Discrimination

How Do I Know if I Am the Victim of Unlawful Employment Discrimination?

Discrimination and its close cousin, harassment, can take several different forms in the workplace. Federal and state laws prohibit discrimination and harassment against individuals based on race, color, creed, national origin, sex (gender), religion, disability (handicap), pregnancy, and age.

Discrimination in the work setting first requires that the court or administrative agency find the alleged victim qualifies to bring a discrimination action because he or she is a member of the class of employees intended to be protected by anti-discrimination law, that he or she was qualified to hold the position held or for which he or she applied, and that he or she suffered some adverse job action supposedly based on one of the categories of discrimination prohibited by law.

The burden of proof shifts to the employer to show that the employee does not qualify to bring a discrimination action, or that the alleged act of discrimination did not occur or did not have a discriminatory effect, or that there was a legitimate non-discriminatory reason for taking the adverse job action against the employee.

At this point, the burden of proof shifts back to the employee, who must present evidence to show:

• An overt act of discrimination took place based on direct or indirect (circumstantial) evidence of that act, or that a “pattern” or “practice” of condoning similar acts of discrimination in the past had evolved over time

• The reason for the adverse job action that was identified by the employer either was not supported by the evidence or is a “pretext” (or ruse, excuse, or cover-up) for the fact that unlawful employment discrimination was allowed or took place

You should engage the services of an experienced employee rights attorney to help guide you through the investigation of your situation to determine if you have been victimized by unlawful employment discrimination or harassment.

If you are dissatisfied with conditions at work and your efforts to get your employer to take you seriously should fail, the next step would be either to hire an experienced employment attorney to help you to investigate your claim or to file a charge of discrimination with either the Equal Employment Opportunity Commission (EEOC), the Ohio Civil Rights Commission (OCRC), or both. Before going straight to the EEOC or OCRC, there are at least three considerations you should give to your circumstances.

You should know neither the EEOC nor the OCRC would represent you the same way a private lawyer would. These agencies represent the government, not the individual claimant. So, while each agency is equipped to investigate your claim and determine whether there is “probable cause” for believing that you were victimized by an act of employment discrimination, there is no assurance the agency ultimately will take on your case. The number of people who file charges weekly overwhelms these agencies. Their resources are stretched to the limits of their budgets as they deal not only with employment discrimination cases but also other forms of discrimination, such as housing and public accommodation discrimination.

As a result, while they are obligated by law to accept every charge of discrimination that is presented to them, the EEOC and OCRC try to sift through the cases and tackle only the ones: presenting the most outrageous acts of wrongdoing, offering the best chance for making an example of an employer, giving the agency a chance to test an area of the law not yet fully developed through legislative, regulatory, or judicial action, letting the agency follow up with an employer already under closer scrutiny because it is operating under a consent decree, or some other order requiring it to refrain from illegal discrimination based on prior instances of unlawful conduct.

Consequently, the EEOC and OCRC frequently close cases for administrative convenience or after the case becomes too old for it to continue on the agency’s docket under regulatory guidelines designed to move cases along to a decision.

The second consideration is that the remedies (i.e., what you can get out of the proceedings) are limited in cases brought before the EEOC or OCRC. Generally, each agency can get you your job back with back pay.

While this might work for many people, you should be aware that you might be entitled to much more than that if you were to sue your employer in court and win. While the EEOC and OCRC are limited to ordering reinstatement with back pay, an experienced employee rights lawyer can help you recover a money award for damages caused by pain and suffering, emotional distress, mental anguish, embarrassment, humiliation, inconvenience, job-hunting expenses incurred in finding a new job, certain consequential losses sustained because of having to dip into your savings or retirement plans, the value of any lost employee benefits and pension rights, restoration of your vacation pay, medical leave entitlements, holiday pay, and other losses.

While your recovery for some of the non-economic losses is limited under federal law, state law in Ohio provides no limit for the amount you can recover for non-economic losses.

The last consideration is that if you file your charge of discrimination with the OCRC, state law prevents you from making a claim in court over the same issues once the OCRC has decided your case.

For this reason, if an individual cannot afford to hire a private employee rights lawyer to handle his or her case, I generally recommend that the individual look into filing a charge of discrimination with the EEOC only and specify on the EEOC’s form that no charge is being filed with the OCRC. The EEOC’s form assumes the charging party will want to “dual file” with both agencies for “administrative convenience.”

So, if you want to preserve your rights to the fullest extent possible under the law, you should consider telling the EEOC that you do not want your case to be “dual filed,” but rather you want it to be filed only with the EEOC.

If you find yourself having to use the services of the EEOC and/or OCRC because you could not afford an attorney, you should seek the assistance of an experienced employment lawyer if the agency should find in your favor after completing its investigation, but before it puts any more time into trying to resolve the matter by post-investigation conciliation efforts or more formal actions before an administrative law judge or in court. You may be giving up significant rights, and an experienced employee rights attorney can help you to evaluate your options and make the right decision for your career and the benefit of your family.

If you are in Northeast Ohio and have already gone through the investigation process and would like to have an employee rights attorney help you with understanding your options and map out a strategy best suited to your circumstances in light of the agency’s “probable cause” finding, contact us today to schedule an appointment at a time convenient to your schedule.