Q
Is all discrimination unlawful?
No. For example, an employer
does not have to hire someone who lacks qualifications.
An employer could also refuse to hire anyone born under
the sign of Aquarius, without breaking the law.
How can this be?
Discrimination laws respond
to specific, invidious biases that have worked their way
into employment decisions. These biases lack any valid business
justification and have been used to deny people employment
opportunities because of the bias.
While a bias against people
born under the sign of Aquarius lacks any business justification,
it is not so wide-spread that Aquarias generally are at
a disadvantage when it comes to employment opportunities.
The EEOC therefore only prohibits discrimination based on
age, sex, race, national origin, disability, creed or religion.
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Q
How does the EEOC prove discrimination?
The EEOC can win a discrimination
suit by proving that an employee was
-
a member of a "protected
class"
-
qualified for the job
-
terminated, demoted,
held back because he or she is a member of
the protected class; and
-
damaged by that discrimination
(i.e., lost wages or suffered emotionally)
The EEOC must prove each of
these elements to win a discrimination suit.
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Protected classes are groups
that lawmakers specifically protect from discrimination.
Today, they include anyone who suffers discrimination
because of their age, sex, race, national origin, disability,
creed or religion. Some states and and even cities,
such as Cleveland, Ohio, protect people against other types
of discrimination, such as sexual orientation discrimination.
A government must pass a law
prohibiting discrimination against a particular class of
people to create a new protected class.
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The EEOC lets employers decide
what qualifications are necessary for their jobs. The EEOC
must then prove that the victim of discrimination was at
least as qualified as a successful applicant who is not
in the protected class. The EEOC can do this by comparing
the resume of the least qualified successful applicant to
the victim's qualifications. If the employer says
it requires a 12th grade education but in fact has hired
someone outside of the protected class who only made it
through grade 10, the EEOC will treat a 10th grade education
as the employer's actual qualification requirement.
While an employer can set qualifications,
it cannot use different qualifications for protected and
non-protected class members (for example, women but not
men have to pass a skills test) or set qualifications that
exclude a disproportionate number of protected class members
(for example, minimum lifting requirements that disqualify
a greater percentage of women then men).
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Good question. Few employers
admit that they discriminate against applicants or employees.
Experience shows, however, that employers still leave plenty
of fingerprints. This includes:
Direct, or "smoking gun"
evidence, such as:
Indirect evidence, such as:
-
statistics (an all white,
male executive team or a higher than expected proportion
of older workers laid off)
-
Other cases of discrimination
-
Pretext (bogus reasons
given for employment decisions to cover up the unlawful
reason)
-
Better treatment of people
outside of the protected class who have equal or lesser
qualifications.
If you think you are a victim
of discrimination, look at who the decision-maker is (a
known bigot or a fair-minded boss) and compare your qualifications
to the successful candidate (be honest about your flaws).
If the decision looks suspicious, ask the decision-maker
for an explanation. If the explanation is bogus, add it
to your arsenal of evidence.
Tip: If you think
you are a victim of discrimination, make a diary of discriminatory
events. Be factual (who, what, when where and why)
and do not express opinions or make disparaging remarks.
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Damages are what you lose because
of the discrimination. Discrimination victims typically
lose wages, benefits and emotional well-being as a result
of discrimination.
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Economic damages are the amount
of wages and benefits lost as the result of discrimination.
Victims who prevail at trial are entitled to be "made
whole", or put in the same place economically that
they would have been without the discrimination. This includes
benefits and seniority.
Victims of discrimination have
a duty to mitigate economic damages. This means that
they must use reasonable efforts to find comparable employment
and accept such employment if it is offered to them.
In other words, the law helps those who help themselves.
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Emotional damages do not have
a precise monetary measure. They are based on testimony
of medical professionals or acquaintances of the victims
who observe changes in the victim’s behavior and mood. Like
pain and suffering in personal injury cases, compensation
for emotional damages is based on what the jury considers
fair. As a general rule, the higher the monetary damages,
the greater the award for emotional damages.
If you have not suffered damages,
you cannot win a discrimination suit. This could be
the case, for example, if you were the victim of blatant
discrimination, but quickly found a higher paying job that
you liked better than the job you lost due to the discrimination.
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If you prove every other part
of your case, you might get punitive damages. Punitive
damages are awarded to punish an employer for discriminating
and to deter it and others from discriminating in the future.
Federal courts limit the amount of emotional and punitive
damages that discrimination victims can recover to $50,000
to $300,000, depending on the size of the employer.
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Q
What should I do if I was a victim of discrimination?
Consult experienced employment
counsel in your state to learn the rights available to you
in your state. An employment attorney will charge
a fee, if not at the initial consultation, then once he
or she accepts your case.
You can also file a charge
of discrimination with the EEOC or, in most states, with
a state fair employment agency such as the Ohio Civil Rights
Commission. The EEOC and similar state agencies do
not charge a fee or take a percentage of your recovery.
However, you get what you pay for. The EEOC
is still struggling under a back log of cases, and investigators
may not dig into your case the way a private attorney might.
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Not long. You must file
a charge of discrimination with the EEOC within 180 days
of the discrimination or, in some states, within 300 days.
Therefore, the sooner the better. In addition, you
should act before evidence goes away and memories fade.
Finally, the legal process takes a very long time
-- two years or more in the typical case. Therefore,
the sooner you start the process the sooner you will have
the opportunity to prove a case of discrimination.
