Discrimination Lawsuits

It can be really bad news for an employer to get sued by an employee for discrimination. Where there's merit to the employee's claim, you run the risk of getting socked for damages. Possible remedies include:

• Lost back pay
• An order that the employee be reinstated
• An order that the employer stop discriminating

Additional downside risks include:

• Having most of the burden of proof, even though you're the defendant (similar to being guilty until proven innocent)
• No insurance coverage
• Facing the possibility of punitive damages
• Being held liable for the attorneys' fees and costs of the employee
• Being sued for wrongful termination by the employee alleged to be the perpetrator of the discrimination if he or she is fired

Given these possibly horrific concerns, every employer should be very well informed about the discrimination laws and how they may have an impact on the employer's business.

The Basics on Discrimination

Discrimination generally means treatment or consideration based on class or category rather than individual merit. But not all discrimination is illegal. To be illegal, the conduct must fit within a protected category.

Federal law prohibits employment discrimination in the following categories:

• Race
• Color
• National Origin
• Sex
• Pregnancy
• Religion
• Age (40 or older)
• Disability
• Union Activity

Some anti-discrimination employment laws include:

• The Americans With Disabilities Act ("ADA") prohibits employment discrimination against employees with disabilities
• Title VII of the Civil Rights Act prohibits employment discrimination because of race, color, sex, religion or national origin. This statute also prohibits what's called "disparate impact discrimination," when an employer's policy works to the greater disadvantage of minority group members or women than to everyone else. The law applies to public employers, private employers with at least 15 employees, employment agencies, apprenticeship programs and unions.
• The Age Discrimination in Employment Act ("ADEA") prohibits employment discrimination because a worker is age 40 or older.
• The Immigration Reform and Control Act ("IRCA") protects aliens "lawfully admitted for permanent residence" from discrimination because of being an alien
• The National Labor Relations Act ("NLRA") protects employees from discrimination by their employers because they've engaged in union activities

Most state laws protect workers on the same grounds as federal law.

Some state and local laws also protect workers against discrimination for some added reason such as:

• Marital status
• Sexual Orientation or Preference

Making a Claim

An employee may first have to file an anti-discrimination claim with the local office of the Equal Employment Opportunity Commission ("EEOC") or the anti-discrimination agency of the state where the employee works, as soon as possible after the discrimination occurs.

Time limits for filing claims vary by state, but are either 180 or 300 days from the time the discriminatory event occurred.

Union employees may also be able to file a claim of discrimination with the National Labor Relations Board ("NLRB") within six months of discharge because of union activity.

The EEOC can file lawsuits in state courts to enforce the Civil Rights Act, the ADEA and the ADA.

In most instances, due to big overloads with federal and state agencies, the person claiming discrimination will end up bringing a court action in either state or federal court to enforce the law.

Once the EEOC determines there is a right to sue, the employee will normally have only 90 days to start a court action.

Private Lawsuits

Given the damages an employee can recover, lawyers will usually take discrimination cases on a contingency fee basis. As further incentives, punitive damages are available, and lawyers may also be able to recover their fees and costs in addition to damages awarded.

If an employee hires a lawyer, that lawyer is not going to want to walk away from the case without being paid or collecting a fee. So once a claim gets past the EEOC, the legal process starts to snowball and can quickly take on a life of its own. So you shouldn't necessarily wait to receive notices of EEOC claims before doing anything about possible discrimination complaints, which should not come as complete surprises in most instances. Of first importance would be to consult with legal counsel in order to develop a strategy for investigating and responding to the claim in a manner that is most likely to mitigate the employer's potential liability exposure.

Proof of Discrimination

Most discrimination cases require that the employee prove that the employer acted with the intent to discriminate:

• A statement by the boss such as, "I'm refusing to promote you because you're a woman," is one kind of evidence that the employer may have discriminated intentionally because of sex.
• Other evidence, such as proof that a less qualified person won a promotion, can also be used so long as it's sufficient to persuade a jury that the employer acted with intent to discriminate.

The Civil Rights Act and the ADEA allow the employer to counter with the defense that national origin, religion, sex or age is a bona fide occupational qualification ("BFOQ") reasonably necessary to the normal operation of the employer's particular business. This defense doesn't work with race, color or disability discrimination.

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