While many people have heard of the Lilly Ledbetter Fair Pay Act of 2009, the way in which it has been covered in the media has probably left most with the wrong idea about what the law actually does. From the coverage I’ve seen, the Lilly Ledbetter Fair Pay Act has simultaneously been portrayed as doing both more and less than it actually does. To clarify what the act does, I will bust some of the myths and then explain in simple terms exactly what this law does.
An EEOC mediation is an excellent opportunity to resolve your workplace discrimination claim at a very early stage. Knowing how the mediation process works and what to expect will help you avoid making critical errors which could ruin your chance to settle.
If your lawyer has told you that opposing counsel has scheduled your deposition, you’re probably wondering what you should expect. While I can’t say that your deposition will be a pleasant experience, it probably won’t be as bad as you anticipate. Your lawyer will surely have a meeting with you prior to the deposition to let you know the type of questions you will be asked and the basic ground rules for giving a deposition. Of course, this meeting might be scheduled only a few days before the actual deposition, so this article is to help alleviate your anxiety about the process in the meantime. For those who don’t already know, a deposition is similar to testifying in court — you will be under oath and questioned by opposing counsel — with some important differences.
When people hear the phrase “sexual harassment”, they typically envision a lecherous boss propositioning his attractive secretary for sexual favors. While sexual harassment can certainly take this form, it also includes a host of other activities, many of which have nothing to do with solicitations for sex. The two varieties of sexual harassment prohibited under Title VII are “quid pro quo” harassment and “hostile work environment”. Quid pro quo cases involve making an employee’s acceptance or tolerance of a superior’s sexual advances a condition of employment. Hostile work environment cases involve an employee suffering substantial mistreatment (not necessarily of a sexual nature) due to his or her gender.
The first question on a plaintiff’s mind after the settlement of his or her lawsuit is how long does it take to get the settlement money? There are really two time frames to consider: (1) the time it takes for the defendant to send the settlement check to your lawyer and (2) the time it takes from when your lawyer receives the check until you get your money. Unlike settlements in personal injury cases, in workplace discrimination cases, the first time frame will usually be longer than the second.
It used to be that one of the benefits of working with the same company for an extended period of time was a steady increase in pay over those years. In times of recession, however, this makes it much more likely that older workers will be the first to get downsized, due to them typically earning more than their younger contemporaries. The more money an employee is paid, the larger the savings to the company when he is downsized. Does the practice of terminating older employees due to their higher wages violate the Age Discrimination in Employment Act (ADEA)? In light of the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc., probably not.
Unless you have one of those rare workplace discrimination cases that can be proven through paperwork alone, you will need to rely on the testimony of your co-workers. This is especially true in cases which allege harassment or hostile work environment, in which evidence of specific statements or workplace incidents will often be essential. Unfortunately, co-workers are frequently reluctant participants in these types of cases, as they fear for their own job security should they give testimony which damages the employer. One way to help co-workers do the right thing is for you to attend their depositions.
As a plaintiff’s lawyer, I’m obviously not a huge fan of arbitrary damages caps, most often instituted as part of the “tort reform” movement (and covered extensively in the HBO movie “Hot Coffee”). A recent case of religious discrimination won against AT&T in Missouri may unfortunately demonstrate how arbitrary caps to damage awards rob juries of the only means available to truly punish mega-corporations for willfully violating workplace discrimination laws. In this case, Susann Bashir, a formerly Christian woman who had converted to Islam, won a verdict which included $120,000.00 in back pay and compensatory damages and $6 million dollars in punitive damages due to the hostile work environment she suffered due to her new religious beliefs. That punitive damages award will very likely be reduced to $600,000.00 under a Missouri state law which caps punitive damages at the greater of (1) $500,000.00 or (2) five times the award of compensatory damages. Arbitrary caps on punitive damages, such as the one imposed in Missouri, destroy the entire purpose of punitive damages and allow huge corporations to willfully discriminate with relative impunity.
The BFOQ, or Bona Fide Occupational Requirement, is a defense employers can raise in response to workplace discrimination claims alleging disparate treatment under Title VII, the PDA and the ADEA. An employer can completely avoid liability for these types of claims if it successfully demonstrates that religion, sex, age, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. Note that “race” is not an acceptable basis for a BFOQ, although there is some debate as to whether it may be possible to assert a race-based BFOQ defense in instances where actors must portray characters of a certain racial background.
While the odds of any particular workplace discrimination lawsuit settling will obviously depend on the facts specific to each case, overall trends in these types of cases will not be encouraging to plaintiffs. Any lawyer who has handled more than a few employment discrimination cases knows that it is harder to settle, harder to win at trial, and much harder to obtain an early favorable resolution in these cases than it is for most other civil cases. I have always had this feeling personally, and now, after having done some research, I unfortunately have the statistics to back up that feeling. While the difficulty in obtaining a favorable outcome in discrimination cases can be attributed in part to so many of them being litigated in federal court, there is also a strong psychological reason for why employers are more reluctant to settle these types of cases.
Some cases just sell themselves. They are such obvious winners and are worth so much money that lawyers are dying to get their hands on them. Unfortunately for you, most workplace discrimination cases are not like this. They rarely settle quickly, they involve a lot of work, they often have very short deadlines and they are difficult to evaluate at the outset. To increase your odds of convincing a lawyer to take your case, you need to eliminate or minimize the downsides inherent in these types of cases. Here are some tips for getting a lawyer to take your case.
In Part 1 of this article, we discussed intentional workplace discrimination claims which involved tangible employment action (firing, demotion, etc.) being taken against the employee. In Part 2, we will now discuss claims based solely on harassment. Harassment claims are based on abusive treatment by co-workers and supervisory employees, and are also known as hostile work environment claims. In the case of gender discrimination, they include “quid pro quo” claims — claims that the employer offered preferential treatment (or threatened negative treatment) if the employee did not perform sexual favors or put up with sexually inappropriate behavior.
How a plaintiff goes about proving a workplace discrimination case depends on several factors, including the particular law violated, the nature of the discrimination and the status of the employee(s) who performed the discriminatory act(s). Title VII, the PDA, the ADEA and the ADA allow plaintiffs to bring claims based on disparate impact, meaning that the employer has policy or practice which is neutral toward the protected class on its face, but has a greater statistical impact on a protected class in practice. Because these types of claims involve issues of statistical proof that will go beyond a lay person’s ability to produce or even understand, I’m not going to discuss how one goes about proving these types of claims. Rather, this article will only address issues of proof in disparate treatment cases, meaning cases where the employee is intentionally subjected to adverse employment action or a harassment based on his or her membership in a protected class. This type of claim is available under Title VII, the PDA, Section 1981, the ADEA and the ADA. This article assumes that you have read the article pertaining to the law under which you wish to proceed and that you have confirmed that (1) your employer is subject to that law and (2) you qualify for protection under that law.
To preserve your right to file a workplace discrimination lawsuit under Title VII, the Pregnancy Discrimination Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act, you must file a timely complaint, known as a “charge”, with the EEOC (the Equal Employment Opportunity Commission). You can download a PDF questionnaire form (form fillable) which, when properly completed, will serve as an EEOC complaint here (alternate download link here). Before filling out and filing this form, please read the rest of this article for tips on properly completing the form and submitting it to the correct EEOC office in a timely manner.
Constructive discharge is the legal term for when an employee is compelled to quit due to intolerable working conditions. Constructive discharge is not grounds for a lawsuit in and of itself. Rather, it allows an employee to sue for wrongful termination as part of a lawsuit based on some other employment law, such as a workplace discrimination lawsuit. This is because an employee who has been constructively discharged has really just been terminated, and terminations are not illegal unless they are in violation of some other law — or an employment contract.