Employment Discrimination Overview

Employment Discrimination Overview

Last updated: July 2009

What is unlawful employment discrimination?

Under federal law, it is unlawful for an employer to fire employees because of their race, color, religion, sex, or national origin. There are additional federal laws that make discrimination based on disability and age illegal as well.

What do I have to be able to show in order to bring a claim for employment discrimination?

To establish the right to bring a claim of employment discrimination (what is called a “prima facie” case of discrimination), you will have the burden of showing that:

  • You are a member of at least one protected class;
  • You were qualified for the job you were doing and were adequately performing that job;
  • The employer fired you; and
  • Someone outside your protected class not fired under similar circumstances, and/or someone not in your protected class WAS hired in your place.

You need these elements at a minimum to even bring a claim for discrimination.

What is a protected class?

Race, color, religion, sex and nation origin are the “protected classes” for employment discrimination under Title VII. To be in a protected class generally means that you are part of a group that has been outside the mainstream majority that has existed in the American workplace (traditionally that would be white, male, and Protestant). A person may be in more than one protected class.

For example, an African-American woman, from Nigeria, who is Muslim, is in four different protected classes:

  • Race (African-American)
  • Ethnic origin (outside the U.S. from Nigeria)
  • Gender (she is a woman)
  • Religion (Muslim)

Why does being in a protected class matter?

Membership in a protected class is a requirement to claim that your firing was discriminatory. You generally must be in a protected class to even allege employment discrimination. While there is a legal theory called “reverse discrimination” where a member of a mainstream group can be discriminated against in certain situations (for example, a male nurse being fired from a job where most of the nurses are women), generally being in a protected class is a requirement.

How can I prove that the reason I was fired is because of my protected class?

It can be very difficult, because to prove pretext you have to prove the employer’s motives, and produce evidence of your boss’s thought processes, biases and prejudices. Sometimes your boss will have made references to or comments about your race, gender or ethnic group, either to you or to others. This type of evidence may help establish the real reason for your firing.

If I think I have experienced discrimination in my firing, what should I do?

If you are the victim of employment discrimination:

  • You must file a charge of discrimination with one of the governmental agencies that investigates discrimination within 180 days of the negative employment action against you;
  • In Illinois, if the employer has more than 15 employees, you may go to either the United States Equal Employment Opportunity Commission (EEOC) or the Illinois Department of Human Rights (IDHR) to file a charge of discrimination;
  • You must first go to one of these two agencies to “exhaust your administrative remedies” before you can bring a court lawsuit for employment discrimination;
  • After you file your charge, the EEOC or IDHR will do some investigation of your claim, and issue a finding of whether there is sufficient evidence to believe that discrimination occurred in your situation; and
  • Only then could you file a court case against your employer.

You do not need to have an attorney to go to the EEOC or IDHR, but you can hire one for that administrative process if you choose to do so.

What will the employer do if I claim discrimination?

After you establish that you have at least a prima facie case of discrimination, the “burden of proof” shifts to the employer to explain why they fired you. The employer must establish that they had a legitimate, nondiscriminatory business reason or justification for their decision. The employer may say that you were not performing well enough in your job. Most employers will articulate some legitimate reason to substantiate what they did concerning your firing.

What happens once the employer gives a reason as to why they fired me?

Ultimately, in any employment discrimination case, the “burden of proof” comes to rest in the end upon you as the claimant. You must be able to prove that the reason the employer gave for firing you is not the true or real reason, but rather it was just given as a lie or cover-up for the real reason you were fired: that you are a member of your protected class. This is called establishing “pretext” for the employment decision. You would have to prove that your membership in the protected class was the motivating factor in why you were fired. While it need not have been the sole reason, you must show that your protected class was more likely than not a determining factor in the employer’s firing of you.

If I can prove employment discrimination, what remedies are available to me?

Generally, the successful victim of employment discrimination is entitled to get his job back if that is feasible, plus receive all the money and benefits he lost from the time he was fired. This can include the pay and benefits you would have received, other damages like pain and suffering and emotional distress, and in some cases even punitive damages to punish the employer, if the employer willfully violated the employment laws.

The boss who fired me Is a different race from me. Does that mean I was discriminated against?

Standing alone, no. You would have to be able to prove that your race was the reason you were fired, not just that you were a different race from your boss.

I am the only person of my ethnic group at my workplace and I was fired. That must mean that it is a discriminatory workplace.

Not necessarily. Statistics alone, like how many employees are male versus female, or white versus other minorities, might be helpful evidence to you, but it does not prove discrimination in and of itself.

What else can I do to evaluate my employment discrimination claim?

If you believe you have legal claims against the employer that fired you, you should consult further with an employment law attorney who can evaluate how strong your claims are, and what they are potentially worth in a monetary sense. An employment law attorney can properly evaluate what happened to you.

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