ABOUT EMPLOYMENT DISCRIMINATION

At the Law Offices of Thomas More Holland, we understand that suffering from employment discrimination can disrupt your entire life.  

Discrimination laws are complicated and there are many different types of employment discrimination.  If you believe your employer is engaging in discrimination, call our office immediately so we can review the details of your specific situation and guide you accordingly.  How you handle the situation with your employer is of paramount importance.  You can easily forfeit your rights if you do or say the wrong thing.  Therefore, it is important to call us right away.

WHAT IS EMPLOYMENT DISCRIMINATION?

Employment Discrimination is when your employer discriminates against you on the basis of a “protected characteristic” such as:  

• Race
• Color
• National Origin
• Religion
• Sex (Gender)
• Pregnancy
• Sexual Orientation
• Gender Identity
• Age
• Disability
• Retaliation

There are several federal and state laws and Acts which cover the various types of Employment Discrimination.  The most common are Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Pennsylvania Human Relations Act (PHRA), and the New Jersey Law Against Discrimination (NJLAD).  

The PHRA and the NJLAD are state statutes which mimic Title VII, the ADA and the ADEA.  All prohibit any type of discrimination in employment.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

This Act prohibits employers from discriminating against you on the basis of your race, color national origin, religion.  It has been expanded to include sex (gender), pregnancy, sexual orientation, and gender identity.

What are the Elements of Discrimiantion?

To prevail on a claim for employment discrimination, you must prove: 1) you are a member of a protected class; 2) you were qualified for the position; 3) you suffered an adverse employment action; and 4) circumstances exist that give rise to an inference of discrimination.

What Is An Adverse Employment Action?

An “adverse employment action” is when your employer takes a hostile or unfavorable action with regards to your employment.  Examples include:

• Termination
• Demotion
• Job transfer
• Suspension
• Giving a negative performance review
• Causing an employee to feel uncomfortable at work
• Cutting pay
• Cutting hours

What Qualifies As A  Hostile Work Environment?

A hostile work environment is also known as harassment.  To prove prevail on a claim for a hostile work environment, you must show: 1) you are an individual with a protected characteristic; 2) you were subjected to unwelcome harassment; 3) the harassment on the basis of your protected characteristic; 4) the harassment was severe or pervasive to alter the conditions of your employment and create an abusive working environment; and 5) the employer knew of the harassment and failed to take action.

THE AMERICANS WITH DISABILITIES ACT

Under the Americans with Disability Act (ADA) an employer is prohibited from discriminating against individuals with a disability.  The Act also mandates that an employer has an affirmative duty to accommodate disabled individuals.  

Under the ADA, you qualify as “disabled” if you have a  physical or mental impairment that substantially limits one or more major life activities.

Major life activities include things such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

Mental health issues (depression, anxiety, PTSD, etc.) and alcoholism, and drug addiction also qualify if the condition affect any major life activities.

What Is Disability Discrimination?

Disability discrimination is when your employer discriminates against you on the basis of your disability.  There are several types of disability discrimination.  The two most common are: 1) disparate treatment; and 2) failure to accommodate your disability.

What is disparate treatment?  

Disparate treatment is when your employer takes an adverse action against you.  In order to prevail on a disability discrimination claim, you must show: 1) you are a disabled person within the meaning of the ADA; 2) you are qualified to perform the essential functions of your job, with or without reasonable accommodations by the employer; and 3) you have suffered an otherwise adverse employment action.

The employer then has to offer a legitimate and non-discriminatory reason for its “adverse action”.  Unfortunately, employers often falsify a “legitimate” reason for the adverse action.  For example, the employer will say your performance was poor to rebut the presumption of discrimination.  

Then, you must fight to show that the employer’s “legitimate reason” is untrue.

What is an adverse employment action?

An “adverse employment action” is when your employer takes a hostile or unfavorable action with regards to your employment.  Examples include:

• Termination
• Demotion
• Job transfer
• Suspension
• Giving a negative performance review
• Causing an employee to feel uncomfortable at work
• Cutting pay
• Cutting hours

Does My Employer Have To Accommodate Me?

Yes.  Your employer has a duty to accommodate you in most circumstances.  If your employer fails to do so, you may very likely have a failure to accommodate claim.  

However, you must be sure to specifically ask for an accommodation.  Often employers have a Request Form readily available which you can simply take to your physician to complete.

To prevail on a failure to accommodate claim, you must prove: 1) the employer knew about your disability; 2) you requested an accommodations or assistance for your disability; 3) the employer did not make a good faith effort to assist you in seeking accommodations; and 4) you could have been reasonably accommodated if the employer acted in good faith.  

What Are Some Types Of Accommodations?

• providing or modifying equipment or devices
• job restructuring
• part-time or modified work schedules
• reassignment to a vacant position
• adjusting or modifying examinations, training materials, or policies,
• providing readers and interpreters 
• making the workplace readily accessible to and usable by people with disabilities

Can I make a claim for harassment based due to my disability?

Yes.  You may make a claim for a hostile work environment under the ADA. 

 You must show: 1) you are a qualified individual with a disability under the ADA; 2) that you were subject to unwelcome harassment; 3) the harassment was based on your disability or your request for an accommodation; 4) the harassment was sufficiently severe or pervasive to alter the conditions of your employment and create an abusive working environment;  and 5) your employer knew or should have known of the harassment and failed to take prompt, effective remedial action. =

AGE DISCRIMINATION IN EMPLOYMENT ACT

What Is Age Discrimination?

The Age Discrimination in Employment Act only protects people who are over 40 years old.  It does not protect people under the age of 40.

In order to prevail on an age discrimination claim, you must prove: 1) you are over 40 years old; 2)  you are qualified for the position; 3) you suffered an adverse employment action; and 4) you were ultimately replaced by a person sufficiently younger to permit an inference of age discrimination.

What Qualifies As A  Hostile Work Environment?

A hostile work environment is also known as harassment.  To prove prevail on a claim for a hostile work environment, you must show: 1) you are an individual with a protected characteristic; 2) you were subjected to unwelcome harassment; 3) the harassment on the basis of your protected characteristic; 4) the harassment was severe or pervasive to alter the conditions of your employment and create an abusive working environment; and 5) the employer knew of the harassment and failed to take action.

RETALIATION

All too often employers retaliate against an employee for exercising, or attempting to exercise, their legally protected rights.  Retaliation is when your employer engages in an “adverse employment action.”  You can have a claim for retaliation under Title VII, the ADA, and/or the ADEA.

The most obvious example of retaliation is termination, i.e., your employer fires you.  However, Retaliation can take many forms.  The following actions by your employer may qualify as “Retaliation”:

• Termination
• Demotion
• Job transfer
• Suspension
• Giving a negative performance review
• Causing an employee to feel uncomfortable at work
• Cutting pay
• Cutting hours

If you have done, or attempted to do, any of the following and your employer has acted unfairly or in a retaliatory manner, you may have a claim:

• Requesting time off from work under Family Medical Leave Act
• Filing a Workers Compensation claim
• Requesting an accommodation for a disability
• Requesting time off due to an injury or illness
• Requesting to be moved to a new position because of harassment by a coworker or supervisor
• Reporting discrimination
• Filing a complaint of discrimination
• Reporting discrimination to Human Resources

WHAT TYPES OF DAMAGES CAN I RECOVER FOR DISCRIMINATION?

Depending on the specific cause of action you may recover any or all of the following:

• Back pay
• Front pay
• Compensatory damages
• Legal Fees
• Pain and suffering
• Punitive damages
• Liquidated damages

WHAT DO I DO IF I THINK I HAVE A DISCRIMINATION CLAIM?

If you believe you have suffered, or are still suffering, from any type of employment discrimination, contact us immediately by filling out our contact form or calling our office at: 215-592-8080.

We are also available nights and weekends.  If it is after 5:00 p.m. or over the weekend, please send a text to: 484-238-7848 and an attorney will get back to you.