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MEL - My Employment Lawyer

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Frequently Asked Questions

Employment Discrimination FAQs


What is discrimination?

Is all discrimination unlawful?

Is age discrimination more common than other types?

How is age discrimination different from other types of discrimination?

How do I know if my employer may have discriminated against me?

What is a "protected class"?

How do you prove you are qualified?

How does anyone ever prove discrimination?

What are "damages"?

What are economic damages?

How does the EEOC measure emotional damages?

What about punitive damages?

What should I do if I was a victim of discrimination?

How long do I have to file a discrimination claim?

Discrimination and EEOC FAQs

Q     What is discrimination?

Discrimination is treating people differently.  Employment discrimination is treating one person better than another because of their age, gender, race, religion or other protected class status. 

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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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Is age discrimination more common than other types?

Court statistics show that most discrimination cases are filed on the basis of age, sex and race.  Sex discrimination cases include sexual harassment, which happens all too often.

Age discrimination happens as much as it does because we are all getting older.  Now that the baby boom generation is almost all between 40 and 65, a huge number of workers are nearing the end of their careers.  This is when employers tend to make decisions based on age, favoring younger workers who they perceive as more energetic and better able to learn new technologies. 

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Q    How is age discrimination different from other types of discrimination?

In most ways it's not: age discrimination happens when an employer makes a decision that hurts you based on an unlawful, illegitimate reason.

Because everyone gets older as time marches on, however, courts have come up with a couple of special rules for age discrimination.

First, if your employer fired you soon after it hired you, courts assume that your termination was not because of your age.  They believe that if your employer had it in for old people, it would not have hired you in the first place.  

Second, if your employer fires you in a "reduction in force" without replacing you, courts will expect you to have "direct evidence" of discrimination, discussed below.  This basically means that you must catch your boss saying things like "this is a good time to get rid of the old guys who are dragging us down" during the discussion about who gets fired.

On the other hand, age discrimination is easier to prove under certain circumstances, such as the termination of a long service (20 plus years) employee over the age of 50 with a good work record.  Unless your employer terminates you along with young people in a general reduction in force, jurors will tend to believe that your age played a part in your termination.

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Q     How do I know if my employer may have discriminated against me?

The courts have come up with a test to see if you have a case.  You may have suffered from discrimination if you are:

  1. a member of a "protected class"

  2. qualified for the job

  3. terminated, demoted, held back because you are a member of the protected class; and

  4. were damaged by that discrimination (i.e., lost wages or suffered emotionally)

If you can prove each of these, you can win a discrimination suit.

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Q      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.

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Q     How do you prove you are qualified?

Employers decide what qualifications are necessary for their jobs. You must then prove that you were at least as qualified as a successful applicant who is not in the protected class.  You can do this by comparing the resume of the least qualified successful applicant to your 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, a court 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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Q     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. 

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Q      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.

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Q     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.

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Q     How does you measure emotional damages?

Emotional damages do not have a precise monetary measure. They are based on testimony of the victim, medical professionals or acquaintances of the victim, who see changes in the victim’s behavior and mood.  Yo can also prove emotional damages by your circumstances, such as having to work demeaning jobs and suffering the embarrassment of being out of work.  

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 age 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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Q     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.

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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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Q     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.

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