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.

What Federal laws cover employment discrimination?

There are Federal laws that prohibit job discrimination and these are:
  • Title VII of the Civil Rights Act of 1964 (Title VII)

    The Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, or national origin;
  • Equal Pay Act of 1963 (EPA)

    The Equal Pay Act 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)

    The 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

    The Rehabilitation Act prohibits discrimination against qualified individuals with disabilities who work in federal government;
  • Age Discrimination in Employment Act of 1967 (ADEA)

    The Age Discrimination Act protects individuals age 40 years or older; and
  • Civil Rights Act of 1991

    The Civil Rights Act provides several benefits including monetary damages in cases of intentional employment discrimination.

If I sue for discrimination, generally, what will I have to prove?

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.

What is a "protected characteristic?"

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.

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.

Can my employer require me to use vacation time for a religious holiday?

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.

Can I make a claim of discrimination if my employer has a bible on her desk?

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.

Can I be fired because of my religious beliefs?

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.

My company laid me off and hired a younger employee. Is that called age discrimination?

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.

What do I have to do to prove I was fired because of age discrimination?

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.

Are punitive damages awarded if you win your discrimination lawsuit?

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.

Can a pregnant employee be terminated for that reason alone?

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.

Can temporary employees file discrimination claims?

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.

Am I covered for my disability under the Americans with Disabilities Act (ADA)?

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.

Must my employer accommodate my disability?

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.

What governmental agencies might provide more assistance?

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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Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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