Employment Law: Discrimination
If you feel that you have been unfairly discriminated against by an employer, you may have the right to sue them for discrimination. This article will help you understand what the laws are that may protect you, the facts and proof you will need to make your case, the questions you need to ask, and the agencies that may provide assistance.
Q: What Federal laws cover employment discrimination?
A: There are Federal laws that prohibit job discrimination and these are:
- Title VII of the Civil Rights Act of 1964 (Title VII) - prohibits employment discrimination based on race, color, religion, sex, or national origin;
- Equal Pay Act of 1963 (EPA) - protects men and women performing substantially equal work in the same establishment from gender-based wage discrimination;
- Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) - prohibits employment discrimination against qualified individuals with disabilities in the private sector and in state and local governments;
- Sections 501 and 505 of the Rehabilitation Act of 1973 - prohibits discrimination against qualified individuals with disabilities who work in federal government;
- Age Discrimination in Employment Act of 1967 (ADEA) - protects individuals age 40 years or older; and
- Civil Rights Act of 1991- provides several benefits including monetary damages in cases of intentional employment discrimination.
Q: If I sue for discrimination, generally, what will I have to prove?
A: You will have to prove that you are a member of a "protected class" which means being included being part of a group of people covered by Federal law. A short list of relevant protected classes appears below:
- Race or Color or National Origin - Civil Rights Act of 1964 and of 1866
- Ethnicity
- Religion or sect - Civil Rights Act of 1964
- Age (40 and over) - Federal: Age Discrimination in Employment Act of 1967
- Sex/Gender (including pregnancy) - Equal Pay Act of 1963 & Civil Rights Act of 1964
- Sexual orientation (available in some jurisdictions)
- Disability status - Vocational Rehabilitation and Other Rehabilitation Services of 1973 & Americans with Disabilities Act of 1990
You will also need to prove that (i) you are qualified for the position or particular job that you applied for but were denied, and (ii) that you were fired because of discrimination for one of the above reasons and replaced by someone that did not fit into the above categories. Using age discrimination as example, you were fired when you turned 60 and were replaced by someone who was 35, even though you were still perfectly able to perform your job. You may also claim that a younger person was hired even though you were clearly more qualified for a position. If you believe you were fired for a specific reason, replacing you with a younger person does not mean that discrimination exists - you would need to prove the reason you were given was false or inappropriate. This type of analysis would generally cover other kinds of discrimination such as gender or race.
Q: What is a “protected characteristic?”
A: A “protected characteristic” is the characteristic of the protected class for which you may qualify. For example, a person who is age 53 can qualify for the protected class of prevention of age discrimination - "age" is the characteristic of the protected class. Other protected characteristics include race, color, national origin, religion, sex, sexual orientation, disabled individuals and those mentioned above.
Q: What is good evidence for me to gather in order to make my case?
If you believe that you have been discriminated against, you would want to collect evidence that may show a pattern of discrimination exists in your workplace. For example, if your employer seems to be firing or treating women who are pregnant in a less satisfactory manner than the rest of the employees. Another example might be your employer promoting less qualified candidates who are of a specific race or religion instead of the merit of higher performing employees who are not of that specific race or religion.
Q: Is it discrimination if my employer charges me against my vacation time if I take a religious holiday?
A: If your employer handles all employees religious holidays the same way, it would probably not be considered discrimination. Employers are generally required to provide reasonable accommodation for the religious practices of employees unless it can show that doing so might result in undue hardship for its business. Many businesses will provide “floating holidays” in addition to the regularly scheduled holidays so that employees can take time off for religious observances not covered by the employer’s established holiday schedule.
Q: Can I make a claim of discrimination if my employer has a bible on her desk?
A: No. However, your employer does not have the right to try to force his or her belief onto you. If you do not wish to discuss religion, you have the right to refuse to and not be fired.
Q: Can I be fired because of my religious beliefs?
A: Employees are protected from religious discrimination in the workplace. If you were fired and believe it is because of your religious beliefs, you will have to demonstrate that (i) you held a genuine religious belief that conflicted with your employment requirements, and (ii) that you informed your employer of the conflict and that when you did, it resulted in your termination. That is called establishing a "prima facie" case or proving the basic elements of your case. Once a prima facie is established by an employee, the employer bears the burden to prove that there was no reasonable manner in which they could have accommodated your religious beliefs without causing harm or undue hardship to the company.
Q: My company laid me off and hired a younger employee. Is that called age discrimination?
A: There is a possibility that it is. If you are over 40 years of age you are protected from age discrimination. Employers can not lay of older employees for the sole purpose of replacing them with younger ones. However, if a younger employee is better qualified or possesses greater skills, they can lay you off and hire them legally.
Q: What do I have to do to prove I was fired because of age discrimination?
A: If you have been fired because of age discrimination, you will need to show that you are over the age of 40 and were fired only because of your age and not due to performance. You will have to show that (i) you are perfectly capable of performing your job, (ii) you are working up to par with the rest of the employees for that company, and (iii) that some discrimination or bias existed, such as a layoff that consisted mostly of people over the age of 40 or that you were replaced with someone younger than age 40.
Q: Can I get money such as punitive damages awarded to me if I have been discriminated against, for example, because of my age?
A: This will depend on the facts of the case. With age discrimination, it is not uncommon that an employee is given their job back, promoted or given a new position instead of a money award. Punitive damages can be won for age discrimination but that would require proof of "malice" by your employer to win a punitive award. It is very difficult to prove malice, which is a wicked or extreme ill will against a person with the desire to cause them injury.
Q: Can a pregnant employee be terminated for that reason alone?
A: No. You cannot be fired just because you are pregnant or believes you may become pregnant. However, if you employer has other grounds to terminate you, he can do that despite your pregnancy. You may wish to uncover evidence that may lead a reasonable person to believe that your employer does not look favorable upon pregnant women and see how other pregnant women in your company may have been treated.
Q: Can temporary employees file discrimination claims?
A: Some state laws vary for temporary employees. In generally, everyone is entitled to Title VII protection with regard to discrimination, even if you are a temporary employee. Courts will analyze cases like this under common law principles of agency. There is a “loaned servant doctrine” where an employee can be considered an employee of both the company for which the employee is performing temporary work and for the temporary employment agency that hired the employee. You may be able to sue for discrimination if either one discriminates against you.
Q: Am I covered for my disability under the Americans with Disabilities Act (ADA)?
A: The ADA statutes define disabilities as:
- Having an impairment that limits one or more of your major life activities. It can be either physical or mental.
- Those who have a record of such an impairment
- Others can tell believe you have such impairments.
Q: Must my employer accommodate my disability?
A: Only if accommodating you can be done "reasonably." You must show that you are qualified and able to do your job. If you can not show that you are able to perform your regular employment duties, your employer is then not required to make the accommodations.
Q: What governmental agencies might provide more assistance?
A: The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of the discrimination laws discussed in this article. The EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies and can be an invaluable resource in making a bona fide discrimination case against an employer.
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12 Comments on “Employment Law: Discrimination”
I filed a case of discrimination against my employer with EEOC. Recently, I received a letterfrom the EEOc office advising me to sign an undertaking prepared by it’s office that my employer, even though did not accept/agreed with the allegation, is ready to pay me some amount for the period I was laid off and give me a neutral reference(sample attached to the letter).
I persolly feel that this is a ‘buy- over’ to keep me away from requesting my job back. How do you see this? What is your advice ? If I accepted this offer, what are the legal implications? What can I do to get my job back?
Best to post in our free legal advice forums in full. Without seeing the agreement, how can I comment?
With regard to getting your job back, there are no guarantees - there is no “right” to get your job back and you might not want it if there really was discrimination. My suggestion - speak to a lawyer if you have a real discrimination case. We have a free employment discrimination case review if you’d like as well.
im currently working at a retirement home and i’ve been investigated by detectives due to a stolen purse.However, there are plenty of employees there and i was the only one to get investigated.There are no cameras or any evidence to say that it was i who commited the crime.I told the detective that i would take a polygraph if my job was on the line but he declined my offer. Can i sue for descimination????
What would happen if I am being disciminated against because of my sexual oreintation and it’s in a state or area where because of your sexual oreintation you can not claim discrimination cases? What if your employer just doesn’t like you and has on multiple occasions tried to get you in trouble but nothing has come up that stuck? What if they feel they have a case towards me and they are making false accusations and are even willing to turn me into a licensed board of officials? What if this employer was doing an investigation on an issue regarding myself and during the investigation slandered my name, reputation and livelyhood to other staff and our customers? These false accusations can effect me as a professional. This can cause me to not be accepted for other jobs, my social status to be effected, my reputation destroyed. What if I dont fall into a particular catorgory but am being discriminated against as a person. Defamation of character? Any advice on this subject is greatly appreciated.
I worked in County Government. When the newly elected officials were sworn in and took office they replaced exisiting employees on day one..their reason was just to not retain us. or we don’t think you will fit in with the new people coming in..Although our County is a at will employer.and i live in a right to work state.(Kansas) Our local election was a heated race and supporters of the other canidates were the ones removed. While this is not very professional is it legal?
Difficult to say whether a job termination is illegal without the absence of something clear like discrimination or some clear right which was violated. It is usually an issue dependent heavily upon circumstances.
I am currently on a doctors leave. I was hospitalized for 4 days due to a illness that could have caused a heart attack. . Upon my discharge from the hospital . My instructions was to see the doctor. I went to the doctors office , still not well. after more tests was ran. My doctor has taken me off of work for a dew more days and faxed a time off note to my employer. When i called to make sure they had receieved the note . I was advised by human resources person , that if i didnt come back by the reqiured date even if my doctor think i am well enough or not i will be terminated. Can this happen?????
On Aug. 27th, 2008 I suffered an injury while @ work. A Workers’ Comp. claim was filed and I was placed on modified duties. Prior to the injury my employeer changed my job duties (I was hired as an Accountant 2006) to Purchasing/AP Representative 6/2008. When I was approached by my supervisor, the Human Resources Manager and the Purchasing Manager I was told that my Accounting position was going to be terminated and that my Accounting duties were going to be streamlined and soon to be absolute. I was told that if I accept the new position I would have an office in the warehouse, that everyone would have to come to me regarding all items received in the warehouse and on the dock and that I would also have to receive items from the dock, stock the warehouse, deliver items to the necessary departments and individuals and order lab coats for the company when required (manual labor). I told them that I had a bad back and could not do any lifting and stand for long periods of time. I was told that what items that I couldn’t move that I could go to the shipping department and ask the guys to assist me in moving items from the dock to the warehouse. I submitted a restriction letter from my doctor stating what I couldn’t do. Upon accepting the position under duress I finally moved from the Accounting department to the warehouse. I was trained on how to receive items from the dock that consisted of office supplies, lab materials (including but not limited to liquid hazardous materials), lab coats, etc. I injured my back, filed the Workers’ Comp. claim and was placed on modified duties. I continued to perform my accounting duties but other employess continued to do the receiving/purchasing duties. I was scheduled to go to the doctor for back, neck and shoulder treatments three times a week. Prior to me returning to work I was out for 5 days. My new supervisor asked me how did I want to handle the days I was off from work and I told him that since I had 40 hours of personal time to use 20 hours so that I could receive a full check. When I received my pay check is was for only one week. I asked my supervisor why didn’t he use my personal time to cover my check and he told me that the HR Manager told him that I couldn’t use my personal time to cover the time I was out due to my surgery. I found out that I could use my personl time any way I wanted and that the HR Manager hassling me because she knew that I was working from pay check to pay check and wanted me to have problems with my pay check. I e-mailed her regarding what she did and she visciously said, “What makes you think you can get paid twice through Workers’ Comp. and your PLB time? I told her no and went to my old supervisor and told him what she had done and he e-mailed her stating that I needed my pay and whatever was paid to me through Workers’ Comp. I would reimburse the company when settled. On Feb. 13, 2009 I was approached by the HR Manager and my old supervisor (current supervisor left the company so my old supervisor had become my supervisor again) stating my position as Purchasing/AP Representative had been terminated and that I was going to be laid-off. They submitted a severance package which I was to receive 4 weeks of pay if I was to sign a contract stating they were not responsible for anything that had happened to me during my years of employment. The three years I was employed by my company I only received one review and was never reprimanded for anything. I did my work as required; my supervisor and I never had a problem until I questioned the Facilities Manager regarding when was the last time the A/C vents had been cleaned. When I questioned him my supervisor came to me and told me that the CEO told him that if I didn’t stop what I was doing I was going to lose my office. Now I am without my job and after a week of being laid off, the company hired some one to perform my AP duties. Was I discriminated against due to the filing of Workers’ Comp. claim and a whistleblowr? Thank you
I’m not sure that you have a whistleblower’s claim or that your being terminated had to do with filing a Worker’s Comp claim. I don’t know about the timeline of events. You suffered an injury a year ago and am unsure when everything took place, including the dates. For a case like yours, you would need to have the facts well organized and speak to an attorney. Being laid off is a possibility - but was someone else hired to replace you at your job? Perhaps you’d like to ask the question with dates in The Law Forums.
Unless an employee has a contract (or state law provides for another rule of law), most people are “at-will” employees who are able to be terminated from employment for a reason or no reason at all. Even if such a general rule did not apply, I think it might be difficult to show that a wrong has been committed when a company replaces an employee who is out from work for an extended period of time. The show must go on and someone has to fill a vacant position. If there is no discrimination occurring, then it is difficult for the law to prescribe a “remedy” for the misfortune of having a medical condition that keeps them out of work.
I Was Forced To Resign Do To Racial Discrimination From The Appalachian Mountain Club Highland Center I Was The Only African American Employee Working There And I Have Proof That The The HR Director And The Highland Center Director Knew About This And They Did Nothing To Help Me In This Situation My Ex Manager And Another Employee Who Both Resigned Knew This Racial Discrimination Was Going On And Even In There Resignation Letter Stated How They Where Upset At The Way The A.M.C Was Not Helping Me In This Situation I Worked There For Almost Two Years And I Never Had A Problem With Any Job Task I Was Asked To Do Witch I Have On Audio Tape With Me And The Highland Center Director Talking About This Matter On 6/15/2008 But On 10/14/2009 They Told The Unemployment Officer Cindy Noble That I Had Not Spoken To Them About This Matter And I Also Emailed The Audio Conversation To Her But She Still Denied Me My Unemployment Benefits So My Question Is Do I Have A Lawsuit?
James - you may have a lawsuit and the kind that an attorney may take on a contingency fee. You can try our Free case review or click the link on the home page. You can also try our law forums if you feel like you’d want to ask more questions.