What is Employment Discrimination?
Employment discrimination occurs when a prospective employee is denied a job or treated differently from other employees based on certain characteristics. These include the employee’s race, age, sex, religious beliefs, or having a disability. There are federal and state laws in place that make it illegal for an employer to discriminate against an employee based on these characteristics. If the employer’s decision to deny employment was based on one of those characteristics, a discrimination lawsuit may be appropriate. Doctors and lawyers providing legal representation in employment discrimination cases must know the requirements and rules of evidence in order to be successful .
Discrimination can be considered either disparate treatment or disparate impact. Disparate treatment takes place when a person who is part of a protected class is treated less favorably than those who are not part of that class. Disparate impact is slightly different. This type of discrimination happens when a company has polices that are not discriminatory on their face, but still have a negative impact on a protected class of people. While disparate treatment is difficult to prove and apply to a multi-national corporation, disparate impact may be easier to prove.
Federal law applies to all employees of companies that employ 15 or more employees in the workplace. State laws apply to all businesses with five or more employees.
Basis for a Lawsuit
Trial by fire, kidnap, battery, assault on your person, the sending of offensive messages, the spreading of false information, etc., can all be very personal. Yet, unless you are spotting serious bias, suing a company for not hiring you isn’t as cut and dry as it may seem. With that said, there are legal grounds you must meet before ever even hoping to sue a company for not hiring you.
First, show the bias must be specific. In other words, you have to know the reason or reasons a company didn’t hire you, as well as whether or not your protected class status had anything to do with it. These findings must be subsequently supported with first-hand evidence. Certain statements here or there won’t work. It needs to be official documentation or testimony that proves that your protected class status was the cause of the wrongful hiring practices.
Second, prove that the company employed an overall pattern or practice of discrimination against your status. Essentially, this means you have to prove that the bias wasn’t only against you, but everyone who holds the same protected class status. If the bias is widespread enough, a lawsuit may go through.
Third, prove that a current court order is being violated by the company.
Fourth, prove that the discrimination against your protected class status had a particularly large effect on "the public’s interest."
Fifth, prove that a civil proceeding may be the only way to properly recompense the victim or victims.
What to Do Before Filing a Lawsuit
Before even think about a lawsuit, you probably want to have the odds on your side. Keep this in mind that a lawyer or a company doesn’t want to get sued in a lawsuit. Therefore, it is always best to have proof that you tried to resolve your issue through internal channels.
Document Everything.
It’s imperative that you document every single step of the process. Write down who you spoke to, why you spoke to them, and what happened. Write it down in detail. If your phone company wrongfully disengaged your phone service, take heart. Write down what you said and what the phone company representative said. Write down the date and time you each spoke. With today’s technology, you should be able to download all the calls made to the company through your phone. You want to be as thorough as possible and not leave any stone unturned. All these records will come in handy in a court of law. Your employing company should have records that show when you were hired, the necessary paperwork that was signed, and the date you separated from the company.
Read Company Policies.
Most companies have a handbook or a separate document that describes all the company’s policies and procedures. Familiarize yourself with how your company addresses changes in pay, changes in jobs, and what can classify as "wrongful termination." If you find out that the company’s action is against policy, that also may help your case.
First Address The Grievance Internally.
Once you have given the situation adequate consideration and recorded everything that you can, it’s best to talk to a person higher up. Maybe they will be able to resolve the issue for you and you won’t even need to consider a lawsuit. Often times, many issues arise because of miscommunication. Perhaps you violated a company policy or procedure, but simply weren’t aware of it. As long as the company is aware of the issue, they may be able to resolve it without bringing a lawsuit into play. Even if your company can’t help you, sending the issue up the chain of command will create a record of your grievance, which is extremely important in a lawsuit.
Filing an EEOC Complaint
When an employer fails to hire someone, it is important to determine whether the reason for the failure to hire was unfair or for some other illegal reason. Such an employer could be liable under a variety of statutes, including anti-discrimination laws that prohibit discrimination based on certain protected characteristics. These include age (for employees over 40 years of age), gender, race, national origin, disability, ethnicity, religion, marital status, pregnancy, or genetic information.
Employment agreements frequently include a provision stating that both parties waive their right to sue in certain situations. Or, there may be a company policy stating that you cannot sue them but must take any disputes to arbitration or mediation. Generally, even if you have waived your right to sue, you cannot waive your rights set out by federal or state law, and such waivers are not enforceable.
Before you can file a lawsuit against an employer for failing to hire you because of your protected characteristic, you first have to file a charge with the federal Equal Employment Opportunity Commission (EEOC) or state equivalent agency . The EEOC requires that you file your complaint within 300 days of the discriminatory practice of not hiring. Florida state law provides a much shorter time limit of 365 days in which to file a complaint. A complaint that is filed after these deadlines will be rejected.
The EEOC will then conduct a thorough investigation of the facts in order to determine whether there is "reasonable cause" or evidence to support the unlawful discrimination that you complain of. It will attempt to resolve the complaint by reach a voluntary settlement between employee and employer. If there is no resolution, the EEOC -or state agency -will issue a right‐to‐sue letter. There is no cost to file a complaint, and this step is free! You do not need an attorney to file a complaint.
It’s best to file your EEOC complaint as soon as you learn of the unfair treatment. If you think it will take you a while to get your documents and other information together, file the complaint right away and supplement it with additional information later. Keep track of all the relevant documents that support your claim, and make copies of everything.) In Florida, you must submit a completed intake questionnaire along with your complaint.
Possible Remedies and Relief
If your lawsuit is successful, there are a number of possible outcomes the court may award you. You may receive:
- Compensatory Damages: This can include lost wages in the past, future lost wages if you would have otherwise continued to be employed by the company, compensation for mental and emotional pain and suffering, compensation for loss of reputation, loss of promotional opportunities and loss of experience, and sometimes even punitive damages if the company is found to have acted with malice oftentimes with the company’s bad faith instance of failing to hire a plaintiff or employee who is part of a protected class.
- Policy Change: A judgment may mandate the company to not only correct the discriminatory hiring practice but also add minority applicants to their hiring pool, implement new training programs focused on non discriminatory hiring practices and instituting a mandatory office policy that prohibits discrimination based on protected class membership.
- Reinstatement: There is also the possibility that the court may require the company to rehire you again if you are not found to be responsible for the discriminatory practices at issue.
Obtaining Legal Counsel
The best person to turn to about these issues is an employment lawyer. They can counsel you on key legal principles, the potential costs of pursuing a claim, and any ethical considerations that might surround a particular situation.
Understand, though, that litigation is expensive. It is generally not worth it from a financial perspective to sue for the damages you would suffer if you were not hired for a particular job. We could be missing some important context in our review of your circumstances and it may very well be possible that the reason that you were not hired was purely legal and had nothing to do with actual undue discrimination or retaliation by a prospective employer. Should you find yourself interested in pursuing a lawsuit anyways, an employment lawyer can give you advice about the likely range of possible legal fees. At least to a degree , an employment lawyer can predict the maximum amount of money you would have to come out of pocket. It may be that coming up with that money is not enough to follow through with the case, or that it is not even close to sufficient. In other cases, your attorney will be able to warn you away from hiring an attorney who has overpromised, or who has misled you about the costs of litigation.
If you find a lawyer who you trust to give you accurate information about the process and the money, then you would be able to make your decision based on whether you are confident in your claim and whether you have the money to prosecute it. In other circumstances, you might agree to a contingency agreement with the lawyer, where she takes XX% of the recovery or damages.