percent of Black mothers are breadwinners, which represents a larger share than for any other racial or ethnic group.9 Black women also often shoulder disproportionate financial burdens due to caregiving responsibilities for children, grandchildren, and aging parents.10 Moreover, Black women have a much harder time finding a job than white women and white men. The employed share of Black women was 57.2 percent in September 2019, slightly higher than the 55.2 percent of white women with a job. (see Figure 3) Yet their unemployment rate was 5.1 percent in September 2019, much higher than the 2.7 percent of white women who were out of work and looking for a job during that same period.

African American women also work in lower-paying jobs than Black men or white women, which translates to a particularly steep pay gap for Black women. Among those who worked full time all year in 2018, Black women earned 61.9 cents for every dollar that white men earned. In comparison, Black men earned 70.2 cents for every dollar earned by white men, and white women earned 78.6 cents.11 African American women are also more likely than white women to juggle caregiving responsibilities for family members such as children and grandchildren.12 The lack of access to jobs in general, and to good jobs in particular, further exacerbates the financial challenges of these responsibilities. In the same vein, getting more education shrinks the wage gap but doesn’t close it, indicating that Black women face systematic obstacles in getting good jobs.13 Therefore, it is important to note that even obtaining a job, and sometimes a good job, is still not enough for Black women because of systemic barriers—sometimes rooted in race and gender bias—that drive how the U.S. economy values different types of work and the policies available to support women’s caregiving responsibilities.

Black workers have less access to jobs than whites

Importantly, the employed share of both prime-age Black and white workers was still below the peaks recorded in the late 1990s, suggesting that the labor market is not as strong as the unemployment rate shows. (see Figure 4) Moreover, there is a persistent racial gap. The employed share of prime-age Black workers stood at 75.7 percent from November 2018 to October 2019, while it averaged 80.8 percent for white workers in this age group. (see Figure 4) Even after a decade of labor market gains, Black workers face more impediments to finding work than is the case for white workers. Fewer job opportunities make it harder for people to save for their futures.

Black workers have fewer well-paying, stable jobs with decent benefits than white workers

The hurdles that African Americans face in the labor market from discrimination, pay inequality, and occupational steering are also apparent in indicators of job quality and not just in measures of job availability. Black workers, for example, typically get paid a great deal less than white workers. The typical median weekly earnings for Black full-time employees was $727 from July 2019 to September 2019, compared with $943 for whites. (see Figure 5) Comparing wages for men and women broken down by race and age again shows that these wage differences persist among full-time workers, indicating that massive gaps in economic security persist even when the labor market is strong. Lower wages for Black workers then translate into lower savings as families have less money left over after paying their bills.

African Americans also receive fewer employer-provided benefits than white workers. Only a little more than half of African Americans—55.4 percent—had private health insurance in 2018, compared with 74.8 percent of whites.14 Craig Copeland, a researcher at the Employee Benefits Research Institute, estimates that among full-time, year-round workers, African American workers were 14 percent less likely than white workers to have any type of retirement plan through their employer.15 Fewer workplace benefits make it harder for African Americans to save, since they face higher costs and less help in preparing for retirement than their white counterparts.

Not only do African Americans work for less pay with fewer benefits, they also face much greater job instability than whites. African Americans often work in occupations and industries that are economically less stable, such as retail services and parts of the health care sector including home health aides and nursing home workers. Moreover, African Americans tend to feel the fallout from a recession more intensely than do whites, as discussed below, and they then tend to be out of a job longer than other unemployed workers. (see Figure 6)

African Americans’ employment fluctuates more than it does for whites. The employed share of prime-age African American workers fell by 8.3 percentage points from 75 percent just before the Great Recession started in September 2007 to a low of 66.7 percent in October 2011. (see Figure 5) In comparison, the respective share of white workers dropped by only 4.5 percentage points, from 81 percent in November 2007 to 76.5 percent in July 2010.

Moreover, jobs for African Americans tend to disappear sooner when the economy sours and come back later when the economy improves—a phenomenon often described as “last hired, first fired.” The decline in prime-age employment rates associated with the Great Recession started two months sooner for African Americans than whites and lasted 15 months longer than it did for white workers. (see Figure 5)

Unemployed African American workers look longer for a new job than whites. From September 2018 to September 2019, the average length of unemployment for unemployed African American workers was 25.5 weeks, compared with only 20.8 weeks for unemployed white workers. (see Figure 6)

The racial wealth gap continues to grow

African American families need wealth to increase access to good job opportunities. For example, wealth increases the likelihood of people being able to support education for themselves and their children, as well as being able to move to areas with more and better jobs. Yet African American families own much less wealth than whites, and the gap has only widened in recent years. On average, Black families now own about one-fifth of the total wealth, including the imputed wealth of defined benefit pensions, owned by whites. Just before the Great Recession, this gap had shrunk to one-fourth. (see Figure 7). However, African American families lost more wealth during and after the financial and economic crisis of 2007 to 2009. (see Figure 7) This resulted in a widening racial wealth gap over the past decade.

Many factors will have to come together to overcome systematic obstacles that hinder African Americans’ ability to build wealth. A prolonged labor market expansion is a good start, but it is not enough, as the most recent data clearly show. More hiring has lowered the unemployment rate and created more employment opportunities, but African Americans are still more likely to be unemployed, have fewer job opportunities, get paid less, have fewer employer-sponsored benefits, and work in less stable jobs. All of these elements further widen the already large racial wealth gap.16

Conclusion

The U.S. labor market has been expanding for almost a decade, with workers of all races benefiting from this expansion. However, the progress has not erased systematic racial differences in labor market outcomes. African Americans still face persistently higher unemployment and have less access to good jobs than whites. These systematically different experiences in the labor market exacerbate the need for more wealth for African Americans but also make it more difficult to build that wealth in the first place. Making sure that Black workers have the same access to good jobs as white workers does not only require labor market policies but also new and innovative approaches to shrinking the racial wealth gap.17

Christian E. Weller is a senior fellow at the Center for American Progress and a professor of public policy at the McCormack Graduate School of Policy and Global Studies at the University of Massachusetts, Boston.

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What Does At-Will Employment Really Mean?

At-will employment is something most U.S.-based employers are familiar with. But what does this term really mean? Can an employer actually terminate an employee without any reason at all? What are the exceptions?

Defining At-Will Employment

First, let’s start with the definition of “at-will employment.” It does in fact mean that an employer has the right to terminate an employee at any time and for any (or no) reason. It also means that the employee has the right to terminate his or her own employment at any time and for any (or no) reason. There are no predefined legal requirements in terms of notice periods either. This means the termination can be done without any prior notice.

If an employer/employee who is in an at-will employment situation decides to terminate the employment relationship, the other party has no recourse. In the United States, in almost every state (Montana is the exception), an employee is considered to be an at-will employee unless there is proof otherwise, such as an employment contract.

Exceptions to the At-Will Employment Doctrine

Employers need to understand that there are caveats to the above definition. This is because other laws may be broken if a termination is made for an otherwise illegal reason, such as discrimination. Here are some of the exceptions to the at-will employment doctrine:

      • An employee cannot be fired for a discriminatory reason. Title VII of the Civil Rights Act, for example, protects employees from discrimination based on race, national origin, religion, color, or sex. For another example, the Americans with Disabilities Act makes it illegal to discriminate against someone because of a disability.
      • An employee cannot be fired out of retaliation for performing a legally protected action. For example, an employer cannot fire an employee for filing a workers’ compensation claim. Other retaliation-protected actions include:
        • Filing a discrimination or harassment suit
        • Being a whistleblower regarding illegal or unsafe practices
        • Refusing to perform illegal activities
        • Participating in a workplace investigation
        • Requesting reasonable accommodation for a disability
        • Taking legally protected leave from work, such as FMLA  leave
        • Discussing (or complaining about) the working environment or wage and overtime practices

        An employee with a contract that outlines the terms of employment cannot be fired outside of those terms. In other words, contracts supersede at-will employment assumptions. Some states also provide protections for implied (unwritten) contracts. Check your local laws.

    • An employer who provides some protections in employment policies, such as firing only for just cause, must abide by those protections. In this case, the employer has opted to forgo the at-will option by providing other protections.

As we’ve shown here, terminating an at-will employee is not always as straightforward as it may seem. Employers should also remember that some states have more stringent requirements. Be sure to check state and local laws before making any termination decision.

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EEOC IS A STRAW MAN

By Bryan A. Chapman, Esquire

Millions of American workers rely on the Equal Employment Opportunity Commission (EEOC) to protect them against workplace discrimination.  Unfortunately, that reliance is misguided.

Less than 5 percent of workers who filed job discrimination complaints against their employer with EEOC receive a favorable decision from the agency.  With the number of discrimination complaints growing each year, EEOC does not have the funding to conduct investigations.  In order to reduce its backlog, EEOC dismisses a growing number of complaints without even investigating them.  When EEOC dismisses a complaint, it sends the employee a “right-to-sue” letter which instructs them to file a discrimination lawsuit in federal court within 90 days.  For most people, a “right-to-sue” letter marks the end of the road.

The March on Washington for Jobs and Freedom occurred in August 1963, it was the highlight of the 1960’s Civil Rights Movement.  Dr. Martin Luther King gave his “I Have A Dream” speech on the steps of the Lincoln Memorial to a crowd of over 250,000 people.

That year, President John F. Kennedy meet with civil rights leaders and introduced a bill in Congress to address discrimination against black people.  In 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964 which made job discrimination illegal based on race, sex, national origin, and religion.   The Civil Rights Act marked the official end of the Jim Crow era that terrorized black people for 100 years.  The Act created the Equal Employment Opportunity Commission (EEOC) whose mandate is to protect workers from job discrimination.

Almost sixty years later, the EEOC is out of favor in Congress; ending job discrimination is not a priority.  For all practical purposes, due to a lack of funding from Congress, the EEOC can no longer fulfill its stated purpose of protecting workers from job discrimination.

Today, black people are not the only victims of job discrimination.  Because of the #metoo era, women have filed a flood of sexual harassment complaints with EEOC.  There are also more age and disability discrimination complaints being filed with the agency.

Since EEOC lacks the funding to enforcing workplace discrimination laws, employers know that there is little or no penalty for allowing workplace discrimination to continue.  It is no wonder that the vast majority of workers who are experiencing discrimination in the workplace never file a complaint with EEOC.  Most of these workers fear retaliation by their employers.

Nonetheless, filing a complaint with EEOC offers important benefits: 1) filing a complaint with EEOC is a prerequisite to filing a discrimination lawsuit in federal court; and, 2) EEOC offers mediation which can lead to a settlement.  While most workers do not have the means or the desire to file a discrimination lawsuit in federal court, many workers expect to resolve their complaint through mediation.

In conclusion, EEOC’s mediation service can be very beneficial to workers.  However, no worker should expect EEOC to advocate for them.  To the contrary, many feel that EEOC is working to the benefit of employers.  Anyone who is contemplating filing a complaint with EEOC should seek advice from an experienced civil rights attorney.

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Do I Have A Case?

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.

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