It is also illegal to discriminate on the basis of sex (whether the person is male or female). According to federal law, “sex” discrimination includes discrimination based on pregnancy. For this reason, it is against the law to fire a pregnant woman because of her pregnancy. [2] X Trustworthy Source US Equal Employment Opportunity Commission U. S. government agency that enforces civil rights in the workplace Go to source “Sexual orientation” discrimination may also be prohibited under “sex. ” For example, it is currently illegal to fire a gay male because he is too “effeminate” or otherwise fails to conform to stereotypical gender expectations. [3] X Research source The law on sexual orientation discrimination is constantly changing. In July 2015, the federal Equal Employment Opportunity Commission (EEOC) decided that discrimination on the basis of sexual orientation qualifies as “sex” discrimination. [4] X Research source However, the federal courts, not the EEOC, must decide whether or not this is a valid interpretation of federal law. If you want to bring a discrimination claim on the basis of sexual orientation, then you should meet with a lawyer to discuss whether federal law will cover your claim. It is also illegal to retaliate against any employee who reports illegal discrimination, regardless of whether any actual discrimination occurred. [5] X Trustworthy Source US Equal Employment Opportunity Commission U. S. government agency that enforces civil rights in the workplace Go to source You can find a more detailed explanation of what constitutes discrimination (based on the various protected classes) by visiting this site.
To find your state or municipal anti-discrimination laws, perform an Internet search. Type “anti-discrimination” and your state or county into your favorite web browser. If you cannot find anything, then visit your local law library, which is typically held at the county courthouse.
firing demotion not being rehired discriminatory pay or benefits discipline failure to reasonably accommodate religion or disability
For example, the federal prohibition on race or sex discrimination covers businesses that have had at least 15 employees working for at least 20 calendar weeks during the past two years. [9] X Trustworthy Source US Equal Employment Opportunity Commission U. S. government agency that enforces civil rights in the workplace Go to source By contrast, the age discrimination provisions apply only if the employer had at least 20 employees in the same time frame. [10] X Trustworthy Source US Equal Employment Opportunity Commission U. S. government agency that enforces civil rights in the workplace Go to source
A lawyer can help you determine which anti-discrimination laws cover your employer. If costs are a concern, then you should ask an employer lawyer if they will represent you on contingency. Under this arrangement, your lawyer will not get paid any fees unless you win your case. (You will still be responsible for the costs of litigation, such as filing fees and court reporter fees). [12] X Research source Generally, employment law attorneys will take 33-40% of any award that you win. Be sure to ask about contingency fee arrangements during your consultation. [13] X Research source You can also try to find a legal aid organization that handles employment or discrimination matters. One organization is The Legal Aid Society Employment Law Center. [14] X Research source To find a local legal aid organization, you can visit the Legal Services Corporation’s website and search by your zip code. For additional tips on finding an employment lawyer, see Find an Employment Lawyer. Try to hire a lawyer with trial experience. Employment discrimination cases are sometimes decided by a journey; so, having an attorney with trial experience will not only benefit you at the trial but may make the employer more likely to settle the case beforehand.
You also should speak to co-workers who differ from you in terms of age, race, gender, or religion. If they were treated differently on the job, then you may have strong evidence of discriminatory intent.
If you were fired, also hang onto a copy of your termination notice. [15] X Research source
You should also summarize any relevant face-to-face conversations. As soon as possible, sit down and write down your memories of the conversation, paying particular attention to any language you think illustrates bias. It also helps to document incidents of discrimination in a journal as soon as they occur. Date each entry, include as much detail as possible, and mention what occurred (and who was present during the incident).
Your employer might not want to share your personnel file with you, even when you ask politely. However, once you file a lawsuit you can subpoena a copy of the file. The subpoena will command your employer to produce it.
Also hold onto documents that discuss the value of fringe benefits that employees receive, such as contributions to retirement accounts, health insurance premiums, or life insurance policies.
You might want to sue before the agency has finished its investigation. If at least 180 days have passed since you filed your charge, then you can request a Right-to-Sue letter by writing to the Director of the office where you filed your charge. If the EEOC issues the notice, then the agency’s investigation will be closed. [19] X Trustworthy Source US Equal Employment Opportunity Commission U. S. government agency that enforces civil rights in the workplace Go to source Once you receive your Right-to-Sue Notice, you have 90 days to file your lawsuit. This deadline can only be extended in limited circumstances.
In any event, you should bring a complaint to the appropriate administrative agency as soon as possible.
A charge filed with one office will be filed automatically with the other office. [21] X Trustworthy Source US Equal Employment Opportunity Commission U. S. government agency that enforces civil rights in the workplace Go to source Accordingly, if you file with your state agency, then the charge will be shared with the EEOC.
your name, address, and telephone number your employer’s name, address, and telephone number the number of employees employed there a short description of the events you believe were discriminatory when the events took place that age discrimination was the motivation for the discriminatory events your signature
Call 800-884-1684 (or 800-884-1684 if deaf or hard of hearing). Print out and mail an Inquiry form to a DFEH office. Complete the Inquiry form and email it to contact. center@dfeh. ca. gov.
Some courts have printed “fill in the blank” complaints. To find a sample complaint, you can search the web.
Requests for Production. You can request a copy of any document from your employer that is relevant to the case. In a discrimination case, you should seek your personnel file, job contract, and communications made by supervisors about you. Interrogatories. With interrogatories, you serve written questions on your employer. Your employer must answer the questions under oath. Depositions. In a deposition, your lawyer will ask questions of a witness face-to-face. The parties usually meet in a lawyer’s office, and the questions and answers are recorded by a court reporter. The person deposed answers questions under oath. If the witness cannot attend trial, then sometimes the testimony can be read at trial.
Remember, your employer will likely defend itself by claiming that you were a poor employee who needed to be fired for non-discriminatory reasons. Accordingly, you should be prepared for embarrassing information to be revealed about you at any point in the lawsuit (including at trial). During your deposition, refrain from volunteering too much information. Also make sure that you understand the questions before answering. You don’t want to answer a question that hasn’t been asked. Also never guess for an answer. Instead say, “I don’t remember” or “I don’t know,” if you do not remember information. [25] X Research source
Your attorney will try to defend against the motion for summary judgment by pointing out what material facts are in dispute. In a discrimination case, your employer’s motivation or state of mind is often the central fact in dispute. Whether or not a boss was motivated by bias is usually a question for the jury. As a plaintiff you, too, can ask for summary judgment. However, as a practical matter, plaintiffs rarely win a discrimination case on summary judgment.
In negotiation, you and your employer will try to come to an agreement to settle the dispute between yourselves. You should have a lawyer if you intend to participate in negotiation. An experienced negotiator can effectively bargain for a larger settlement than your employer’s initial offer. Mediation is similar to negotiation, except in mediation the parties meet with a neutral third party (the mediator) who helps guide the parties to a mutually-agreeable resolution. Either party may walk away from mediation as it is voluntary. [27] X Research source Arbitration is like a trial, except you and your employer will argue the case before a private party (the arbitrator) instead of a judge. You and your employer will both have to agree to the selection of the arbitrator. Employers often like arbitration because the proceedings can be kept private, unlike in a lawsuit. Arbitration is also less expensive than a trial. [28] X Research source However, arbitration is binding, and you may give up your right to appeal by agreeing to arbitration. Accordingly, you should discuss this option carefully with your lawyer before agreeing to participate.
In discrimination cases, a plaintiff’s attorney will often try to feel out jurors’ opinions on whether cases should be resolved out of court and whether they think employees bring lawsuits just for money. Furthermore, your attorney should try to find out whether prospective jurors have had personal experience of discrimination or harassment, and whether they have brought lawsuits themselves. If jurors admit to bias, then your lawyer will be able to strike prospective jurors for cause. Your lawyer will also have a number of peremptory challenges, which can be exercised without giving a reason.
Opening statements also should cover “bad facts. ” A bad fact is something that your employer will raise to the jury. For example, the fact that you were reprimanded for failing to perform a work assignment is a bad fact, as it supports a claim that you were fired for being a bad employee. By raising the bad fact before the defense can, your attorney can take the sting out of it.
Dress conservatively. Jurors will judge your credibility in part based on how you look. Look at the attorney asking you questions. When you answer, turn to the jury and look them in the eyes. Always speak clearly. Don’t answer questions with gestures, like nods. Do not answer a question if a lawyer objects to it. Instead, wait for the judge to rule on the objection and then answer. Listen carefully. As with your deposition, you should answer only the question asked and never guess at an answer. Always answer questions truthfully, even if the truth is embarrassing.
You should be prepared to hear negative testimony about your work habits specifically and about your personality generally. Some plaintiffs are surprised when co-workers testify that they think the plaintiff was a terrible employee or mistaken when interpreting certain acts as discriminatory. [31] X Research source
Your lawyer will want to start and end strong. Research shows that jurors pay attention to the first and last argument made in a closing argument. Jurors also do not have strong attention spans, so the closing argument should be as brief as possible.
