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Workplace Discrimination is ILLEGAL
When people think of discrimination, they often think of someone being subjected to something overt, like hate symbols, slurs, and hate crimes. These incidents happen far more often than they should, in fact, they shouldn't happen at all. That being said, the most common forms of discrimination in the workplace can be far more subtle than this. There are things co-workers, employers, managers, and others may do to you that you may not notice or realize is workplace discrimination.
Even if you think you don't have this issue, or that your co-workers or employers would never do this, understand that workplace discrimination doesn't have to be intentional. Someone may not even realize they're being discriminatory as they're doing it. That doesn't mean they shouldn't be held accountable and you should suffer in silence.
Unlawful discrimination occurs when an employee suffers an adverse action, such as a termination, because of their association with a protected class. Adverse actions also can include the failure to hire, denied promotions, demotions, disparate treatment or the creation of a hostile work environment.
Workplace discrimination is prohibited by a variety of Federal and State laws. Protected categories include, but are not limited to:
- Sexual Orientation
- National Origin
- Military Service
- Bankruptcy Status
Discrimination laws also provide protections for employees making complaints about discrimination. If you are terminated or demoted for filing a complaint, you may have an additional claim for retaliation.
Damages in employment cases primarily are tied to lost wages, whether back or front pay. However, in some cases, Employees may be entitled to additional compensatory dames, punitive damages and attorney fees.
If you believe that you have been a victim of discrimination or retaliation, you should consult immediately with an experience employment attorney in your area.
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Submit the details of your claim HERE to have actual (former) EEOC Federal Investigators review the merits of your case. Many claims require the timely filing of an initial administrative complaint before you can proceed with civil litigation so you should not delay in obtaining legal representation (on your own or via FileWorks) to submit your claim.
Know the Laws Pertaining to Your Claim
Fair employment practices law: It is an unlawful employment practice for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age (40 or over), veteran status, or national origin. Discrimination on the basis of race includes discrimination on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles.
Specifically, it is unlawful for employers to fail or refuse to hire, discharge, or otherwise discriminate in compensation, terms, conditions, or privileges of employment. It is also unlawful for employers to limit, segregate, or classify employees or applicants in any way that would deprive or tend to deprive them of employment opportunities, or otherwise adversely effect their status as an employee. It is unlawful for an employer to discriminate in apprenticeships or training programs.
In selecting or referring applicants or employees for employment or promotion, it is unlawful for employers to adjust scores, use different cutoff scores, or otherwise alter the results of employment-related tests on the basis of a protected class. It is also unlawful for employers to use a protected class as a motivating factor in any employment practice, even though other factors also motivate the practice, except where permitted by the fair employment practices law.
It is unlawful for an employer to print or publish any notice or advertisement relating to employment that indicates preference, limitation, specification, or discrimination on the basis of protected classes, except when based on a bona fide occupational qualification.
It is unlawful for employers with five or more employees discharge employees based on race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, pregnancy, or childbirth or related medical conditions including lactation.
It is unlawful for employers with more than five but fewer than 20 employees to discharge employees based age (Discharge means actual or constructive termination or separation from employment).
PLEASE READ CAREFULLY: It is not unlawful for employers to
- hire employees on the basis of religion, sex, or age, when religion, sex, or age if it is a bona fide occupational qualification reasonably related to the employer's normal operation;
- apply different standards of compensation or different terms, conditions, or privileges or employment pursuant to a bona fide seniority or merit system that measure earnings by quantity or quality of production, or to employees who work in different locations, as long as such differences aren't the result of an intention to discriminate based on a protected class;
- give and act on the results of a professionally developed ability test, as long as the test, the administration of the test, or the action upon the results is not designed, intended, or used to discriminate based on a protected class;
- provide reasonable accommodations related to an employee's pregnancy, childbirth, or related medical condition, and lactation, when the employee requests such accommodations;
- or condition employment or premises access based on citizenship when the employer is subject to a requirement imposed pursuant to a national security program administered under federal law or regulation.
Federal law (all states)
Generally, these federal laws apply only to employers with 15 or more employees, but your state might have better laws that cover smaller employers.
Many states have laws against discrimination that provide stronger protections and cover more workers and employers. In California, the Fair Employment and Housing Act (FEHA) applies to employers of five or more employees, not just to those with 15 or more. And like with Title VII, it makes it illegal to discriminate against someone not only based on sex, but also based on gender, gender identity, gender expression, or sexual orientation, among other things.
Know Your Rights?
You have the right to:
- Work in a safe, discrimination-free environment. Your employer is required by law to provide a safe working environment that is not "hostile" to you based on your sex, gender identity, or sexual orientation.
- Talk about or speak out against gender discrimination at work, whether it's happening to you or to someone else. You can talk about discrimination that's happening at work with whoever you want, including your coworkers and your supervisor. You also have the right to tell your employer that you believe a company policy, practice, or manager is discriminatory or engaging in discrimination. It is illegal for your employer to retaliate against or punish you for talking with coworkers about discrimination. Retaliation includes being fired, demoted, cutting your pay, switching your shifts or duties, or any other action that has a negative effect on you. If your employer retaliates, you could consider taking legal action.
- Report the discriminatory behavior or policy to HR or your boss. Report to HR, your boss, or someone else at your company who has power. We highly recommend submitting the complaint or report in writing (by e-mail or letter) and making copies so you have proof later if you need it.
- File a grievance. If you are a member of a union, your contract (known as the "collective bargaining agreement" or CBA) generally covers the "terms and conditions" of work. If you believe you're being treated unfairly or your employer isn't following the contract, talk to your union rep about filing a grievance.
- Picket or protest against discrimination. When you get together with one or more of your co-workers to raise concerns about your pay or working conditions, you're engaging in what's "concerted activity," which is legally protected by the National Labor Relations Act.
- Make a copy of your personnel file. You can request to see your personnel file, which could contain performance evaluations, your employment and pay history, and other useful information that could be used as evidence if you decide to take legal action. Your HR department or union representative should have information about how to get your personnel file for review.
- File a complaint or charge of discrimination. File your to a government agency, such as the Equal Employment Opportunity Commission (EEOC), or your state's Fair Employment Practices Agency - for example, in California, the Department of Fair Employment and Housing (DFEH). You also have the right to tell your employer that you plan to file a charge, and they cannot retaliate against you for doing so.
Note: There are strict deadlines when filing charges with government agencies, called "statutes of limitations." The deadline to file one with the EEOC is either 180 or 300 days from the "last act" of discrimination, depending on which state you're in.
- Sue / file a lawsuit against your employer for discrimination.
Note: This is only an option if you already filed a charge with the EEOC or your state's FEPA (see #7 above), and they gave you a "Right-to-Sue" Notice. Be aware that there are strict deadlines about how many days you have after you receive that Notice to file a lawsuit in court. For more information on when you can sue, visit the EEOC's website.
- Testify as a witness or participate in an investigation by the EEOC or other government agency. Your employer can't keep you from providing evidence, testifying at a hearing, or communicating with a government agency that is looking into discrimination at your workplace. Even if the investigation eventually finds that there was no discrimination, your participation is still a protected right, meaning your employer can't retaliate against you for cooperating.
If you are fired or retaliated against/punished for doing any of the above, it is illegal, and you could take legal action against your employer or former employer. Retaliation includes being demoted, cutting your pay, switching your shifts or duties, or any other action that has a negative effect on you.
What Can I Do?
If you or someone you know is experiencing or experienced discrimination at work, here are some actions you can take. Note: It is normal to be worried about reporting discrimination or taking other action to make the discrimination stop. Do what is right for you. These are just examples of options you could consider.
1. Review your employers' policies. Most employers give you an Employment Manual or Handbook when you start. Review this to find out what policies might be in place to protect you. Look for policies about discrimination. Find out what your company's complaint procedure is, and pay close attention to deadlines. If there is no information about how to report or complain about discrimination, see if there is a phone number for HR (Human Resources).
2. Write everything down.
Write down in detail what happened and when it occurred, including anything you said or did, and any witnesses or people that may have been involved in the decisions, policies, or incidents. Include every example of discrimination you can remember. As new things happen, write them down to avoid forgetting details.
Keep notes about conversations or meetings you had related to the discrimination, including with HR, your supervisor, or the person making the discriminatory decisions or comments. Record the time, date, and place of the meeting, and who was there. If you're comfortable doing so, ask any witnesses to write down what they heard or saw. Keep these written accounts at home, on a personal email account, or in another safe place not related to your work.
Tip: Others may read these written records at some point if you pursue legal action, so try to stay as objective as possible when writing down what happened. If there are any relevant emails or messages, save and gather them in one place, at home, on a personal email account, or in another safe place not related to your work. Save all emails and messages you send to the person doing the discriminating, and those that you send to others about the discrimination. Keep copies of any complaints you filed with your company, and any responses. Keep copies of any other documents related to the discrimination, and any responses. If you think your employer has retaliated against you, keep written notes of every action that has happened, when, where, and any witnesses.
3. Report concerns or complaints about discrimination to Human Resources (HR) or your boss.
This is also known as filing an internal complaint. We understand it's not always possible to feel safe or comfortable at work after talking to your supervisor or coworkers about discrimination you're experiencing. But we recommend reporting to someone at work who is in a position of authority to either stop the discriminatory behavior or change the practice that is affecting you.
We recommend putting your complaint or concerns in writing, whether it's by email or letter. Be sure to keep copies of what you write - and any written responses you get back from your employer - in a safe place outside of work, at home or on a personal email account. If you report verbally (in person or on the phone), we recommend taking notes about the conversation and then sending a follow-up email or letter confirming what happened during the conversation.
Note: Filing a complaint internally does not extend the deadline for filing a legal action if you decide to do so later.
Dear [name of Supervisor or Human Resources Staff],
I'm writing to confirm that we met today, [today's date], to discuss how I believe that I am being treated unfairly and believe that I'm experiencing discrimination at work because of [the way you're being treated or an employer policy that's negatively affecting you].
As we discussed, the [unfair treatment/ discriminatory behavior] has included [description of what's been happening], and that it began / has been affecting me since [date of initial incident].
You told me [description of employer's response, including any promises or commitments made].
Thank you for taking the time to meet with me about this issue.
4. Go to your union.
If you have a union, you could talk to your union rep and ask about the grievance process under your collective bargaining agreement. If that agreement covers discrimination issues, you may be able to get the problem addressed that way.
Important: Even if you file a grievance through your union about discrimination, you still must file a complaint with a government agency before you file a lawsuit in federal or state court (see item 6 for more about deadlines)
5. File a discrimination complaint with a government agency. If you think you may eventually want to file a lawsuit in federal or state court, you must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC), or with your state's fair employment agency.
6. Pay attention to deadlines.
In every state, you have to file a complaint with either the EEOC or a state administrative agency that enforces anti-discrimination laws (often called a "Fair Employment Practices Agency" or FEPA) and get a Right to Sue notice before you file a lawsuit in court.
The deadlines for filing a discrimination complaint under certain stipulations/categories depend on which state you're in.
In states that don't have a FEPA, you only have 180 days - less than 6 months - from the last act of discrimination to file a complaint (called a "charge") of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).
In states that do have their own FEPA, you have 300 days from the last act of discrimination to file a charge of discrimination with the EEOC. If you're in one of these states, you may have more time to file a discrimination complaint with your state FEPA. To find out whether you have a FEPA in your state, go to the website of the EEOC field office nearest you or speak with your legal representation.
Remember: You cannot bring a lawsuit against your employer unless you have first filed a complaint of discrimination with the EEOC or your state fair employment agency. Internal complaints that you make to your employer or with your union also do not extend the deadlines to file with a government agency.
7. Talk to a lawyer. If you'd like to speak to a legal advocate about your rights and options, legal representatives in the FileWorks Partner Network may be able to help.
What Can/Should I Expect?
If you take legal action, there are different kinds of remedies you can ask for. Some have to do with money, and others are more about changing your employer's behavior. Not everyone can get all of these things. Each case is different, but these are some common examples of things you can demand, and may be able to get if you win your lawsuit or reach a settlement agreement.
Compensation for lost wages and other economic losses if the discrimination resulted in a loss of work or income (i.e., you had to take a leave of absence, lost hours, were fired and had no income for a while, or lost your job and have not found one that pays you as much.) You could also seek compensation for expenses related to any medical or health treatment you needed or will need in the future because of discrimination or retaliation.
Compensation for emotional distress, which could include anguish, stress, anxiety, pain and suffering, loss of sleep, damage to your reputation, and loss of enjoyment of life resulting from discrimination.
Reinstatement: If you were fired or forced out because of the discrimination or retaliation, you could potentially get your job back.
Punitive damages: If you sue in court and show that the employer acted with malice or showed "reckless indifference" to your rights, you may be able to get the court or a jury to order that the employer pay punitive damages, which are meant to punish especially bad employers and send a warning message to other employers.
Make your employer change their policies or practices. You may be able to get the court to order, or get your employer to agree to change the way it does things in the future to help make the workplace safe and fair for everyone, and to help ensure that others do not suffer the same thing you went through.