Thursday, March 17, 2011

How to Prove Illegal Discrimination Under Federal, State and Municipal Anti-Discrimination Laws Investigated by the EEOC and State Agencies Such as the PHRC

Investigates Charges of Discrimination
Filed Under Title VII

What is Title VII Discrimination?

Title VII, initially known as the Civil Rights Act of 1964, and later amended to encompass statutes such as the Americans With Disabilities Act and the Pregnancy Discrimination Act, makes it illegal to discriminate against employees because of their sex, race, color, pregnancy, religion, national origin or disability.

Title VII has been supplemented by other federal anti-discrimination laws, perhaps the most notable being the Age Discrimination in Employment Act.

Every State in America Has an Anti-Discrimination Law That Protects Women, Older Workers, Minority Workers and Employees With Disabilities From Unlawful Discrimination, Hostile Work Environment, Wrongful Termination, Unjust Discharge, or Illegal Retaliation 

Every state in America has an anti-discrimination statute that is similar to Title VII, as amended. In Pennsylvania, the counterpart to Title VII is the Pennsylvania Human Relations Act ("PHRA"). The classes of protected employees in the PHRA are similar to those in Title VII.

The Pennsylvania Human Rights Commission Investigates
Complaints of Discrimination Under PHRA
Does the Pennsylvania City or County That I Work in Have a Law That Makes it Illegal to for a Company Discriminate or Unlawfully Retaliate Against Employees? 

Many major cities and municipalities throughout the USA have anti-discrimination ordinances that protect employees who work within the town's limits from unlawful discrimination or retaliation.

Click Here for our Post identifying all such county, township, etc. ordinances.

Philadelphia's Fair Practices Ordinance Makes it Illegal to Discriminate Against Employees Because of Their Race, Sex, Sexual Orientation, Gender Identity, Disability, Age, etc. 

Workers in Philadelphia Enjoy More Protection From Discrimination
Than Do Workers Elsewhere in Pennsylvania 
In Philadelphia, the Fair Practices Ordinance provides far broader protection against employment discrimination because, unlike Title VII and PHRA, it makes discrimination based upon sexual orientation and gender identity illegal.

What is Illegal Discrimination Under the Civil Rights Act of 1964 and Similar State or Municipal Laws?

Are You Different?
An illegal act of discrimination prohibited by Title VII is an intentional act by a decision-maker within a company that impairs the employment rights of an individual. Such acts, frequently in the form of demotion, lack of promotion, suspension, discharge, etc., are referred to as "adverse employment actions."  Such adverse employment actions are illegal IF they are undertaken because of the employee's age, race, sex, pregnancy, national origin, religion, disability or other protected characteristics.

For simplicity's sake, we will in this Post use the word "termination" as a catch all for all "adverse employment actions."

"Pretext" the Key to Proving Discrimination Under Title VII and Similar Employment Laws

One proves illegal discrimination by proving that the employer's STATED REASON for the termination was a LIE, and that the employer KNEW IT WAS A LIE.

In other words, you must prove that the employer made up the reason for the termination.  This is known as a "pretextual termination."

It is not enough to prove that the employer's reason for adverse employment action was wrong - that will not prove pretext.  It is relatively easy in many cases to cast great doubt on the facts the employer relies upon to provide the basis for the termination. No, in order to prove pretext, one must prove that the reason provided by the employer for the adverse employment action was either a lie or the product of an intentional decision to accept as truth a set of facts that the employer had reason to believe were untrue.

Courts know that humans make mistakes, and that sometimes companies give false reasons for a termination for a variety of reasons (i.e. didn't want to hurt the employee's feelings, were looking for any reason at all to get rid of the employee because they simply did not get along with or were not liked by their boss, were misled by another employee who claimed that the fired employee did something that he/she actually did not do, simply misperceived the employee's performance and quality of work, etc.).  That is why the standard for proving discrimination cases is so hard to satisfy.

If merely proving that an employee was fired for a bad or incorrect reason was enough to prove a discrimination claim, well, the courts would be overflowing and virtually shut down by cases (this type issue is usually dealt with at unemployment hearings - in any given large city, there are 100+ unemployment hearings every day!).

Proof that the Employer's Stated Reason for Termination Was WRONG is NOT Enough-
You Must Prove Employer LIED
Example of Pretext:  Employer states that it decided to fire Joe Employee, age 67, after his manager, John Smith, reported that Joe had been late on 3 occasions in January.

John Smith later testifies that, although Joe had been late on 3 occasions in January, he never reported that to any of his superiors, that the decision to fire Joe was made by his boss, Sally, and that he was never consulted by Sally before Joe was fired.

Sally had been hired by Employer 3 months before Joe was fired, and had been heard saying that the Employer "needed to get rid of all of the old guys."

That is a potential winner of an age case. Employer's stated reason for firing Joe was a lie, and the decision-maker behind the firing, Sally, had made an ageist statement not long before the termination.

Example of NO Pretext: Employer states that Manager John Smith fired Joe Employee, age 67, for being late on 3 occasions in January.

John Smith later testifies that Joe had been late on 3 occasions in January, that he reported that to his boss, Sally, that he recommended that Joe be fired and that he and Sally made the decision to fire Joe.

Joe proves that he was not late on 3 occasions in January, and that John Smith knew that or should have known that.

After looking over all of the evidence, John Smith admits he was wrong, and that Joe indeed had not been late 3 times in January. HOWEVER, John Smith states that he honestly believed Joe had been late 3 times when he recommended that Joe be fired.

Sally had been heard saying that the Employer "needed to get rid of all of the old guys."  However, she testifies that she believed John Smith when he told her that Joe had been late 3 times in January, and was following company policy, which mandated termination of employee late 3 times in a single month, when she agreed with Smith's recommendation to fire Joe.

That is a NOT a winnable age case, because there is no evidence of pretext.

John Smith may have been wrong, but he he did not make up the reason that Joe had been fired. Sally did make an ageist comment, but her rationale for firing Joe was based upon her reasonable reliance upon a statement by John Smith that Joe had engaged in misconduct that warranted termination under Employer's policy.

The Difference Between a Wrongful Termination and a Good Discrimination Claim

When Joe calls me a week after he was fired, he assures me that he was not late 3 times in January, and that he wanted to sue the Employer for "wrongful termination."

Under either of the above-scenarios, Joe was "wrongfully terminated," because  he did not engage in the acts that Employer said caused his termination.  Consequently, Joe should win unemployment benefits in each of the above scenarios.

However, in the second scenario, that is all that he will receive.  That is so because, although he was "wrongfully terminated," there is no evidence of "pretext," and thus no evidence to support a claim of illegal discrimination.

Postscript:  During discovery in the second scenario case, there is evidence that strongly suggests that John Smith really "had it in" for Joe because he did not like Joe's "know it all" attitude, and that he probably really did not "honestly believe" Joe had been late 3 times in January.  However, since it is legal to lie about why someone is being fired, and it is legal to fire someone because of a perceived bad attitude, there is no possible discrimination claim.

If They Fired you BECAUSE of This, You May Have a Good Claim
In order to prove you were fired for an illegal discriminatory reason, you must in essence prove that the employer first made the decision to fire you because of your [age, sex, race, etc.], and then later came up with a reason to fire you that was in essence designed to hide its true motivation.

How Do You Prove That an Employer's Reason for Firing You Was Pretextual?

How do you prove that the calculated decision to fire you was due to your age, race, sex, etc.?  Not that easy!  However, here are 3 common indicators that employee-side lawyers look for:

1) ratios within the workplace that demonstrate a preference for a class of employees that is different from that of the complainant (i.e. most managers are men, white, etc.);

2) comments suggesting prejudices made within the workplace (i.e. "when do you plan on retiring?', "this is not a job for a woman!"); or,

3) "comparators," i.e. people occupying a similar job to that of the terminated employee who are of a different race, sex, etc.  More specifically, we look for comparators who "got away with" conduct similar to that which resulted in the claimant's termination, despite the fact that management knew what they had done.  Here is an example: Woman age 30 on Internet everyday, and management knows about it and does not discipline her.  Woman age 58 "caught" on Internet one time, and is immediately fired.

NOTE:  This post does not address the principle of constructive discharge.  In general, a constructive discharge (i.e. an involuntary quit) takes place where an employer's actions are such that no reasonable person would remain employed.  If a constructive discharge is proven, then it is treated the same as a termination.

    Pennsylvania Family Leave and Disability Attorney - Philadelphia Area Contingent Fee                 Employment Lawyer - Discrimination Law Firms for Employees in Chester County,                            Delaware County, Bucks County and Montgomery County

Helping Pennsylvania Workers Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

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