Discrimination and EEOC FAQs
By Neil Klingshirn
- What is employment discrimination?
- What is unlawful employment discrimination?
- What is a protected class?
- Why are some people protected from discrimination, but not others?
- How do I know if my employer may have discriminated against me?
- What evidence do I need to prove unlawful employment discrimination?
- Who is a similarly situated employee?
- I can prove that I am female and was treated worse than a similarly situated male. Does that mean I will win a discrimination case?
- No one admits that they discriminate. How can I prove my employer’s motivation?
- How do you prove pretext?
- What do I have to show to prove a prima facie case?
- If I prove that the employer’s stated reason is false, or pretext, will I win my case?
- I did my job well for years but then my new manager constantly criticized my performance. Does that mean I am not “qualified”?
- What if my employer does not have a description for my job? How can I prove I am qualified to perform it?
- What are "damages"
- How do courts measure emotional damages?
- Can I recover punitive damages from my discrimination claim?
- Where can I find more information about the laws against race, sex, religion and other discrimination?
- I want to consult an employment attorney about employment discrimination. Do you have any suggestions?
- How can I contact the author of this article?
Discrimination means treating people differently. In most cases, employers may lawfully treat people differently by, for example, paying them different amounts. Unless the differing treatment is motivated by the employee’s inclusion in a protected class (or engaging in protected conduct), it is generally lawful.
Until other classes of people are protected, biases that operate to deny them equal opportunities are not unlawful. For example, an employer could refuse to hire an applicant who was born under the sign of Aquarius without breaking the law. Why? Because astrological sign discrimination is not so prevalent as to require governmental intervention in private employment. In other words, governments have had no reason to pass laws to protect Aquarians from the denial of equal employment opportunities. [Full disclosure: the author of this FAQ is an Aquarian].
True. Unlawful employment discrimination is hard to prove. To prove employment discrimination, you should have some or all of the following evidence:
- Direct, or "smoking gun" evidence, such as:
- disparaging remarks;
- admissions of bias (“women don't belong in law enforcement/should not be on construction sites/are bad at math”);
- disparaging or demeaning jokes or treatment.
- Indirect evidence, such as:
- statistics (an all white, male executive team or a higher than expected proportion of older workers laid off);
- Other cases of similar discrimination; and
- Pretext, which is a false reasons given by the employer to cover up the unlawful reason.
- You are a member of a "protected class";
- You are qualified for your job;
- You were terminated, demoted or otherwise treated worse than someone outside of your protected class; and
- You were damaged by that discrimination (i.e., you lost wages or suffered a compensable injury)
Not necessarily. Pretext is one piece of evidence. The jury can infer that it shows discrimination, or it can infer that shows the employer did not know what it was doing. In addition, pretext is just one piece of evidence. You must prove by the greater weight of all of the evidence that discrimination was a motivating factor in your termination.
If the employer wants to argue that you did not perform your job to its satisfaction, then it can claim poor job performance as a legitimate, non-discrimatoy reason for treating you differently, but not as evidence that you were not qualified to do your job.
You can look at the qualifications of comparable employees. For example, you could compare the resumes of the other people who hold comparable positions. If your employer hired someone outside of the protected class with a tenth grade education, a court will treat a 10th grade education as the employer's actual education requirement for the job.
Obviously, an employer cannot use different qualifications for protected and non-protected class members, such as requiring women but not men to pass a skills test.
Damages describe the compensable injury that you suffer because of discrimination. If you lose your job because of your gender, for example, then you will almost certainly lose wages, benefits and seniority. You are also likely to suffer emotionally from being fired unlawfully.
Federal discrimination laws allow victims of most types of discrimination to recover their lost wages and benefits. Some federal laws and Ohio law permit recovery of damages for emotional pain and suffering, which are known as "compensatory damages." The amount of compensatory damages in federal court is limited by the size of the employer.
Emotional damages do not have a precise monetary measure. They are based on testimony of the victim and medical professionals or acquaintances of the victim, who see changes in the victim’s behavior and mood. Yo can also prove emotional damages by your circumstances, such as having to work demeaning jobs and suffering the humiliation of being out of work.
Like pain and suffering in personal injury cases, compensation for emotional damages is based on what the jury considers is sufficient to compensate the victim for their suffering; no more and no less. As a general rule, the higher the monetary damages, the greater the award for emotional damages.
Punitive damages are awarded to punish an employer for discriminating and to deter it and others from discriminating in the future. Federal courts limit the amount of punitive damages based on the size of the employer. In addition, United States Supreme Court cases suggest that a punitive damage award cannot be greater than nine times the victims damages from lost wages.
Mel has collected Questions and Answers, Wiki articles and Blog articles about discrimination. If you still cannot find the answer to your question, Ask mel and we will send your question to attorneys in your state.
You can schedule a consultation with Neil Klingshirn if you are in Northeast, Central or Southeast Ohio (that is, near Akron, Canton, Cambridge, Cleveland, Columbus, Lorain, Marietta, Youngstown or Wooster Ohio).
If you live live elsewhere, we suggest that you:
- search for a lawyer on My Employment Lawyer;
- search the National Employment Lawyer's Association's (NELA) attorney directory;and
- search the attorney directory of a state affiliate NELA, such as the California Employment Lawyer's Association. To find an affiliate in your state, search for "[State] Employment Lawyer's Association"; or
- consult the general "Bar Association" in your area, which is a trade association of local attorneys. It will probably have an attorney referral service. Ask for attorneys who practice employment law.
Most attorney directories and referral services provide only the attorney's name and contact information. Therefore, you may need to do some more research. As a general rule, the best employment attorneys:
- Write and speak on employment law topics;
- Are recognized by their peers (for example, are listed in Super Lawyers or have "AV" ratings); and
- Are Board Certified in employment law in those states that offer specialty certification.
On mel, you can see who has contributed articles and answers to mel, as well as the quality of that work.
Contact Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist