Labor and Employment

Employer Job Discrimination FAQs

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Q: Can an employee be terminated under any circumstances if she is pregnant?

  • A:Sure. But an employer is playing with fire, unless there are clearly grounds for terminating the employee for reasons that are in no way tied to her pregnancy. The basis for the termination should be real, well documented and in keeping with the employer's personnel policies and procedures. The employer must treat similarly-situated employees the same. In short, an employer may be put in the position of having to prove that the same action would have been taken with any employee, regardless of the pregnancy. One example where this might have to be done for reasons unrelated to the employee's job performance would be an across-the-board reduction in the employer's work force.

Q: Can an employee sue my company for discrimination and recover damages because one of my managers got made and yelled at him?

  • A:Not necessarily. While a company can be held liable under the right circumstances for actions of managers toward employees, simply yelling may not be discriminatory. If he's yelling at everyone, that's not necessarily illegal. Being a jerk is not illegal. It may be a different story, though, if the manager was singling out the employee, and yelled at him on the basis of a protected characteristic.

    An employer must be lawful, but the law doesn't require that an employer be nice. It may be sexual harassment or discrimination, though, if a male supervisor takes a harder stance with female employees than he does with male employees.

Q: Can an employer fire someone because of religious beliefs?

  • A:Employees are generally protected from discrimination in the workplace because of sincerely-held religious beliefs. 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
    • The belief conflicts with a requirement of employment
    • He has informed his employer of the conflict, and
    • 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 couldn't reasonably accommodate the employee without undue hardship in conducting business. The reasonableness of an accommodation is determined on a case-by-case basis.

    This doesn't mean that an employee has the right to try to push his or her beliefs on other employees in the workplace. If this happens, an employer would generally have the right to ask the employee to stop, and to take appropriate disciplinary action if the behavior doesn't stop.

Q: Can an employer require an employee to take vacation time for a religious holiday?

  • A:No, as long as the employer treats employees of all religions equally when it comes to taking days off that are on the list of the company's scheduled holidays. Employers generally have some leeway as to which vacations they provide to employees. An employer doesn't have to give employees any vacations, as long as the employees are being paid properly for the time worked. (But who would want to work for an employer if they never got a vacation?)

Q: Is it discrimination for an employer to lay off an older employee in favor of a younger employee?

  • A:Maybe. If an employee is 40 year of age or older, the law protects that employee against illegal age discrimination. This generally means that an employer can't lay off such an employee and keep someone younger BECAUSE he or she is younger. However, an employee over 40 could be laid off while a younger employee is retained if the younger employee has greater skills. It may also be a different case if the younger employee is over 40, as well, or is in another protected category. The bottom line is that it will depend on what factors the employer is using to make the decisions. Age alone may not be the decisive factor.

    To prove an age discrimination case, an employee must show that:

    • He or she was discriminated against because of age (being over 40 year old)
    • The employee has the capability and qualifications to perform the job, and
    • He or she is meeting the employer's legitimate work expectations

Q: What does an employee have to prove to win in an employment discrimination case?

  • A:Generally, an employee would have to prove that:

    • He or she is a member of a protected class such as age (over 40), gender, minority, disability and so forth
    • The employee was qualified for the position or job
    • The employee was discharged because he or she was a member of the protected class
    • He or she was replaced by someone outside the protected class
    • The employer's alleged reason for discharging the employee was false and disguised the real reason of discrimination

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 have 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

    The 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 disability.

    The ADA does not 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 under the ADA. If an employee is not otherwise qualified and able to perform satisfactorily in a position, he will not prevail in proving a duty to accommodate.

Q: What kind of damages can a person get for a claim of age discrimination? Are punitive damages recoverable?

  • 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 aggrieved party must prove that the defendant 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 test to pass, but there are employees who can meet this standard. It's clearly a fact-specific, case-by-case analysis.

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