By Lawrence P. Schaefer |
Discrimination in the workplace occurs when an employee, or job applicant, is treated differently and suffers adverse action because of his or her “protected class status.” Federal law protects employees based on race, gender, national origin, ethnicity, age, disability, and religion. State law covers these same protected categories, and adds sexual orientation (which has also been interpreted as a protected class under federal law), marital and family status, and receipt of welfare or other public benefits. There are other more obscure protected protections, some arising at local or municipal levels, but the above categories cover the vast bulk of discrimination claims.
When Is “Adverse Action” Sufficient to State a Discrimination Claim
Typically, adverse actions are getting fired, not getting hired, being paid less, not getting benefits provided to others, or not getting demoted or not promoted. It can, however, encompass any action which can be shown to have demonstrable a negative impact on your career progression, including being excluded from specific mentoring or career advancement opportunities. It generally doesn’t include, however, a single unfavorable performance review or similar “coaching” on the job.
Adverse action can also include conduct which creates a “hostile environment.” This generally includes harassment which is severe enough to “alter a term or condition of employment,” as evaluated under a reasonable person standard. Therefore, under all of the above protected classes, a claim can be successfully advanced for harassment which creates a hostile work environment.
I’m in a Protected Class and Have Suffered Adverse Action. How Does My Lawyer Prove Discrimination?
This is where “the rubber hits the road” in most discrimination cases. Sometimes, there is “direct evidence” of a biased motive – the manager makes a statement relating to the adverse action which establishes, standing alone, a discriminatory motive. This is very rare, however, and usually discrimination must be proven through “circumstantial evidence.” This most often takes the form of evidence that the employer has treated individuals who are not member of the protected class more favorably. The U.S. Supreme Court has described this evidence – called “disparate treatment” – as “the essence” of discrimination.
The Supreme Court has also established a three-step method of examining evidence in cases not involving direct evidence:
- The employee has to establish a “prima- facie” case of discrimination, usually by demonstrating they are in a protected class and suffered adverse action;
- The employer must then offer an explanation that is not discriminatory – referred to as a legitimate business reason; and,
- The employee then has the burden of proving that this legitimate business reason is actually a “pretext” masking a discriminatory motive.
This is where real expertise from your legal counsel becomes critically important. Pretext can be proven by many methods, including simply that the claimed business reason lacks credibility. Other avenues include, but are not limited to, offering disparate treatment evidence, establishing that the employer didn’t follow the policies which are to govern the alleged business reason (i.e. progressive discipline was ignored), or establishing that “the punishment didn’t fit the crime” even if this legitimate business reason is accepted.
If Discrimination Is Proven, What Damages Can Be Awarded?
While there can be limits imposed by federal or state laws, an individual who proves discrimination can generally recover economic loss through trial and for a reasonable time into the future, “other compensatory damages” which generally includes emotional distress and/or damage to reputation, punitive damages in very egregious circumstances, civil fines under state law, and, significantly, attorneys’ fees and costs incurred. This latter remedy is critical, because it allows your attorney to be paid by the other side when discrimination is proven.
Schaefer Halleen lawyers have deep experience and a nuanced understanding of every aspect of proving a claim for discrimination. We are available for a free consultation to assist you in determining whether you have been subject to discrimination and discussing a strategy for proving the case, usually on a contingent fee basis (i.e. you pay nothing for legal fees until a favorable result is achieved by settlement or judgment).
