Discrimination
As most employees are aware there are certain federally protected classifications. Employers cannot take adverse employment action against employees on the basis of these classifications. The protected classes include race, color, national origin, sex or gender, pregnancy, religion, age (over 40 years), physical or mental disability, military service or obligations, or retaliation for asserting your rights under various statutes.
As important, but less familiar are the types of adverse employment
actions that the law prohibits. Not every nasty look or cross
word is actionable. The courts state that the employer’s action
must alter the employee’s compensation, terms, conditions or privileges
of employment. Clearly termination, demotion, refusal to promote,
or a cut in pay or benefits qualify.
Other actions must affect the terms, conditions or privileges in a substantial or material way. In other words the change must be important to your daily work life. While transfers, removing support staff or failure to provide training opportunities can be actionable, it can be difficult to prove. Frankly, if the employer’s action does not affect the money you take home or the benefits you receive, establishing an adverse employment action is an up-hill battle.
Importantly the federal law does not require that every employee be treated alike. The law requires that similarly situated employees not be treated differently on the basis of a protected classification. The easiest way to prove discrimination is what is called direct evidence. Direct evidence is testimony stating that the decision maker said for example “Let’s fire Ms. Smith because she is a woman/over 40/et cetera.” A statement by the same person that “I prefer to work with men” or “Let’s get rid of the old people” is not direct evidence. The statement must directly link the actual adverse action with the discriminatory intent. The latter statements, however, are circumstantial evidence which may be helpful in proving a claim. Direct evidence is very rare.
More often the employee must rely on circumstantial evidence. You must initially be able to establish that you are qualified for the position, are a member of a protected class, and a person outside your protected class received the position. The employer then must put forth a legitimate non-discriminatory reason for its decision. If it does so, the employee must be able to show some evidence that discrimination actually motivated the decision. The best way to do this is to show that the reason given by the employer is false, or what the law calls pretextual. These types of cases are often difficult to prove.
When you call us you should be prepared to provide very specific facts as to why you think that discrimination on the basis of one of the protected classifications motivated or caused the employer to act the way that it did.
A special note regarding claims of discrimination on the basis of disability. Generally you must be able to show that you requested a reasonable accommodation of your disability and the employer refused.
