DISCRIMINATION
What is discrimination?
Discrimination is treating people differently based on a particular characteristic. Employment discrimination occurs
when an employer, or a potential employer, treats one group of individuals differently than another group because
of their age, gender, race, religion, or other protected class.
Is all discrimination against the law?
No. If someone lacks the necessary skills for a particular job, an employer does not have to hire that person.
Likewise, an employer can fire, or refuse to hire, someone simply because the employer does not like that person.
It is also not illegal, for instance, for an employer to fire all employees who were born on a Tuesday. For the
discrimination to be illegal, the employer must be discriminating on the basis of a "protected category".
Title VII of the Civil Rights Act of 1964 prohibits discrimination prohibited in employment on the basis of: race,
sex, religion, creed, or national original. The Americans With Disabilities Act of 1990 prohibits discrimination
on the basis of disability. The Age Discrimination in Employment Act forbids discrimination of those over 40 years
of age.
How do I know if I have suffered from discrimination?
You may have suffered from discrimination if you can prove each of the following:
1.You are a member of a protected class.
2.You were qualified for the job.
3.You were terminated, demoted, denied a promotion, or not hired because you are a member of a protected class;
and,
4.You suffered damages as a result of the discrimination (i.e. you lost wages, suffered from emotional distress,
etc.)
What matters is motive – the reason why you were fired or not hired. If you were fired or not hired because of
your being a member of a protected class, it is illegal. If, however, you were fired, or not hired, because of
some other reason not protected by law (e.g. the employer did not like you, or the employer hired a relative),
it is not illegal.
What is a "protected class"?
A protected class is a group of people who lawmakers protect from discrimination. Today, there are several protected
classes: age (those over the age of 40), sex, race, national origin, disability, creed, or religion. Some states,
and even some cities, protect people from other types of discrimination. For instance, Cleveland, Ohio treats sexual
orientation as a protected class. In order for a particular group of people to gain status as a protected class,
a government must pass a law prohibiting discrimination against a particular group of individuals. If the category
of discrimination is not spelled out in a statute, then the employee, or potential employee is not protected from
that form of discrimination.
Age – discrimination on the basis of age is illegal under the Federal Age Discrimination in Employment Act of 1967 (ADEA). It outlaws discrimination in recruitment, hiring, pay, benefits, training, promotion, job retention, and other employment practices. The law only protects those 40 and older who work for employers who have at least 20 employees. Individuals under the age of 40 are not protected. So, if an employer refuses to hire someone who is 39, it is not against the law. If the employer refuses to hire someone who is forty because the employer thinks the person is too old, it is illegal.
It is not illegal to replace people who earn a lot of money with people who will make less money because they have less seniority. This usually means that older workers are replaced by younger workers. If the employer's real reason for replacing the workers is to have a younger workforce, it is illegal. If wages or salary is the real issue it is not illegal. The employee must prove that it is his or her age and not the wages which motivated the employer to fire the older workers.
Disability – the Americans With Disabilities Act (ADA) makes it illegal for employers to discriminate on the basis of a disability. For an individual to be eligible to make a claim of disability discrimination, he or she must be a "qualified individual with a disability." This means that the person must be able to do the job. For instance, if a person does not have any arms, he or she would not be qualified to be a bus driver (see below for information about "reasonable accommodation"). If the employer does not hire this person, it would not be discrimination. It would simply be that the person is not qualified for the position.
"With a disability" means that the worker is actually disabled. For an injury, ailment, disease, or other ailment to be a "disability" under the law, it must substantially limit one or more major life activities. In determining whether a person has a disability, the Courts pay close attention to whether the disability affects the person's employment or ability to earn a living.
It is also illegal to discriminate against someone who is perceived to have a disability. If the employee is not disabled, but the employer believes that he is and discriminated against him because of the disability, it is illegal.
Reasonable Accommodation – if a person is disabled and the disability makes it seem like the person cannot do the job, the employer must consider whether or not a "reasonable accommodation" can be made. A "reasonable accommodation" is when the employer modifies the job duties, provides extra help, or takes some other measure to ensure that the person can be able to do the job. For example, a person in a wheelchair wants to work for a company who has an office on the second floor of a small building. To accommodate the worker, the company could install an elevator; however, it is probably not reasonable to expect an employer (particularly a small business) to spend that kind of money. There could be other possibilities, however. For instance, if most of the work is done on the telephone selling products, the work could be done from home. It may be reasonable to ask the employer to do the work at home.
Sex Discrimination – Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex for employers with 15 or more workers. When employers treat employees differently on the basis of sex and the discrimination affects the "terms and conditions of employment", it is illegal. "Terms and conditions of employment" means almost anything related to someone's job: title, pay, hours, benefits, etc. There are two types of sex discrimination: disparate impact and disparate treatment.
Disparate Treatment – is straightforward discrimination. For instance, all men are given 11 paid vacation days per year whereas women with the same title are only given 10 vacation days per year.
Disparate Impact – is a more subtle form of discrimination. The company policy appears neutral on its face, however, when it is applied it affects certain individuals differently. The company policy may not have been designed to affect the individuals, it may have been an unfortunate result, but it is nonetheless illegal. For example, fire departments require their job applicants to satisfy certain strength requirements. Women are less likely to meet such requirements than men. In some instances the requirements are necessary but in other instances, the requirements are simply too high. Therefore, qualified women are being excluded. The fire departments may not have set the requirements at those levels to specifically exclude women – that result may have occurred because of their policy. The policy had a disparate impact upon women. Because the policy was not sufficiently job related (too much strength required) there was discrimination.
Sexual Harassment – is a form if sex discrimination that violates Title VII of the Civil Rights Act of 1964. There are two types of sexual harassment:
Quid pro quo sexual harassment occurs when the harasser asks his or her employee to submit to sexual advances in exchange for the employee keeping or advancing in his or her job. Quid pro quo harassment originates from a supervisor or an employee with authority over the victim. For example, a supervisor telling an employee that she will be fired if she does not sleep with the supervisor.
Hostile environment – sexual harassment occurs when the unwanted conduct is of a sexual nature and it is continuous and frequent which makes the work place intimidating, hostile, or offensive to the victim. For instance, lewd jokes, sexual comments, displays of suggestive material, verbal or physical conduct of a sexual nature, or repeated and insistent requests for dates may constitute a case for "hostile environment" harassment. This type of harassment need not originate from a supervisor but may originate from a co-worker or other person whom the victim encounters at work. For example, at a company meeting a male employee sends a female employee to retrieve a document from a specific drawer in his desk. When she opens the drawer, she finds pornographic magazines and no "official documents." A single, isolated incident would not rise to the level of sexual harassment deemed illegal under the law. Title VII was not "designed to purge the workplace of vulgarity." The occasional use of obscene language does not make a hostile workplace, Title VII was intended to protect against a pattern or practice of discrimination. Title VII seeks to protect certain individuals from continuous harassing acts on many occasions which affect the employee's work performance or which create a hostile or offensive environment for the employee.
Other factors to consider in sexual harassment charges: The harasser's conduct must be unwelcome. Did the claimant indicate by her conduct that the sexual advances were unwelcome? A claimant's provocative dress or speech is not necessarily irrelevant. Evidence regarding a claimant's conduct in the workplace, including her history of engaging in sexual banter, horseplay and jokes, coarse language, or her voluntary and open sex with co-workers is relevant and can defeat a claim for sexual harassment.
*The claimant must inform either a manager or the appropriate department
about the unwelcome behavior.*Sexual harassment must rise to the objective level of harassment that a
"reasonable person" would find offensive. The "reasonable person" test
consists of:1. Frequency of the conduct
2. Severity of the conduct
3. Whether the conduct was physically threatening or humiliating
4. Whether the conduct interferes with an employees work performance.*The victim as well as the harasser may be a man or a woman. Also, the
victim does not have to be of the opposite sex.
*An employer is liable for hostile environment harassment only if the
employer knew or should have known about an employees acts of
harassment and fails to take appropriate remedial action.
The employer must have actual or constructive knowledge of the
harassment. Actual knowledge, for example, is a complaint made
in accordance with the corporation's sexual harassment policy.
Constructive knowledge, for example, is harassment that is so
pervasive, open, and notorious that the company's management
(and not low level supervisors), should have had knowledge of the
particular harassment suffered by a particular claimant.
Race Discrimination – is much like sex discrimination except it is discrimination based upon one's race. Title VII of the Civil Rights Act of 1964 also protects individuals against employment discrimination on the basis of race or color. It is illegal for an employer to discriminate against an employee or potential employee because of his or her race or color with regards to hiring, firing, salary, promotion, or any other term or condition, or privilege of employment. Title VII prohibits both intentional discrimination (disparate treatment) and neutral job policies that disproportionately exclude minorities and that are not job related (disparate impact).
Ethnic slurs, racial "jokes," offensive or derogatory comments, or other verbal or physical conduct based on an individual's race/color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the employee's work performance (see hostile environment sexual harassment above).
Employers can also violate Title VII if they segregate their work force by physically isolating racial minorities from other employees or from customer contact. Title VII also prohibits assigning primarily minorities to predominantly minority establishments.
How long do I have to file a discrimination
claim?
A charge of discrimination must be filed with the Equal Employment Opportunity Counsel (EEOC) within 180 from the
date of the discrimination; however, some states permit 300 days. You should move forward with your charge as soon
as possible because evidence and memories fade. Furthermore, a discrimination claim takes a long time to resolve.
The typical case can take two years or longer.
How do I prove that I have been discriminated
against?
1. The employee must show that he or she is a member of a protected class.
2. The employee must show that he or she suffered an adverse employment action. An adverse employment action is
anything the employer does which impacts the employee negatively, such as their position, pay rate, title, hours,
vacation, benefit package, etc.
3. The employee should then ask the employer the reason for the employment action. For instance, a woman is fired
and she thinks the employer fired her because he is sexist. The employer may tell the woman that she was not fired
because she is a woman, but she was fired because the company is downsizing. Just because a person is member of
a protected class does not mean that they can never be fired. The law prohibits employers firing employees simply
because the employee is a member of a protected class.
4. The employee then has the opportunity to prove that the employer's proffered reason for the firing was not the
legitimate reason that the employer articulated. For instance, the employee might be able to demonstrate that her
position was not eliminated, and that on the same day she was fired, someone was hired to replace her.
5. Merely proving that the employer's actual reason for firing the employee was not the legitimate reason is not
enough. The employee must have present evidence that she was fired because she was a woman.
Proving discrimination can occur in a variety of ways. Employers will rarely admit that they discriminate against
a particular group of people; however, there may be evidence of discrimination. Direct evidence includes:
- The employer, or other employees, may have made disparaging
remarks, or slurs, that your co-workers may have overheard.
- The employer may have inadvertently admitted their discriminatory
outlook (e.g. "women don't belong in construction crews.")
- The employer, or other employees, may make "jokes" about particular groups of people that are protected classes.
There may also be indirect evidence:
- Disproportionate statistics (all executives are male, only
workers over age 55 are laid off, or only African Americans are hired. Statistics can be very useful. For instance,
an African American man applies for a job that he is very well qualified for. The company does not hire him but
hires a Caucasian man who is not nearly as qualified. The company may state that they did not hire the African
American man because they did not like him at the interview. That is a legitimate reason for not hiring someone.
If the African American man can show that many or only Caucasian men have been given the position and few or no
African Americans have held the position, he might be enough evidence to prove racial discrimination if the numbers
are good enough.
- There may have been other, past cases of discrimination within
the company.
- Employer may provide false reasons for particular employment
decisions to cover up the discrimination.
- People who are not members of the protected class are treated better even though they only have equal or lesser qualifications.
Provided by the law offices of:
A. Philip Lomonaco
800 S. Gay St., Sutie 2610
Knoxville, TN 37929
(865) 521-7422
www.knox-law.com
izyglty@usit.net