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Frequently Asked Questions
What kind of discrimination can I sue for?
There are many Federal Statutes which prohibit discriminatory treatment in the workplace. To describe a few: Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based upon race, color, national origin, religion or sex. The Act also extends to pregnancy discrimination and employer retaliation. The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older. Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. The Rehabilitation Act of 1973 ("Rehab Act") extends many of the same protections to federal government employees and employees of certain recipients of federal funding. Federal law also prohibits employers from retaliating against employees for "whistle blowing" (reporting on employer violations to a government agency). The Family Medical Leave Act provides additional rights for employees to care for sick or injured family members, including allowing new parents to take care of their newborns, while maintaining their current employment status.
Virtually all aspects of employment activities are covered by some law prohibiting discrimination. Discrimination is illegal whether it involves hiring or firing employees, promotions, compensation or terms and conditions regarding employment. In addition, job harassment or causing an employee to work in a "hostile working environment," has surfaced in many different forms over the past decade in areas such as racial, gender, disability, religion or nationality based- harassment. Employers must also make reasonable accommodation for known or obvious disabilities and for religious requirements.
State and local statutes vary and each should be researched prior to bringing a discrimination claim. In Maryland, Md. Ann. Code art. 49B, § 14 covers discrimination based on race, color, national origin, ancestry, age, religion, sex, family status, marital status, sexual orientation, physical incapacity or mental incapacity
The Maryland Code outlines unlawful employment practices, Md. Ann. Code Art 49B §16, and protects disabilities due to pregnancy and childbirth under Md. Ann. Code Art 49B §17. The intent behind the Maryland Legislature was to enact discrimination statutes that mirrored Federal law and frequently the Maryland State Courts will utilize established Federal common or case law to interpret and enforce the Maryland State statutes prohibiting employment discrimination.
However, this list is hardly exhaustive of the Maryland State remedies. Fore example, the Equal Pay for Equal Work article, under the Maryland Labor and Employment Article, Title 3, Subtitle 3 prohibits employers from paying unequal compensation for substantially the same work.
I'm an African American who was recently passed over for a promotion that was given to someone else. How can I prove a discrimination claim?
Your situation points to a "disparate treatment" theory of discrimination, in that you were treated differently than an employee not of your race. You can prove your case with either direct evidence or indirect evidence. Direct evidence includes statements by your employer directly related to the prohibited action and your class ("I'm sorry but there were too many black faces around the table at meetings."). Absent direct evidence, you, the plaintiff, must demonstrate that you were discriminated against indirectly. To start you must show that you were (1) a member of a protected class, (2) qualified for and rejected for the position sought, and that (3) nonmembers of the protected class were treated more favorably (a "prima facie" case).
After meeting these criteria, the employer must then set forth (but not prove) a legitimate, non-discriminatory reason for the adverse employment decision. The employer's reason(s) must be set forth with sufficient particularity to allow you a reasonable opportunity to rebut it. If the employer is able to meet this standard, you must then show, in order to prevail, that the employer's alleged reason for giving the promotion to a non African American was "pretextual" - ie, either not true or not the real reason.
Your case can be proven in a number of different ways. First, under the discovery rules, our office would be entitled to review not only your personnel file, but the application, work history and possibly personnel file of the individual who got the promotion. We would then compare work history, evaluations, recommendations, awards and any other factor considered in the employer's decision. Second, we would probably interview and possibly subpoena witnesses, such as supervisors and co-workers, to obtain a first hand picture as to the individual most deserving of the promotion and of any possible pattern of discrimination in the organization. For example, if this were an accounting firm that had thirty partners, how many were African American? How many African American associates did not end up on the partnership track? Third, we would contact former employees to investigate if any negative comments or actions were taken against African American employees. All of these steps would allow us to assess the likelihood of prevailing at trial.
Can I get fired if I bring an action for discrimination?
Federal law prohibits employers from retaliating against you in any way for filing a discrimination claim. Retaliation can include demotion, creating a hostile work environment or termination. Not only are you protected, but any employee who testifies as a witness on your behalf is protected from a retaliatory action by your employer.
You are only protected against retaliation if you file a discrimination action, lodge a complaint or otherwise protest against discrimination (engaging in "protected activity") and your employer knows about your protected activity. However, the employer can terminate or take other action against you for incompetence or a shirking of employment responsibilities. As long as you continue to perform at your job at a satisfactory level, the employer cannot generally fire you. Your employer can never legally take action against you for filing a discrimination claim. Retaliation is often easier to show than any other kind of discrimination, and often direct evidence of retaliation is available (e.g., "You have really ruined your chances of promotion now.").
How much can I recover if I prevail, and do I get my lawyers' fees and other costs awarded to me?
Settlement and jury awards vary anywhere from under $5,000.00 to over $15,000,000.00, depending on the case. The kinds of damages that can be awarded include, but are not limited to:
(1) Back Pay and Front Pay - for monies lost from the employer who violated a law and caused tangible harm;
(2) Compensatory Damages - pecuniary (doctors bills, etc.) and non-pecuniary (for physical or emotional pain and suffering) damages directly attributable to proven discrimination (capped by size of employer under some statutes);
(3) Punitive Damages - monies awarded to punish the employer for unlawful discrimination and to serve as a deterrent for other employers to follow the law (available only against private employers); and
(5) Reasonable Attorney Fees, costs and expenses - if you prevail, reasonable costs are generally awarded to you, and you could be reimbursed for all legal fees and costs for bringing and pursuing an administrative Complaint or lawsuit in Court.
I'm a Federal employee and I live and work in Nebraska, can your firm represent me in an EEO or MSPB case?
Yes. We have represented employees all over the country, including Tampa, FL, West Virginia, North Carolina and Dallas, TX. Since Federal employee EEO and MSPB proceedings are "administrative," the attorneys in our firm can practice anywhere in the United States without being admitted in the State in which you live or work. We have also been called upon to represent clients in Federal Court in states outside of Maryland, which may require a routine special admission to that Court.
Can a Union Official file an EEO complaint based on retalition by Agency management because of their union activities?
EEO Complaints have to allege both harm, and a legal "basis" for recovery, and a connection between the harm and the legal basis. In other words, in order to be actionable, a Complaint must be based on alleged discrimination or retaliation under a Statute or law enforced by the EEOC, such as Title VII (Race, gender, religion), the ADA (Disability), or the ADEA (age).
Union affiliation or Union protected activity (Grievance, ULP, etc) does not qualify as a "protected basis" under EEO law, unless you raised allegations of discrimination (on the basis of race, gender, religion, disability, age) in a Grievance or ULP. Then you could theoretically file an EEO Complaint for retaliation - but it would be retaliation for EEO activity which HAPPENED to be in the form of a Grievance, not for Union activity.
Other types of Union activity that you might think would qualify for an EEO Complaint (like Religious Comp time being denied for Union work) have been rejected by the FLRA. See, e.g., Bondzai v. Paul H. O'Neill, Secretary, Department of the Treasury, Appeal No. 01A12691, Appeal No. 01A12692, Appeal No. 01A12693, Appeal No. 01A13807, Agency No. 00-0011C, Agency No. 01-1125, Hearing No. 100-AO-7829X, 102 LRP 22472 (July 30, 2002)(An Agency-wide policy change prohibiting all Union officials from earning religious compensatory time for Union activities should be dismissed for failure to state a claim).