Discrimination in the Workplace
Title VII prohibits discrimination in employment, including hiring, firing, compensation, terms, conditions, or privileges of employment on the basis of race, color, religion, sex, or national origin. Section 701(k) of Title VII also prohibits discrimination on the basis of pregnancy. The Age Discrimination in Employment Act (“ADEA”) prohibits discrimination due to age in individuals age forty (40) and over. The Americans with Disabilities Act (“ADA”) prohibits discrimination against persons with disabilities or perceived disabilities.
Types of Workplace Discrimination
Age Discrimination
The Age Discrimination in Employment Act prohibits discrimination due to age in individuals age forty (40) or older with no maximum age.
Race Discrimination
Race discrimination applies to people who have been discriminated against due to their race or perceived race. Race discrimination in some instances, in addition to or instead of Title VII may be protected under Section 1981 of the Civil Rights Act of 1866 (“Section 1981”).
Color Discrimination
Color discrimination applies to those who have been discriminated against due to the color of their skin.
Religion Discrimination
Religious discrimination applies to people who have been discriminated against due to their religious beliefs.
Sex Discrimination
Sex discrimination is directed at someone because of their sex and includes pregnancy discrimination as noted below. It also includes discrimination based on a person’s sexual orientation, gender identity or non-gender identity. Sexual orientation: how a person is attracted to another person. Gender identity is how a person identifies in terms of gender and can include how the person also identifies in terms of appearance even if that appearance may be different then the sex the person was assigned at birth.
National Origin Discrimination
This applies to those who have been discriminated against due to their country of origin, original or perceived place of birth, accent, ancestry, native language, or because someone thinks they sound or look “foreign.”
Pregnancy Discrimination
It’s unlawful to discriminate against women who are pregnant or are planning to get pregnant.
Disability Discrimination
The Americans with Disabilties Act prohibits discrimination against persons with a disability or preceived disability. Such disability discrimination includes treating individuals unfairly or differently in the workplace due to a perceived disability, a known disabilty, or the individual having association with a person who is disabled.
Genetic Discrimination
The Genetic Information Nondiscrimination Act (GINA) of 2008. Title II of GINA is implemented by the Equal Employment Opportunity Commission (EEOC) and prevents employers from using genetic information in employment decisions such as hiring, firing, promotions, pay, and job assignments. Furthermore, GINA prohibits employers or other covered entities (employment agencies, labor organizations, joint labor-management training programs, and apprenticeship programs) from requiring or requesting genetic information and/or genetic tests as a condition of employment. The regulations governing implementation of GINA in employment took effect on January 10, 2011.
How to Prove Discrimination
Discrimination can be very hard to prove, however, there are a few ways that you can prove evidence of discrimination in the workplace:
Direct Evidence
Direct evidence consists of recorded statements, voicemails, emails, text messages, or written documents. These types of evidence are extremely challenging to produce as those who discriminate tend to do so in a much less obvious way.
Circumstantial Evidence
Unlike direct evidence, which directly proves a fact, circumstantial evidence proves the fact by inference. For example, your manager could have told you that you were passed over for a promotion because you were “too inexperienced,” despite you having the requisite experience and qualifications needed for the position. However, even with circumstantial evidence, you still have to show the real reason was due to discrimination. This can be difficult to do if the employer gives other legitimate reasons for not getting the promotion.
Pattern and Practice
This type of evidence describes a documented pattern in discrimination. For example, if you are well-qualified for a new position within your company and you have been passed over for promotion several times in a row, this could indicate there is a pattern and practice of discrimination.
Remedies for Discrimination
Remedies for discrimination can include but are not limited to;
- Back Pay (diminished by interim earnings, but including lost benefits). Front pay, including benefits.
- Equitable relief, including injunction, promotion, and/or reinstatement.
- Compensatory damages, including emotional distress, and medical or psychiatric expenses.
- Punitive damages.
- Attorney’s fees and costs.
The case is tried by a jury by the court which determines attorney fee and cost award. Under Title VII, the compensatory and punitive damage available are subject to caps based upon the size of the employer. The caps apply as a restriction on the combined compensatory and punitive damages award, but do not encompass the past and future lost income and benefits, or the attorney’s fees and costs, which as noted above are set separately by the court.
15 to 100 Employees = $50,000
101 to 200 Employees = $100,000
201 to 500 Employees = $200,000
500+ Employees = $300,000
The Process
At the Quinn Law Centers, Colleen M. Quinn represents both employers and employees. The first step for either is to schedule a consultation to review the situation and assess if a valid claim of discrimination can be asserted. Attorney Colleen M. Quinn can do this within an hour or half hour consultation depending on the extent of the facts. If there appears to be a legitimate claim or claims, then for employees, typically a demand letter is prepared to the offending employer setting out the claim or claims. For employers, the employer will be advised how to best mitigate the situation.
At the Quinn Law Centers, Colleen M. Quinn represents both employers and employees. The first step for either is to schedule a consultation to review the situation and assess if a valid claim of discrimination can be asserted. Attorney Colleen M. Quinn can do this within an hour or half hour consultation depending on the extent of the facts. If there appears to be a legitimate claim or claims, then for employees, typically a demand letter is prepared to the offending employer setting out the claim or claims. For employers, the employer will be advised how to best mitigate the situation.
For cases under Title VII, the ADEA, the ADA and GINA, before pursuing a lawsuit, charges must be filed with the Equal Employment Opportunity Commission (EEOC) and/or state equivalent council on human rights. Cases under Section 1981 can proceed directly to court.
*Charges against discrimination must be filed within 180 or 300 days (depending on the state) after a “reasonable plaintiff should have know facts that would support a charge of discrimination”.
For cases under Title VII, the ADEA, the ADA and GINA, the EEOC and/or state council will request evidence, typically, in the form of exhibits, affidavits, employee interviews, and position statements in conducting the investigation.
If the employee does not file the lawsuit within the ninety (90) days of the issuance of the right to sue letter, then no lawsuit can be brought.
*An employee must file suit within 90 days after receipt of the right to sue letter from the EEOC to preserve the right to litigate the discrimination charge.
Discrimination FAQ
Can I get fired if I file a discrimination claim or lawsuit?
An employer may not fire, demote, harass or otherwise “retaliate” against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. So if someone is fired for filing a claim or lawsuit, that person also may have a claim of retaliation as well.
What are the different types of discrimination in the workplace?
Discrimination can be in the form of denial of employment or employment benefits, such as promotion or increases in pay, or in firing or demotion. Discriminaton also can be in the form of harassment based on one of the protected factors. Sex discrimination can be in the form of general harassment or quid pro quo harassmnet. “Quid pro quo” means “iti for tat.” So, by way of example, if a supervisor asks a reporting employee to go out on a date, and the reporting employee refuses and is then fired by the supervisor, that would be quid pro quo harassment.
What is the deadline for filing a discrimination claim?
Federal law states that you must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the incident. This must be done prior to bringing a lawsuit against your employer. In most cases where there is also a parallel state council on human rights, that deadline is extended to 300 days.
What is “retaliation”?
Retaliation is when an employer treats a job applicant or current or former employee (or their close associates) unfairly for reporting discrimination, participating in a discrimination inquiry, or opposing discrimination.