Discrimination and EEOC FAQs

By Neil Klingshirn


What is employment discrimination?

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.

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What is unlawful employment discrimination?

Unlawful employment discrimination is treating an employee in a “protected” class of people worse than similarly situated people outside of the protected class.

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What is a protected class?

A protected class is one identified by law as deserving protection from employment or other forms of discrimination. Protected classes include age, sex, race, creed, religion, national origin, disability and veteran’s status. Some states and cities also cover sexual preference as a protected class.

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Why are some people protected from discrimination, but not others?

Governments pass discrimination laws in response to known, existing biases that prevent a specific class of people from achieving equal employment opportunities. Historically, classes subject to invidious discrimination have been defined along racial, gender, disability, religious and age lines. Discrimination based on race, gender, disability, religion, creed and age is therefore now unlawful.

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].

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How do I know if my employer may have discriminated against me?

Victims of discrimination seem to know intuitively  when their age, race, sex or other protected status stands in the way of an equal opportunity. However, you need more than a gut feeling to prove discrimination. You need evidence.

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What evidence do I need to prove unlawful employment discrimination?

First, you have to prove that your employer treated you worse then a similarly situated  employee who is not in the same protected class.

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Who is a similarly situated employee?

The answer varies by jurisdiction. Some courts require you to prove that the comparable employee is similar in every significant respect, which is difficult if everyone performs different jobs.  Other courts define “similarly situated” in terms of who reports to the same decision-maker. Employees with similar responsibilities who report to the same or higher superior would qualify as similarly situated.

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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?

Not yet. You must also prove that a motivating factor for the differing treatment was your gender. In other words, if your employer treated the male better than you for a legitimate reasons, such as greater seniority, you are not a victim of unlawful discrimination.

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No one admits that they discriminate. How can I prove my employer’s motivation?

True. Unlawful employment discrimination is hard to prove.  To prove employment discrimination, you should have some or all of the following evidence:

  1. Direct, or "smoking gun" evidence, such as:
    1. disparaging remarks;
    2. slurs;
    3. admissions of bias (“women don't belong in law enforcement/should not be on construction sites/are bad at math”);
    4. disparaging or demeaning jokes or treatment.
  2. Indirect evidence, such as:
    1. statistics (an all white, male executive team or a higher than expected proportion of older workers laid off);
    2. Other cases of similar discrimination; and
  3. Pretext, which is a false reasons given by the employer to cover up the unlawful reason.

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How do you prove pretext?

Since motivation is invisible, the U.S. Supreme court adopted a procedure for proving unlawful discrimination, which starts with what lawyers call a “prima facie” case.  If you prove a prima facie case, you will win your discrimination suit, unless your employer states a legitimate, non-discriminatory reason for its decision.  If you prove that the stated reason is not the real reason or was not a sufficient reason to motivate the decision, you have proven pretext.

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What do I have to show to prove a prima facie case?

A prima facie case requires proof that:
  1. You are a member of a "protected class";
  2. You are qualified for your job;
  3. You were terminated, demoted or otherwise treated worse than someone outside of your protected class; and
  4. You were damaged by that discrimination (i.e., you lost wages or suffered a compensable injury)

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If I prove that the employer’s stated reason is false, or pretext, will I win my case?

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.

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I did my job well for years but then my new manager constantly criticized my performance. Does that mean I am not “qualified”?

For the prima facie case, whether you were qualified depends on your qualifications compared to the job duties, rather than your performance. That is, if the job requires a bachelor’s degree and five years of experience, then you are qualified for the job if you have a bachelor’s degree and five years of experience.  

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.

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What if my employer does not have a description for my job? How can I prove I am qualified to perform it?

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.

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What are "damages"

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.

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How do courts measure emotional damages?

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.

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Can I recover punitive damages from my discrimination claim?

Federal law and Ohio law allow you to recover punitive damages, but you must generally prove that your employer consciously violated your right to be free from discrimination.

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.

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Where can I find more information about the laws against race, sex, religion and other discrimination?

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.

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I want to consult an employment attorney about employment discrimination. Do you have any suggestions?

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.

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I want to consult an employment attorney about making sexual harassment stop where I work. Do you have any suggestions?

A good place to start is JustAnswer. The Employment Law Experts on JustAnswer can provide you with the information you need to navigate your employment problem. You can access their advice online, whenever your schedule permits.

If you want a personalized consultation with a lawyer who can take your case, you can schedule a consultation with Neil Klingshirn if you are in Ohio.

If you live live elsewhere, we suggest that you:

When selecting lawyers, the best employment attorneys:

Once you schedule a consultation, expect a good  lawyer to listen to your problem carefully, identify legal options and forecast the costs and returns of legal action.  

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Have an Employment Law question?

Contact Neil Klingshirn

Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist
Independence, OH
Phone: 216-382-2500