Employment Discrimination

Employment Discrimination Overview

It is illegal for an employer to discriminate against an applicant, employee, or former employee because of their membership in a protected class, or to retaliate against them because they engaged in protected activity.

What Is a Protected Class or Activity?

A protected class is an identity characteristic that is protected from discrimination by law. Federal law protects the following characteristics:

Age
Color
Disability
Gender
Genetic Information
National Origin
Pregnancy
Race
Religion
Sex
Sexual Orientation
Veteran Status

Protected activity is conduct that is protected from retaliation by law. For example, federal law protects the following actions:

Filing a charge or complaint of discrimination, including before the Equal Employment Opportunity Commission (EEOC) or in court;
Participating in a discrimination investigation or lawsuit, including serving as a witness;
Opposing discrimination, including complaining to your employer’s human resources (HR) department and threatening to file a charge or complaint of discrimination; and
Taking a leave of absence under the Family and Medical Leave Act (FMLA); and
Reporting your employer for defrauding shareholders.

What Counts as Discrimination or Retaliation?

Discrimination or retaliation broadly comprises any adverse employment action your employer takes against you because of your protected class or activity. Adverse employment actions can include firing or demoting you, failing to hire or promote you, failing to protect you from harassment, fostering a hostile or intimidating work environment, and failing to reasonably accommodate you.

Some forms of discrimination are class-specific. For example, if you have disability- or pregnancy-related limitations or religious obligations, employers are required to reasonably accommodate those limitations and obligations. An employer’s failure to do so is unlawful discrimination.

What Does It Mean for Discrimination or Retaliation to Be “Because of” My Protected Class or Activity?

Employers are generally allowed to take adverse employment actions against you for reasons unrelated to your protected class or activity, such as poor performance or insubordination. But far too often, employers will assert they only acted against you for legitimate work-related reasons, when the real reason was because of your protected class or activity. In those instances, as the person bringing the lawsuit, it is your burden to prove your employer’s explanation is a “pretext”—that is, disingenuous or false. You can do that by providing direct or circumstantial evidence of discriminatory or retaliatory intent.

Direct evidence of discrimination or retaliation includes:

Statements evincing discriminatory or retaliatory intent, such as racial slurs, inappropriate comments about your appearance, or attempts to dissuade you from complaining about the discrimination.

Circumstantial evidence of discrimination or retaliation includes:

Suspicious timing, such as when your employer takes adverse employment action against you shortly after you asked for a reasonable accommodation (like a day off to celebrate a religious holiday) or complained about discrimination or harassment; and
Differential treatment, such as when your employer treats you worse than similarly situated employees who do not share your protected characteristic (e.g., a boss assigning a female employee secretarial tasks that he does not assign to male employees of a similar position).

Generally, documentary evidence (such as emails, text messages, or lawfully made audio recordings) is stronger than testimonial evidence—statements that are made under oath at deposition or in court, which can sometimes devolve into a “he said, she said.” If you find yourself in the latter situation, don’t fret: plenty of cases succeed on testimonial evidence alone.

How Long Do I Have to File My Claim?

The statute of limitations—the time limit after which the law prohibits you from filing a claim—varies depending on the statute you sue under. For example, Title VII of the Civil Rights Act of 1964, which protects against employment discrimination based on race, sex, religion, and national origin, requires employees to first file a charge with the EEOC before they can sue in court. The deadline to file can be as short as 180 days, although it can be extended to 300 days under certain circumstances. Even if you can no longer bring a claim under Title VII, you may still be able to bring a claim under a different statute with a longer limitations period.

Don’t wait. Certain statutes’ limitations periods (like Title VII’s) can be rather unforgiving, and it takes time to gather the evidence, analyze the facts, conduct legal research, and prepare a compelling argument to file with the EEOC or in court. Whether or not you ultimately choose to file a claim, if you feel you have been wronged and would like to preserve your ability to take legal action, it is better to act sooner than later. An attorney can help you understand what options are available to you under the law, including potentially avoiding litigation altogether through settlement.