LATENT DISCRIMINATION.HOW TO FIGHT IT?

Asked about 2 years ago - Saint Augustine, FL

A person applied for 10 similar job positions in large retail store. By education and experience may take any of these positions. Employer did not give any reasons for non selection. It's safe to assume that some people with less experience ,etc have been hired.There is no specific information about the people who were employed.And there are no opportunities to get such information from this store.Applicant is: a man 32 years old, belongs to an national minority.Can a person file a complaint with the EEOC without knowing the real situation, pointing out discrimination based on gender and ethnicity?Is this legal?How to answer the question: Why do you think you have been discriminated against?

Attorney answers (1)

  1. Marilynn Mika Spencer

    Contributor Level 20

    Answered . I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    I'm sure this is a very frustrating situation for you, especially these days when it is so hard to find any work at all.

    Yes, you can file an EEOC claim without knowing the real situation, and you can say you believe you have been discriminated against because you have not been hired even though you are qualified. But don't expect that claim to go very far. There are several parts to a discrimination claim and your facts only address the first (and easiest) parts. Please keep reading.

    Many people misunderstand the meaning of employment discrimination. “Discrimination” does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated.

    The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Under federal law, public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination. There is no federal protection for sexual orientation discrimination, but many states provide this protection.

    Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, and a few more rights protected by statute.

    An employer cannot refuse to hire, refuse to promote, change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.

    There are various ways to enforce these rights, depending on the particular public policy involved. For more information on employment discrimination, please see my Avvo guide on this subject: http://www.avvo.com/legal-guides/ugc/what-is-un....

    The harsh reality is employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. There are some limitations, mostly in the areas of public policy (such as discrimination law), contract law, union-employer labor relations, and constitutional due process. Please look at my Avvo guide to at-will employment which may help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overvie....

    After you take a look at the guide I linked to above, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful. Be prepared to discuss why you believe you should have been selected, given the probability that there were scores of other equally well-qualified applicants (given the economy) or even better-qualified applicants.

    (continued in Comment below)

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your... more

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