Employment Discrimination FAQ

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  • What must I prove in an employment discrimination case to sway the jury in my favor?

  • An employer can't make decisions based on a protected characteristic. But what is a protected characteristic, anyway?

  • My employer is making me take vacation time for my religious holiday. Isn't that discrimination?

  • Is it discrimination if the employee next to me has a Bible on her desk?

  • Can my employer fire me because of my religious beliefs?

  • If I get laid off and a younger employee is kept, is that discrimination?

  • What must I prove to win an age discrimination claim?

  • What types of damages can I recover for age discrimination?

  • I had a bad review and my employer says if I don't shape up I'm going to be fired. But I'm pregnant. Is he allowed to do that?

  • My employer is a real jerk, and keeps yelling at me for no reason. Is that discrimination?

  • Are temporary employees able to file discrimination claims?

  • What is necessary for a person to prove that he or she has a disability under the Americans With Disabilities Act?

  • What kind of work accommodation must an employer make for a handicapped person?

  • How does "bona fide occupational qualification" apply to discrimination?

    Q: What must I prove in an employment discrimination case to sway the jury in my favor?

    A: A plaintiff must show that:
    • He or she is a member of a protected class, such as age (over 40), gender, minority, disability and so forth
    • He was qualified to do the position or job
    • He was discharged
    • He was replaced by someone outside the protected class
    • The employer's proffered reason for discharging him was false and merely a pretext for the real reason of discrimination

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    Q: An employer can't make decisions based on a protected characteristic. But what is a "protected characteristic," anyway?

    A: "Protected characteristics" include age (40 and older), race, national origin, sex, religion, disability, pregnancy and in some states sexual orientation.

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    Q: My employer is making me take vacation time for my religious holiday. Isn't that discrimination?

    A: No, not as long as that is the way he handles it for all employees of all religions who want to take a day that is not one of the company's scheduled holidays.

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    Q: Is it discrimination if the employee next to me has a Bible on her desk?

    A: No. But if she tries to push her beliefs on you and you aren't interested, you do have the right to ask your employer to make her stop, and the employer likely should.

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    Q: Can my employer fire me because of my religious beliefs?

    A: Employees are generally protected in the workplace from discrimination because of sincerely held religious beliefs, but there are exceptions. Courts use a two-step process to evaluate a claim of religious discrimination:
    • An employee bears the initial burden of demonstrating what is called a "prima facie" case of religious discrimination. He meets that burden if he can show that:
      • He holds a sincere and genuine religious belief that conflicts with an employment requirement
      • He has informed his employer of the conflict
      • He was discharged for failing to comply with that conflicting employment requirement
    • Once the employee establishes his prima facie case, the burden then shifts to the employer to show that it could not reasonably accommodate the employee without undue hardship in the conduct of its business. The reasonableness of an accommodation is determined on a case-by-case basis

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    Q: If I get laid off and a younger employee is kept, is that discrimination?

    A: Maybe. If you're 40 or older, you're protected against age discrimination. That means an employer cannot lay you off and keep someone younger just because they're younger. But you could be laid off while a younger employee is retained if the younger employee has greater skills. It depends on what factors the employer is using to make the decisions. Age cannot be the decisive factor.

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    Q: What must I prove to win an age discrimination claim?

    A: An employee must show that he or she was discriminated against because of age, namely being over the age of 40. An employee must also show, via evidence, a capability and qualifications to perform the job. And he or she must also prove that he or she is meeting the employer's legitimate work expectations. Proving only part of this will not be sufficient.

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    Q: What types of damages can I recover for age discrimination?

    A: Depending on the facts of the situation, a successful claimant may be awarded money damages. An individual may also be reinstated, promoted, or placed in a new position.

    Punitive damages are available to age discrimination claimants, but not in every case. Punitive damages, by their very nature, are designed to punish. So the injured party must prove that the employer acted with "actual malice". The employee must show that the employer's conduct rose to the level of outrageous, flagrant, or even criminal conduct to support a finding of actual malice. It's a difficult standard to meet, but some employees can meet this standard. It is clearly a fact-specific, case-by-case analysis.

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    Q: I had a bad review and my employer says if I don't shape up I'm going to be fired. But I'm pregnant. Is he allowed to do that?

    A: Unless you have reason to believe that your bad review is in some way tied to your pregnancy, yes, he is. He is not allowed to fire you because you are pregnant but he can fire you in spite of that fact, for other reasons.

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    Q: My employer is a real jerk, and keeps yelling at me for no reason. Is that discrimination?

    A: Only if he is singling you out to be yelled at on the basis of a protected characteristic. If he's yelling at everyone, that's not illegal. Being a jerk is not illegal. The employer must be lawful, but the law doesn't require that an employer be nice.

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    Q: Are temporary employees able to file discrimination claims?

    A: Although state laws may vary on this, at least some of the federal courts have dealt with this issue, holding that your rights under Title VII discrimination laws aren't eliminated simply because your employment is through a temporary employment agency. Temporary help has expanded in recent years and with that expansion the courts have had to deal with the unique problems these employment relationships can present.

    Whether you are an employee of the company for purposes of Title VII is a question of federal law. The courts are required to analyze this type of case under the common law principles of agency. The most important factor the courts will look at is the extent of the employer's right to control the means and manner of the worker's performance.

    Under what's called the "loaned servant doctrine," an employee directed or allowed to perform services for another "special" employer may become that employer's employee while performing those services. In some situations, the employee could actually be considered both an employee of the temporary employment agency AND the company with whom he or she has been placed.

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    Q: What is necessary for a person to prove that he or she has a disability under the Americans With Disabilities Act?

    A: Under the Americans With Disabilities Act ("ADA") you must prove that you're an individual with a disability according to the statute. The ADA law defines disability as:
    • A physical or mental impairment that substantially limits one or more major life activities of the individual
    • Having a record of such impairment, or
    • Being regarded as having such an impairment

    There are other requirements to proving a case of discrimination under the ADA.

    But even if you can successfully prove your case on every other point, if you're unable to show you're disabled according to the ADA's definitions, you won't win your case.

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    Q: What kind of work accommodation must an employer make for a handicapped person?

    A: The Americans with Disabilities Act ("ADA") requires that an employer make reasonable accommodation for an employee who is considered a "qualified individual with a disability". Reasonable accommodation contemplates that an employee is qualified and able to perform the job for which he or she is applying. If not, the employer need not reasonably accommodate.

    The ADA doesn't require an employer to create new jobs, displace existing employees from their positions, or violate other employees' rights under a collective-bargaining agreement or other non-discriminatory policy in order to accommodate an otherwise disabled individual. If an employee isn't otherwise qualified and able to perform satisfactorily in a position, he won't prevail in proving a duty to accommodate.

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    Q: How does "bona fide occupational qualification" apply to discrimination?

    A: There are defenses to discrimination that can be raised by the employer. The employer may be able to demonstrate there was a legitimate business reason for firing the employee or refusing to hire. Another defense or exception is known as a "bona fide occupational qualification" ("BFOQ"). A BFOQ exists when say, for example, age is a relevant factor in job performance. This type of situation may exist for law enforcement people, firemen or potentially stunt workers.

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