Have You Suffered From A Serious Adverse Employment Action?
Getting fired, not hired, demoted, passed over, given poor assignments, not given good assignments, paid less for the same work all these things happen in the workplace. To be the basis for a discrimination suit the employer's actions must be related to the employee's status in a protected class (race or gender for example), the adverse treatment must be substantial and detrimental and "reasonably likely to impair an employee's job performance or prospects for advancement." This means that minor things, while unfair, are generally not enough for suit. If your boss criticizes your work, plays favorites, or has unreasonable demands these factors will not usually support a discrimination lawsuit.
Are You A Member of A Protected Class?
Both federal and state laws prohibit an employer from discriminating against individuals based on: Race, Religion, Color, National Origin, Disability, Marital Status, Gender, Sexual Orientation, Age, and Pregnancy.
Can You Prove The Discrimination?
Direct evidence is the easiest way to show that discrimination occurred. Direct evidence of discrimination includes statements by supervisors, managers or other witnesses that directly go to the heart of the issue. For example, if the boss tells a co-worker that Employee Smith won't be getting the promotion because she is a woman, or Employee Green is being fired because he is gay, then plaintiff has a straight forward case.
Most discrimination cases are circumstantial in which case the likelihood of success can only be determined on a case by case basis after consultation with an attorney. For example a terminated employee might be able to initiate a lawsuit alleging discrimination if he or she can show 1) membership in a protected class 2) that the employee was qualified for the position 3) the employer took an adverse action against the employee by firing him or her, and 4) the employee was replaced by a person who is not in the protected class.
In A Circumstantial Case Your Employer May Try To Show That Its Actions Were Not Discriminatory
An employer has the opportunity to offer a legitimate, non-discriminatory reason for its actions. The employee must then show the proffered reasons are a pretext; just a cover for unlawful discrimination. This is difficult. Sometimes the plaintiff can show that the legitimate reasons offered by the employer are factually defective. For example the employer states that the employee was constantly late but time sheets show that the employee was punctual. The law requires plaintiff to show not only that the stated reason is false but also that adverse action was due at least in part to discrimination.
The Law Does Not Have A Remedy For Every Wrong
When employees are treated poorly they react emotionally, but discrimination cases can be very hard to win. The plaintiff has the burden of proof to show that plaintiff was a member of a protected class, the adverse employment action occurred as a result of plaintiff being a member of the class. The adverse employment action was serious and there was no legitimate, non-discriminatory explanation for the employer's behavior.
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