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Employment Discrimination FAQ

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Q:

What must I prove in an employment discrimination case to win?

  • A: In order to prevail, you should show that:

    • You're a member of a protected class, such as age, gender, minority or disability.</li>
    • You were qualified to perform the job.
    • You were discharged by your employer.
    • You were replaced by someone outside the protected class.
    • The employer's reason for discharging you was false and merely a cover for the real reason of discrimination.

Q:

What's a "protected characteristic?"

  • A: A characteristic is protected if you can't be legally fired, laid off or not hired based on that characteristic. Protected characteristics include:

    • Age - 40 and older
    • Race
    • National origin
    • Sex
    • Religion
    • Disability
    • Pregnancy
    • Sexual orientation in some states

Q:

What kind of work accommodation must an employer make for an employee with a disability?

  • The Americans with Disabilities Act (ADA) requires that an employer make a reasonable accommodation for an employee who's considered a "qualified individual with a disability." The employee must be qualified and able to perform the job for which he's applying. If not, the employer doesn't need to provide reasonable accommodations.

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

Q:

What's necessary for me to prove that I have a disability under the Americans With Disabilities Act (ADA)?

  • Under the ADA, you must prove that you're an individual with a disability according to the law. 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. Whether you're a "qualified individual" and a victim of illegal discrimination based on your disability are two examples. However, you won't win your case if you're unable to prove you're disabled according to the ADA's definitions.

    The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) made important changes to the ADA. These amendments went into effect on January 1, 2009. The changes make it easier to prove you're disabled. The amended law stresses that "disability" has a broad meaning.

Q:

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

  • There are defenses to discrimination that can be raised by the employer. One defense or exception is known as a bona fide occupational qualification (BFOQ). A BFOQ exists when a specific characteristic is necessary for the performance of the job. For example, age may be a relevant factor in job performance for police officers, firefighters or stunt workers.

Q: Are temporary employees able to file discrimination claims?

  • Although state laws may vary, some federal courts have dealt with this issue. These courts have decided that your rights under Title VII discrimination laws aren't eliminated simply because you're employed through a temporary employment agency.

    Whether you're an employee of the company for purposes of Title VII is a question of federal law. The most important factor is the extent of the employer's right to control the means and manner of the worker's performance.

    Under the loaned servant doctrine, an employee directed or allowed to perform services for another "special" employer may become its 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 the person has been placed with.

Q:

I had a bad review, and my employer says I'm going to be fired if I don't shape up. However, I'm pregnant. Am I protected from being fired by my employer?

  • Your employer may not fire you based on the fact you're pregnant. However, you can be fired for other reasons. Being pregnanct won't protect you from bad reviews not related to your pregnancy.

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. However, there are exceptions. Courts use a two-step process to evaluate a claim of religious discrimination:

    • An employee bears the initial burden of demonstrating a "prima facie" case of religious discrimination. He meets this burden if he can show that: (1) He holds a sincere and genuine religious belief that conflicts with an employment requirement. (2) He's informed his employer of the conflict. (3) He's discharged for failing to comply with that conflicting employment requirement.
    • Once the employee establishes his case, the burden then shifts to the employer to show that it couldn't reasonably accommodate the employee without undue hardship. The reasonableness of an accommodation is determined on a case-by-case basis.

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

  • No, this isn't an example of employment discrimination. However, you have the right to ask your employer to make her stop if she tries to push her beliefs on you.

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

  • It isn't discrimination as long as your employer treats all the employees the same in this situation. It's discrimination if employees of certain religions don't have to use vacation time for religious holidays that don't fall on the company's scheduled holidays.

Q:

My employer is a real jerk and yells at me for no reason. Is that discrimination?

  • It's only discrimination if he's singling you out on the basis of a protected characteristic. If he's yelling at everyone, his conduct isn't illegal. Your employer must be lawful, but the law doesn't require that an employer be nice.

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

  • An employee must show that he was discriminated against because of age, namely being over the age of 40. An employee must also show he was qualified to perform the job and was meeting the employer's legitimate work expectations. Proving only some of these requirements won't be sufficient to win.

Q:

Does my employer commit discrimination if I get laid off while a younger employee is kept?

  • Your employer may have committed discrimination. If you're 40 or older, you're protected against age discrimination. This means your employer can't lay you off and keep someone younger based on age. However, you can be laid off while a younger employee is retained if he has greater skills. It depends on what factors the employer is using to make the decisions. Age can't be the decisive factor.

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

  • Depending on the facts of the situation, you may be awarded money damages. You may also be reinstated, promoted or placed in a new position.

    Punitive damages are sometimes available in employment discrimination cases. These damages, by their very nature, are designed to punish. You would have to prove that your employer acted with "actual malice." In order to support this finding, you must show that the employer's conduct rose to the level of outrageous, flagrant or even criminal. It's a difficult standard to meet, but some employees can meet this standard. Punitive damages will be considered by the court on a case-by-case basis.