Today’s workplace is constantly changing, and the things employers are doing, or are allowing to be done to employees is getting worse and worse.
You need to remember that in most states, including Florida, most employees are what is called “at-will” which means that they can be fired or disciplined for a good reason, a bad reason, even a fake reason, so long as the reason is not based in whole, or in part, on the person’s race, national origin, sex, age, sexual orientation, disability, “serious health condition,” request for medical leave, pregnancy, religion, or for complaining about, or reporting, illegal activities in the workplace.
HEAR THE #1 MOST IMPORTANT THING VICTIMS OF DISCRIMINATION MUST DO
This is important to understand.
If you were not fired or demoted for any of the above reasons, you likely do not have a claim for workplace discrimination unless you have an employment contract that states the only reasons why you can be fired. Most people also don’t realize that most discrimination, harassment, and retaliation laws require that your employer have at least 15 or more employees.
Small Employers With Less Than 15 Employees Generally Are Immune From Discrimination Laws.
It’s Not Fair, But it’s the Law.
CLICK HERE FOR A LIST OF COUNTIES AND CITIES IN FLORIDA, THAT PROTECT EMPLOYEES WHO WORK FOR SMALLER COMPANIES.
CLICK HERE TO READ ABOUT THE 11 THINGS YOU NEED TO KNOW ABOUT YOUR DISCRIMINATION RIGHTS IN THE WORKPLACE.
I. What Are the Laws Prohibiting Job Discrimination?
- Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
- the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
- the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
- Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
- Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
- the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination;
- The Florida Civil Rights Act which prohibits discrimination on the basis of, among other things, race, religion, sexual orientation, gender, age, pregnancy, etc.;
- Florida’s public and private Whistle blower statutes, as well as the Federal Whistle blower statute
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.
It is pretty rare for an employer to come right out and say, I am demoting you because you are a woman, or black, or disabled, etc.
But, believe it or not, there are some employers out there that still are dumb enough to do these things and more so, put them in writing. Of course, these are the easiest discriminatory acts to discover as an employee.
For those slightly more intelligent employers, many of their internal biases are reflected not so much in their words, but in their actions.
While an employer or supervisor may not come right out and say they are discriminating against an employee, they may act out through:
- unfair discipline;
- poor job assignments;
- little or no consideration for a promotion or beneficial transfer;
- failure to provide proper training;
- poor and unwarranted evaluations resulting in little to no pay increase;
- not providing the same or proper benefits that other employees get;
- and even unwarranted terminations.
LISTEN AS I SHARE WHETHER I THINK GAY IS THE NEW BLACK WITH REGARDS ON THE JOB DISCRIMINATION
So, here is what you need to consider to evaluate whether you are being discriminated against: Remember, not all job actions are discriminatory just because you fall within the protected category of people (disabled, pregnant, gay, older than 40, etc.).
You have to compare yourself to someone in your similar job position who is not in your protected category (healthy, not pregnant, straight, younger than 40, etc.) and see whether if they are performing like you are (good or bad), they are being treated better than you.
If there is evidence (other than your own speculation) that this type of discrimination is happening, this is referred to as disparate treatment discrimination and it may be actionable.
Forms of Discrimination Also Include:
- harassment on the basis of, among other things, race, color, religion, sex, national origin, disability, sexual orientation, age, or pregnancy;
- retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory or illegal practices to their employer (try and put these in writing to document your position);
- employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual’s genetic information; and
- denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
A More Detailed Breakdown of the Laws That Protect Employees
HEAR WHY I TAKE DISCRIMINATION AGAINST PREGNANT EMPLOYEES PERSONALLY
Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of, among other things, their national origin, religion, sex, age, race and color.
National Origin Discrimination
- It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
- A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.
- We see a number of cases where Employers tell employees they cannot speak Spanish in the workplace “because this is America.” Totally Illegal. Also, since 9/11, there has been a significant uptick against people from the Middle East who are told they cannot speak their “terrorist language” in the workplace, or are accused of terrorism by co-employees or management without repercussion. Also Totally Illegal.
- An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.
- Many potential clients come to us with complaints that they are Catholic or Christian and their Employer is making them work Sunday against their faith. Unfortunately, this is not considered actionable by most courts.
- To the contrary, employees with other religions that require observation on Saturday or on other days, generally are protected, and may not be forced to work on their observance days, so long as they can legitimately establish a pattern of observing and not working in the past on those days.
Title VII’s broad prohibitions against sex discrimination specifically cover:
- Sexual Harassment – This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The “hostile environment” standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
- Pregnancy Based Discrimination – Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
HEAR ME QUICKLY EXPLAIN THE FIRST STEP IN EVERY WORK DISCRIMINATION CLAIM
Additional rights are available to parents and others under the Family and Medical Leave Act (“FMLA”). CLICK HERE TO LEARN MORE ABOUT EMPLOYEE RIGHTS UNDER THE FMLA.
Equal Pay Act (The “EPA”)
The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.
- Employers may not reduce wages of either sex to equalize pay between men and women;
- A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex; and
- A violation may also occur where a labor union causes the employer to violate the law.
Age Discrimination in Employment Act (The “ADEA”)
In order to qualify for protection under the ADEA, an employee generally must be at least 40 years of age or older. The ADEA prohibits discrimination on the basis of age with regard to:
- statements or specifications in job notices or advertisements of age preference and limitations;
- discrimination on the basis of age by refusing to hire, promote, or give similar job assignments and titles otherwise given to younger employees of the employer; and
- denial of benefits to older employees that are offered to younger employees.
LISTEN IN MY OWN WORDS AS I DISCUSS AGE DISCRIMINATION IN THE WORKPLACE
The Americans with Disabilities Act (The “ADA”)
The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination:
Individuals with a Disability
An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having a disability.
An entity subject to the ADA regards someone as having a disability when it takes an action prohibited by the ADA based on an actual or perceived impairment, except if the impairment is both transitory (lasting or expected to last six months or less) and minor.
Major life activities are basic activities that most people in the general population can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, thinking, and eating. Major life activities also include the operation of a major bodily function, such as functions of the immune system normal cell growth, brain, neurological, and endocrine functions.
An individual with a disability is “qualified” if he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.
Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters.
Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities.
An employer is not required to lower production standards to make an accommodation.
An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids. A person who only meets the “regarded as” definition of disability is not entitled to receive a reasonable accommodation.
An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business.
Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business’ size, financial resources, and the nature and structure of its operation.
Prohibited Inquiries and Examinations
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions.
A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category.
Medical examinations of employees must be job-related and consistent with business necessity.
Drug and Alcohol Use
Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use.
Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA’s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.
The Florida Civil Rights Act (The “FCRA”)
In addition to Title VII and the other federal discrimination statutes, the Florida Civil Rights Act of 1992 prevents workplace discrimination on the basis of race, color, religion, sex, national origin, age, disability and marital status.
Because the damages that are available under Title VII and the FCRA differ somewhat on the caps on damages, we generally file both cases together.
What Employers and Other Entities Are Covered by These Laws?
- As stated above, Title VII, the FCRA, and the ADA cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
- The ADEA covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.
- The EPA covers all employers who are covered by the FLSA (the “overtime laws”) and require 2 or more employees. Virtually all employers are subject to the provisions of this Act.
- The FMLA requires that an employer have 50 or more employees within a 75 mile radius.
What Types of Damages Am I entitled to Under the Discrimination Laws?
Each discrimination law has its own separate and distinct categories and potential limits on the damages you can recover. Oftentimes, we make strategic decisions on which claims to assert on a particular case for this very reason.
In Florida especially, we try to file claims both under Title VII and the FCRA because the caps are different under both statutes when it comes to punitive or compensatory damages. By asserting claims under both statutes, we get the best of both worlds.
HEAR THE PROMISE I HAVE FOR EMPLOYERS WHO DISCRIMINATE AGAINST THEIR EMPLOYEES
The EEOC’S Charge Processing Procedures
Unlike cases under the FLSA (overtime laws), and the FMLA which can be filed directly in Court, the majority of cases filed under the discrimination laws must first be filed with the EEOC so that the organization can investigate.
Now I’m going to be honest with you here for a minute.
In my opinion, the EEOC is where good discrimination cases go into a coma for what could be years.
Let me explain what I mean: Without getting into politics, the EEOC is incredibly understaffed and does not have the time or resources to investigate most complaints properly. So, an employee hurries up and files his/her EEOC Charge, and the case can sit for 1-3 years collecting dust.
At our firm, we believe in getting the case from the EEOC as quickly as possible and putting it into suit.
Once the case has been filed with the EEOC and has sat for at least 180 days (60 days if ADEA (“age discrimination”), we/you can request a Right to Sue.
This means that whether the EEOC is done or not, you now have the right to take your case to court.
This is a strategy our firm implements in most discrimination cases, rather than waiting around for years for a determination by the EEOC that means nothing regarding your litigation case.
Timing of EEOC Procedures:
- Under most discrimination laws, you have to file a Charge of Discrimination within 180 days of the last discriminatory conduct;
- In Florida, if you want to file under the FCRA ,you have 365 days to file a Charge of Discrimination;
- Once you get your Right to Sue Letter, you have 90 days to file under the Title VII laws. If you do not file within 90 days, your claim is mostly likely gone.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.
LISTEN AS I SHARE VICTIMS OF DISCRIMINATION USUALLY CONTACT OUR EMPLOYMENT LAW FIRM
How Is a Charge of Discrimination Filed?
- An EEOC charge may be filed by mail or in person at the nearest EEOC office. Individuals may consult their local telephone directory (U.S. Government listing) or call 1-800-669-4000 (voice) or 1-800-669-6820 (TTY) to contact the nearest EEOC office for more information on specific procedures for filing a charge.
- Individuals who need an accommodation in order to file a charge (e.g., sign language interpreter, print materials in an accessible format) should inform the EEOC field office so appropriate arrangements can be made.
- Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing,
VII. What Information Must Be Provided to File a Charge?
- The complaining party’s name, address, and telephone number;
- The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known;
- A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated); and
- The date(s) of the alleged violation(s).
- Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.
FREE ADVICE- WHATEVER YOU PUT IN YOUR CHARGE OF DISCRIMINATION CAN MAKE THE DIFFERENCE BETWEEN WINNING AND LOSING YOUR CASE IN LITIGATION. Less is more. If you overstate facts in your Charge and cannot prove them, the Employer will use this against you in front of a jury at trial. I always use the old analogy: “If they ask you what time it is, don’t tell them how to build a watch.” Just answer the questions concisely and clearly.
Contact our Davie, Florida Discrimination Attorney at Celler, Legal, P.A. for a FREE consultation regarding your discrimination case.
WATCH THE FULL INTERVIEW WITH WORKPLACE DISCRIMINATION ATTORNEY RICHARD CELLER