Contents
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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Q 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:
-
a member of a
"protected class"
-
qualified for the
job
-
terminated, demoted,
held back because you are a member of the protected
class; and
-
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:
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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