Discrimination in Employment FAQs

By Neil Klingshirn

Contents


What does the EEOC do?

The EEOC is a federal agency that investigates and prosecutes unlawful employment discrimination.

back to top

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.

back to top

How does the EEOC prove discrimination?

The EEOC can win a discrimination suit by proving that an employee was

  1. a member of a "protected class"
  2. qualified for the job
  3. terminated, demoted or denied a promotion because he or she is a member of the protected class; and
  4. damaged by that discrimination (i.e., lost wages or suffered emotionally)

The EEOC must prove each of these elements to win a discrimination suit.

Proving the third element of a discrimination claim, that the employer took the adverse action because the employee is in the protected class, requires evidence of motive, which is invisible. The U.S. Supreme Court therefore allows discrimination victims to use a "prima facie case" and "pretext" evidence to reveal an employer's discriminatory motive.

back to top

What is a "protected class"?

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.

back to top

How does the EEOC prove someone is qualified?

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).

back to top

How does anyone ever prove discrimination?

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:

  • disparaging remarks;
  • slurs;
  • admissions of bias ("women don't belong around heavy construction equipment");
  • jokes

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.

back to top

What are "Damages"?

Damages are what you lose because of the discrimination. Discrimination victims typically lose wages, benefits and emotional well-being as a result of discrimination.

back to top

What are economic damages?


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.

back to top

How does the EEOC measure emotional damages?

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.

back to top

What about punitive damages?

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.

back to top

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.

back to top

How long do I have to file a discrimination claim?

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.

back to top

How do I learn more about this topic?

My Employment Lawyer's wiki article on Employment Discrimination Overview is an excellent overview of the topic, with links to questions and answers and related articles. In addition, My Employment Lawyer has the following discrimination articles:

Finally, My Employment Lawyer has articles on sexual harassment, which is a form of sex or gender discrimination. My Employment Lawyer's sexual harassment articles include:

You can also contact us with a specific question. We do not guarantee an answer and charge $200.00 for an initial consultation. We therefore look at our email inquiries as an opportunity to help you decide whether a consultation makes sense for you.

back to top

Contact Us

Michael Fortney Neil Klingshirn Joseph Spoonster
Michael Fortney
Construction Law, Employment and Labor Law, Business Law, Litigation, Arbitration

Articles

Employers Face Risks When Classifying Employees As Exempt The 6th Circuit recently held that an employee of Belle Tire with an "executive" job description was not auto ...
Facebook Posts by Employees Can Go Too Far and Lose Concerted Activity Protection While some Facebook posts by employees are protected as concerted activity under the National Labor Relations Act, Face ...
Arbitrator's Remedy Must Not be Contrary to Established Law When an arbitrator awards a remedy that is contrary to established law and contrary to the remedy provided in the agree ...
Employers Must Submit BWC Settlement Claims by October 22, 2014 Group-rated employers who received a settlement claim form from the San Allen Inc. v. Bureau of Worker's Compensati ...
Facebook "Like"s May Be Protected Employment Activity "Like"ing a Facebook post may be a protected concerted activity under federal labor law, meaning an employer ...