EEOC Complaints: Everything You Need to Know

Source: UpCounsel

A company with more than 14 employees are subject to the EEOC stepping in. 

What Are EEOC Complaints?

EEOC complaints are handled by the Equal Employment Opportunity Commission (EEOC), the body responsible for investigating discrimination complaints based on religion, race, national origin, color, age, sex, and disability. A company with more than 14 employees is subject to the EEOC stepping in. Every employee has the right to file an EEOC complaint, not only those who feel like they have been discriminated against.

Inspection Procedure

The employer supplies documents and other information relevant to the case when a worker files a complaint. These items include copies of HR policies and any personnel files after the EEOC has followed up with a formal request. Although disruptive to the company and overall operations, the EEOC staff may also visit the office.

During the work day, the staff may ask the employer for employee interviews. The EEOC can still contact employees outside of work without the employer’s permission. Even if an EEOC complaint has numerous advantages, the employer is going to have to invest time, effort, and sometimes money to deal with it. The EEOC notifies the employer and then asks for a “statement of position,” granting an opportunity to hear the story from this perspective.

Typical EEOC Complaint Investigation Proceedings

The activities carried out are just for finding facts; information found by the EEOC is used to figure out if the complaint requires further action. From there, the process will turn into a formal investigation, which takes up more money and time. A typical EEOC investigation period lasts six months, but each case varies.

During this time, the employer may be prohibited from destroying documents of any kind without prior permission. Employers should hire a lawyer for counsel. 

Robin Shea, who is a partner in a law firm, says employers can influence an investigation, especially when not working with a lawyer. By unintentionally admitting a violation occurred or providing too many details, employers moving forward without a lawyer can turn even the most trivial complaint into a full-blown investigation.

How Does an EEOC Complaint Hurt an Employer?

Once the Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a long period of legal issues.

During the ensuing months, time-consuming official requests are made to acquire more information in addition to or in the form of:

  • Intrusive investigations
  • Large legal bills
  • Negative publicity
  • Expensive damages (if the complaint is upheld)

EEOC Complaints and Costs of Litigation

Employers can avoid an EEOC investigation if they agree to attempt to mediate or settle the complaint. This will likely result in the employer having to change its procedures and policies. They may also be responsible for compensating anyone who complained. However, employers don’t have to admit any liability or guilt, and agreements remain private.

The EEOC may sue the employer if said employer will not mediate, or if the EEOC determines the case goes beyond what mediation could offer and is far more serious. The employees who filed the complaint can still sue even if the EEOC decides not to. Regardless of who sues, litigation proceedings are a considerable cost for the employer and can produce some bad publicity, as well.

Indemnifications and Penalties

This depends on the nature of the complaint, but may include paying back wages, reinstating their job, or giving them a promotion. In addition, employers will be required to pay the complainants’ court and legal fees. However, things definitely get more expensive if there’s a trial.

Damages will be awarded to any employees who filed complaints by the court. Damages are as follows:

  • 15 to 100 employees: $50,000 per person
  • 101 to 200 employees: $100,000 per person
  • 201 to 300 employees: $200,000 per person
  • More than 300 workers: $300,000 per person

For the Employee: How to File an EEOC Charge of Discrimination

When facing workplace harassment or discrimination, your first step should be complaining internally using the procedures detailed in your employee handbook or other policies outlined in the onboarding process. When your complaints aren’t met or you feel unsatisfied, you may file a discrimination complaint with the EEOC or a similar agency in your state to handle these proceedings.

The EEOC has a very well-defined process for handling complaints compared to most government agencies. It usually operates through a network of offices and places strict deadlines for complaint filing, usually ranging from around 90 days and up to almost a year. Employees are advised to pay close attention to the deadline when deciding to file against something they believe is illegal or discriminatory in the workplace.

If you think your rights have been violated, think about filing discrimination claims with the EEOC. They will reach out to both you and your employer within 10 days. Shortly after, they will begin the investigation of your claim. If they find that your employer violated anti-discrimination laws, the options are a settlement with the employer or taking the case to court.

You may also file a complaint as a U.S. citizen employed by a U.S.-based company that has operations abroad. Simply file your charge(s) with the EEOC district office in the city or state closest to your employer’s U.S.-based headquarters.

What to Do Before Filing Charges

Things you will be asked when filing:

  • Personal information, including name, telephone number, and address
  • The above information of your employer, plus the number of employees in regard to your employer/employment agency or any other alleged entity part of the discrimination
  • A short description of the alleged violation
  • Date(s) of when the discrimination/alleged violation(s) took place

If you are a federal employee, have a look at the agency’s Overview of Federal Sector EEO Complaint Process. Note that the EEOC does not process discrimination charges online. The EEOC’s online assessment tool is designed to assist in determining whether filing charges with the agency is the best course of action.

Where to File

Complaints can be filed at local equal employment opportunity agency offices. These are state and local agencies (not federal) that are official representatives of the EEOC. A state that has its own equal employment opportunity laws will be allowed 300 days after the act of discrimination occurred to file the complaint. A state that does not have its own equal employment opportunity laws only has 180 days to file.

Filing a Title VII Lawsuit

When you file your discrimination claim with the EEOC, be aware that the agency pursues only a small fraction of the charges it receives. If EEOC does not act on your complaint within 180 days, you are responsible for requesting a right-to-sue letter that authorizes you to file a lawsuit in federal court against the offending employer.

Upon receiving the right-to-sue letter, you have only a short period (90 days) to file a lawsuit, so be mindful of the deadlines for the Title VII process. The EEOC’s out-of-pocket expenses are limited by law to $5,000 per lawsuit—thousands of dollars less than it typically costs to take an employment discrimination case to court.

Time Limits for Filing Charges

Employees are advised to contact the EEOC immediately after you believe there is any discrimination on behalf of your employer. You’ll have less than a year (300 days) to file.

Tips for Dealing With the EEOC

Keep these things in mind to help get your claim through the EEOC bureaucracy in the most efficient manner:

  • Be vigilant and check in with the EEOC to learn more and discuss your case.
  • Be assertive and bring any additional EEOC issues to the attention of whoever is helping you with your case.
  • Read—and reread—any fine print to be sure to give a detailed look before signing anything.

Keep options open when filing for an EEOC complaint. Keep in mind that you still have the ability to try to solve the issue(s) at hand on your own or go through the complaint procedure suggested by the company.

Retaliation for Discrimination Complaints

Whether the file is with a state civil rights commission or the Equal Employment Opportunity Commission, many worry that their employer will seek retribution after, since they’re not above discriminating or allowing discrimination. The law prohibits this type of retaliation.

Grounds for discrimination complaints are strong when an employee was fired due to his or her race, or was denied an accommodation for his or her disability. Whether it’s believed you were denied a promotion due to your age, or were harassed because of your religion, you may win or lose your claim.

The EEOC, or other civil rights enforcement agencies, make protecting the process’s integrity a high priority. Any company can by prosecuted for seeking retribution. 

Any person that filed a discrimination complaint should be careful not to alter their behavior. A common fear is that their employer might now be “afraid of them” and can take this as an opportunity to let them go or fire them, for example. In the aftermath of a complaint, both sides will need to monitor behavior more closely and any and all actions will be more carefully documented during this time.

What to Do If Retaliated Against

Should you decide to exercise your rights under the anti-discrimination laws and your employer responds negatively toward you for doing so, you can take action in return. If the complaint was made internally within the company, first talk to the person who took your original complaint or speak directly with the company’s HR department.

When you file your charge of retaliation, you’ll need to review the incident, including when and who the person responsible was. Give as much detail as possible.

What Is Retaliation?

This simply means an employee has been discriminated against because they have filed a complaint.

Employees are protected from retaliation or from participating in an investigation when it comes to harassment or discrimination. For example, an employer may not fire an employee simply because the employee reaches out to an EEOC investigator or supports a colleague’s complaint against discrimination at the company.

EEOC Actions

Once the charge is filed, the EEOC can respond in a number of ways. It will most certainly ask your employer to respond to your allegations and might proceed to investigate your claims or send you and your employer to mediation. Mediation is an amicable step to try to resolve the dispute informally, as is trying to broker a settlement directly with your employer.

If the EEOC doesn’t resolve the problem with one of the above methods, it can choose to file a lawsuit against the employer for you.

Common Reasons for Not Filing Complaints

Here are a few frequently heard explanations:

  • “It takes too much time.” If a case is hard-fought and goes to federal trial, it can take years (even on appeal), though few cases run that course.
  • “I don’t want to be seen as a whiner.” An employee who doesn’t believe in the anti-discrimination laws will often have this perspective.
  • “Even after what I’ve been through, I don’t want to hurt my boss.” Often, employees tend to be scared to hurt their boss and never wants to file a complaint against their supervisors.
  • “I don’t want to be disloyal to my company.” Correcting unfairness ultimately will make an employer more effective by ending a bad corporate practice.
  • “I don’t have, or can’t afford, a lawyer.” Some employees simply might not have the funds to work with a lawyer.

People have been advised to come up and report illegal discrimination. However, some groups appear even more cautious than others, like immigrant groups or Asian Pacific Americans, who file discrimination complaints at a lower rate than other groups.

Schedule a Consultation With a Civil Rights Attorney

It’s difficult to take action for your civil liberties and civil rights violations on your own. When you begin to feel that either of these have been violated, then you should talk to an attorney to get a professional opinion. An experienced civil rights attorney knows the differences between these basic rights and can help you with a possible claim.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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What Actions Can Be Considered Workplace Retaliation?

Woman at desk, head bowed over computer, as she grapples alone with illegal retaliation in her workplace

Retaliation is revenge and can conjure up notions of Liam Neeson going after his daughter’s kidnappers in “Taken.” Workplace retaliation isn’t quite so dramatic. Or at least, it’s hopefully not quite that dramatic.

But workplace retaliation can be devastating, and it can (but doesn’t always) break the law. Understanding the rules around workplace retaliation is critical for Human Resources staff members, managers, and anyone who has a position of influence in the business.

What Does Retaliation Look Like?

Jane comes to HR and says,

John keeps asking me out on dates. I have told him no and asked him to stop.

John is a high performer, so you transfer Jane to another less desirable shift.

This is a classic case of retaliation: Jane complained about sexual harassment, and you punished her by moving her to a different shift. Now, you may say “but her pay remains the same, her title and seniority weren’t affected. This isn’t retaliation. And besides, Jane didn’t even say it was sexual harassment.”

The employee doesn’t have to use the magic words to receive legal protection for their actions. Jane complained about unwanted sexual behavior in her department; therefore it’s a sexual harassment complaint. The transfer retaliates against Jane.

Bob has 40,000 Twitter followers, including several coworkers. He posts a picture of his paystub with the caption, “Can you believe that Acme Inc. pays such terrible wages?”.

One of his coworkers take a screenshot and presents it to you. Bob named the company, and many people have replied and retweeted his tweet. As a result, you call Bob into the office and tell him that he has violated the company’s social media policy, and for doing such, you are suspending him for two weeks without pay.

This is illegal retaliation for concerted activities. According to the National Labor Relations Board:

If employees are fired, suspended, or otherwise penalized for taking part in a protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

In other words, employees are allowed to discuss their working conditions with their coworkers, and talking about pay is covered by that law. It doesn’t matter that many others saw it on Twitter. The National Labor Relations Board still considers his comments concerted action.

Now, of course, there cases where retaliation is much more distinctly visible. Steve complains of racial discrimination. You immediately fire Steve for a poor attitude. But activities and actions like transfers  are a lot more difficult to pin down.

Is Retaliation Always Illegal?

It’s not. Retaliation is only illegal when the action that precedes the retaliation is protected by law. This can vary from state to state. It’s always illegal to retaliate against an employee for actions such as sexual harassment, racial discrimination, and concerted workplace activities. Some states have whistleblower protections that protect employees who bring up any variety of illegal activities, but not all.

If an employee makes a complaint that is unfounded, retaliation can be legal, and it can be illegal. For instance, if Jane complains that John is sexually harassing her, and you investigate and find out that actually John just asked her out one time. Factually, you found that Jane said no and he never bothered her again.

But, you still cannot retaliate against Jane as long as she genuinely believed that John behaved illegally. But, if you investigate and find out that Jane wanted John’s better shift, so she made up her complaint, then you can take action and retaliate.

The critical issue is that an employee must have a sincere belief that what they reported is illegal. Otherwise, retaliation is allowed.

Retaliation Doesn’t Stop Consequences

You may have a situation in which an employee is a poor performer, and just before you were going to discipline or terminate the employee, he files a complaint. That complaint doesn’t negate any other performance or employee actions. However, if you don’t have the documentation before the claim, acting after he files the complaint will look like illegal retaliation.

If you have documentation, you can continue along the disciplinary path, but do consider that the poor performance is a result of the harassment or discrimination, rather than an entirely separate situation.

How Do You Stop Retaliation?

Making a simple policy of “no retaliation” won’t solve all of your problems. (Of course, a policy never solves all problems.) You have to consider each situation carefully and on its own merits. Going back to Jane and John, how do you respond? If you determine John’s behavior wasn’t severe enough for punishment, yet Jane doesn’t wish to work with him anymore, how do you proceed?

If you transferred John to the less desirable shift, you are punishing him for something he didn’t do. Transferring Jane is retaliation as long as she had a sincere belief that John harassed her. Resolving such a situation can take serious negotiation and careful thought.

You may also need to sit down with Jane and explain why John’s behavior was not harassment, and that if she wishes to move to a different shift, you can do that, but otherwise, she still has to work with John. Explain to her that to transfer John when you have concluded that he did no wrong—is the wrong decision for the business.

You need to train your managers not to retaliate, and to report all protected complaints to HR. That will help you ensure that no retaliatory decisions happen and that you investigate all potential allegations.

Remember, if an employee sues you and you win on the facts, you can still lose on reported retaliation if you treated the complainant poorly. That’s why it’s critical to think through your actions before you take them and even consider discussing the right course of action with an employment law attorney.

 

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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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.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Can an Employer Be Sued Due to a Stressful Work Environment?

writer bio picture

Stress, in and of itself, is not a bad thing. Controlled stress pushes us to do our best. In small amounts, it motivates, invigorates and sharpens the senses. In the MSNBC article, “Can Stress Actually be Good for You,” Dr. Lynne Tan of Montefiore Medical Center in New York, defines stress as, “a burst of energy.” On the other hand, an excessive amount of stress is physically and emotionally harmful. It can be illegal too, if it is caused by discriminatory, degrading or harassing actions in the workplace.

Hostile Work Environment

Employers cannot be sued for stress that is a normal part of the work environment. However, stress that is caused by ongoing harassment, unwelcome conduct or discriminatory practices is illegal. Actions that constitute a hostile work environment may be physical or verbal in nature. To meet the definition of hostile work environment, the harassment must be severe and such that it interferes with an employ’s ability to do his job. Hostile work environment allegations are investigated and prosecuted by the U.S. Equal Employment Opportunity Commission.

Discrimination

Name calling, slurs, offensive joke telling, unwanted touching and discriminatory comments contribute to workplace stress and violate numerous federal laws. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on national origin, sex, race, religion or color. The Age Discrimination in Employment Act of 1967 prohibits age-based discrimination and protects employers age 40 and older. The Equal Pay Act of 1963 protects woman and men against unequal pay for substantially the same work. And, the Americans with disabilities act of 1990 prohibit employers from using discriminatory practices against qualified workers with disabilities.

Retaliation

Retaliation occurs when an employer or other employee creates a hostile work environment in order to pay an employee back for engaging in a protected activity. It may involve unjustified demotions, firing or harassing behaviors. Protected activities include filing discrimination charges against the employer, participating in an investigation or lawsuit against the employer, whistleblowing activities and making a complaint about a manager or supervisor to a higher authority in the organization.

Constructive Discharge

Constructive discharge occurs when an employer engages in behaviors designed to make an employee quit. The EEOC defines constructive discharge as behaviors that “make the work environment so intolerable a reasonable person would not be able to stay.” There are many reasons an employer may entice an employee to quit, including retaliation and to avoid vesting in pension or medical benefits.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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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

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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.



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Why Are Employment Discrimination Lawsuits Rising So Rapidly?

4 Reasons Why Employment Discrimination Cases Are on the Rise

Employment discrimination lawsuits are rapidly rising. Here is why.

Employment discrimination isn’t always illegal. In fact, you are free to discriminate against people who come in late, people who are unqualified, and people who insist on wearing socks with sandals. Illegal employment discrimination is limited to just a handful of things.

The Federal Civil Rights Law (known as Title VII) prohibits employment discrimination on the basis of race, color, gender, national origin, and religion. You’ll note that sexual orientation is not explicitly listed.

However, the courts are divided as to whether or not sexual orientation falls under gender discrimination, and some states and cities it clear that discrimination on the basis of sexual orientation is illegal. Regardless, you should consider discrimination on the basis of sexual orientation illegal.

In addition to Title VII discrimination, pregnancy, disability, association with someone who has a disability, and genetic information are all protected under federal law.

 

Employment Discrimination Lawsuits Are Rising Rapidly

The EEOC reported that employment discrimination lawsuits are on the rise and have been for several years. While the figures for 2017 are not yet available, it would be surprising if they dropped off. Here are the figures for 2016:

 
  • Retaliation: 42,018 (45.9 percent of all charges filed)
  • Race: 32,309 (35.3 percent)
  • Disability: 28,073 (30.7 percent)
  • Sex: 26,934 (29.4 percent)
  • Age: 20,857 (22.8 percent)
  • National Origin: 9,840 (10.8 percent)
  • Religion: 3,825 (4.2 percent)
  • Color: 3,102 (3.4 percent)
  • Equal Pay Act: 1,075 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 238 (.3 percent)
 

1. Increased Awareness

If you don’t know something is illegal, you won’t file a legal complaint about it. The original discrimination laws were passed more than 50 years ago, and yet not everyone knows their rights. As more people learn, they can recognize when a boss or coworker behaves illegally.

Additionally, as employers increase training programs designed to prevent discrimination and harassment, people recognize harassment they faced in the past.

 

Increased awareness doesn’t indicate an increase in actual bad behavior. It merely indicates that more people are aware of their rights. Hopefully, as awareness increases, more people will understand their responsibilities as well, and actual cases will decrease over time.

 

2. Increased Coverage

This goes along with increased awareness. As people see reports of discrimination in the news, they realize they are not alone, and there is something they can do about it. In 2017, the “New York Times” had over 1600 articles where the word “discrimination” appears. Not all of these, of course, are employment cases, but it brings the ideas to the forefront. The “Washington Post” had over 2000 articles in the same time period, including the following headlines:

 
 

If you are reading these headlines every day, even if you don’t read the articles, you can infer that discrimination is everywhere, and it brings up questions. For instance, if it’s racial discrimination to have a certain dress code at a restaurant, is it also racial discrimination to have a certain dress code at your office? You may not have considered that as a possibility before.

 

The other thoughts these headlines spark is the idea of a big financial gain. The Missouri prison worker who won $1.5 million is not a usual case. Most discrimination cases don’t result in big payouts, but if you think that you might have a big winner of a case, you may be more willing to file a lawsuit.

 

3. Social Media

In the past, you could complain to a few friends, complain to HR and maybe hire a lawyer, and that was it. Today, if you can get a tweet or a Facebook post to go viral. Everyone can become their own public relations firm today.

 

You can find out about harassment and discrimination cases that happened across the country (or the world) to people you have never met and knew nothing about until a viral post landed in your social media feeds. This can encourage people to feel like they are not alone. It can also put pressure on companies and organizations to change their behavior.

 

4. Employer Panic

Employers are reading the same headlines and attending the same training classes that employees do. The number one reason for a discrimination lawsuit in 2016 was “retaliation.” Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.

 

Employers know that they can face serious consequences for violating discrimination laws. In an attempt to make the problem “go away” they can retaliate against employees by punishing them for complaining.

 

For instance, Karen complains that her boss, Bob, is harassing her, and the company moves her to a new position with less prestige. Or, Javier’s boss tells him to stop speaking Spanish on break. When Javier refuses, his boss gives him a lower performance rating. Heather goes on maternity leave, and when she comes back, she found that her boss gave all of her best clients to other employees.

 

All of these are examples of retaliation, and companies often retaliate in panic or denial. The idea is, that if you can just shut up the complainer, the problem will go away. Sometimes this works, as people would rather find a new job and leave than fight it out with a lousy employer, but if they decide to sue, the employer gets hit with a retaliation charge.

 

Does This Increase in Employment Discrimination Cases Mean You Should Sue?

If you’ve been illegally discriminated against, you certainly have the right to your day in court. You can file a complaint with the EEOC, or you can hire an employment attorney. But, keep in mind that winning an employment discrimination lawsuit is difficult and expensive.

 

Of those cases that make it to court, the employee wins in only 1 percent of the cases. While that sounds dreadful and hopeless, keep in mind that most cases settle out of court. Many are sealed, so you have no idea how much money, if any, the employee received. But, huge sums are not common, and you have to pay your lawyer as well unless the EEOC takes your case.

 

Cases can also take years to work their way through the courts, during which time you are under stress. It’s often logical to just walk away. However, this does not mean you should let harassment and discrimination go.

 

Everyone needs to make his or her own choice. But it does mean that you need to be careful how you act in the workplace. People won’t stand for illegal discriminatory behavior anymore. And that’s a good thing.

 

————————————————

 

Suzanne Lucas is a freelance journalist specializing in Human Resources. Suzanne’s work has been featured on notes publications including Forbes, CBS, Business Insideand Yahoo.

 



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Workers Win Only 1% Of Federal Civil Rights Lawsuits At Trial

A new analysis of employee lawsuits finds a low success rate for discrimination, harassment, or retaliation, and highlights the U.S.’s most-sued employers.

Workers Win Only 1% Of Federal Civil Rights Lawsuits At Trial

Claims of employee mistreatment are center stage, between sexual harassment and discrimination scandals in the TV business and in Silicon Valley, and now the Trump Administration’s retrenchment on LGBT protections in the workplace and banning of transgender people in the military.

But according to a new analysis of employment cases by legal research service Lex Machina, very few employees who file federal job discrimination, harassment, and retaliation claims even make it to court, and only 1% of those claims eventually succeed in court. A majority of cases are settled, employers prevailed on summary judgment roughly 13 percent of the time, and only 192 damage awards out of 72,000 cases included punitive damages.

THE LONG ROAD TO TRIAL

Employees who gather the courage to take action against their employer begin by filing a charge with the U.S. Equal Employment Opportunity Commission, typically within 180 days from the time the discrimination took place. Through a fact-finding process, the EEOC decides whether or not a charge is strong enough to take to trial. An overwhelming number of allegations do get the EEOC’s Notice of Right to Sue, which is a thumbs-up to proceed.

But few of these cases actually become lawsuits. For fiscal year 2016 (Oct. 1, 2015 through Sept. 30, 2016), employees filed 97,443 charges, and the EEOC issued 81,129 Notices to Sue (83.3%), according to records provided to Fast Company. For that same period, meanwhile, Lex Machina counted only 7,239 cases that went onto lawsuits—less than a tenth of the charges EEOC gave a green light to over the same time frame.

Lex Machina also examined data on the lawsuits themselves, and found an even smaller fraction of victories for plaintiffs.

Over an even longer period—from January 2009 through July 2017—Lex Machina found that of 54,810 cases that were filed and closed, employees bringing the suits won just 584 times in trial, or about 1% of the total. Employers won 7,518 cases, about 14%. Another 3,883 cases, or 7%, were settled on procedural grounds, mostly dismissing the employee’s claims.

Most cases from 2009 to the present ended in nebulous settlements.

What happened to the rest of the cases? No one knows for sure why 78% of cases were dismissed by either the employee or both the employee and employer, but Lex Machina assumes that almost all of those 42,742 cases were settled. But there is no legal requirement to file the terms or even publish the existence of a settlement, so it’s impossible to know for sure how these cases panned out.

Most settlements probably awarded money to the employee, according to Brian Howard, Lex Machina’s legal data scientist. But that doesn’t mean the settlement was a win for the employee.

“We don’t know how much money, what other terms the employee had to agree to, how much they originally sought, how often personal circumstances force the settlement, whether they got any feeling of vindication, etc.,” Howard wrote in an email. “Any settlement amount would likely have to address substantial legal fees, so a plaintiff’s actual recovery might be small.”

It’s not clear why so few employee charges move on to court. One reason may be because the costs of litigation to plaintiffs are often far higher than the actual damages. Plaintiffs, especially those newly out of a job, may be more willing to take a settlement than to pursue a costly and lengthy court trial. Or the cases may not be lucrative enough for an attorney to take on, says Howard.

Only rarely does the EEOC itself bring a case on behalf of the employee–usually for cases that have wide-ranging significance. For instance, the EEOC just sued Time Warner Cable and Charter Communications, charging them with firing an employee over her disability, in violation of the Americans with Disabilities Act of 1990.

EEOC said its legal staff resolved 139 lawsuits and filed 86 lawsuits alleging discrimination in fiscal year 2016. In total, it recovered $482 million for victims of discrimination, including $347.9 million recovered through mediation, conciliation, and settlements; $52.2 million obtained through litigation; and $82 million for federal employees and applicants.

EEOC has also pursued several LGBT related cases. But the Justice Department’s assertion last week that LGBT people are not covered under sexual discrimination laws—the same day President Trump announced that transgender people would be barred from the military—could be just the beginning of changing policies and priorities at the EEOC. Many top posts are being filled with Trump Administration appointees; and while funding has stayed the same, the White House Office of Management and Budget has ordered a reorganization of EEOC that may portend future cuts.

THE REASONS PEOPLE SUE

Discrimination claims make up the majority of complaints that go on to lawsuits, at 87%. Several U.S. laws protect employees against discrimination; Title VII of the U.S. Civil Rights Act of 1964, for instance, prohibits discrimination based on six criteria. They are, in order of number of EEOC complaints: race and sex (the vast majority), national origin, religion, and color. Another law, the Age Discrimination in Employment Act of 1967, prevents discriminating against people over 40 years old. Other laws prohibit discrimination based on criteria like disabilities or being pregnant.

…The second largest category of cases, after discrimination, is retaliation, such as getting fired or demoted for complaining to the employer or the EEOC about discrimination: These represented 66% of all claims. Claims of harassment, including sexual harassment, make up 35% of legal cases filed.

If you’re wondering why those shares add up to over 100%, that’s because many cases fall into more than one category: About half the cases filed since 2009 were for both discrimination and retaliation.

Overlapping claims of discrimination, retaliation, and harassment in U.S. lawsuits filed from 2009 to present. [Graphic: courtesy Lex Machina]

WHO GETS SUED THE MOST

Based on an analysis of cases between 2009 and 2017, Lex Machina has a rough idea of which companies and government agencies have been sued the most. The most commonly named defendants, listed alphabetically, are:

  • AT&T
  • Bank Of America
  • Boeing
  • CVS Pharmacy
  • FedEx
  • Home Depot U.S.A.
  • JPMorgan Chase Bank
  • Life Insurance Company Of North America
  • Sears, Roebuck And Co
  • Target Corporation
  • United Airlines
  • United Parcel Service
  • Walmart Stores
  • Walgreen Co.
  • Wells Fargo Bank

Notice the absence of Silicon Valley companies. Despite all the attention on sexual harassment in the tech sector, so far there have been relatively few legal actions brought by its employees. That could be because most tech firms are smaller than the industrial and commercial giants listed above.

Compared with tech company workers, most of the employees of larger American corporations can face a heavier burden when bringing discrimination or harassment suits. For instance, women in lower-paying jobs who are often subject to harassment have a much harder time fighting against it, since they don’t have the means to risk leaving or losing a job, as FiveThirtyEight documented.

The most-sued government agencies are:

  • City Of New York
  • City Of Philadelphia
  • District Of Columbia
  • New York City Department Of Education
  • United States Postal Service

…In the end, it’s hard to know how well the court system is working to protect employees from unfair treatment. It’s hard to know, for instance, of those cases that are ultimately settled, how many do justice to the employee? For all the data the EEOC and Lex Machina have collected, they show how much we still don’t know.

ABOUT THE AUTHOR

Sean Captain is a Bay Area technology, science, and policy journalist.



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Types of Workplace Discrimination

Workplace discrimination

What is workplace discrimination, and what constitutes discrimination against employees or job applicants? Employment discrimination happens when an employee or job applicant is treated unfavorably because of his or her race, skin color, national origin, gender, disability, religion, or age.

It is illegal to discriminate based on race, religion, gender, or national original when hiring or in the workplace.

It is illegal to discriminate in any facet of employment, so workplace discrimination extends beyond hiring and firing to discrimination that can happen to someone who is currently employed.

What Is Employment Discrimination?

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in hiring, discharge, promotion, referral, and other facets of employment, on the basis of color, race, religion, sex, or national origin. This is enforced by the Equal Employment Opportunity Commission (EEOC).

In addition, federal contractors and subcontractors must take affirmative action to guarantee equal employment opportunity without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. Executive Order 11246 is enforced by the Office of Federal Contract Compliance Programs (OFCCP).

Distribution of EEOC Complaints

The EEOC reported the following breakdown for the charges of workplace discrimination that were received by the agency in 2018:

  • Retaliation: 39,469 (51.6% of all charges filed)
  • Sex: 24,655 (32.3%)
  • Race: 24,600 (32.2%)
  • Disability: 24,605 (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 (0.3%)

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.  



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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)

 

 

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