Who Can Be Protected From Employment Discrimination?
Any employee who works for an employer that meets the minimum threshold for the number of employees to be covered by discrimination laws is protected from employment discrimination based on the protected characteristics.
How Do Companies Avoid Breaking The Law When Disciplining Or Firing Employees?
The first step in helping a company to avoid breaking the law when they are disciplining or firing an employee is to make sure they are educated about the law before it gets to the point of discipline or termination. If the first time an employer speaks to her attorney about a problem employee is when things are so bad that they want to fire that employee, there is a high probability that the employer has missed the chance to take steps to protect itself against a discrimination or wrongful termination claim. However, if an employer is in the habit of seeking advice from their employment lawyer on a regular basis and has established procedures for discipline and termination of employees that can be enforced in a neutral, non-discriminatory manner, then that employer can move forward with confidence that the problem has been handled correctly.
It is useful for an employer to have a relationship with an employment lawyer who can advise them on how to navigate that process, even if they have never needed to fire an employee before. In general, employers need to ensure that they are not being unduly harsh in their discipline or their decision to terminate an employee, if there is any chance that the decision can be interpreted to have been based on any of the protected characteristics, namely—race, color, national origin, sex, religion, age and disability. For example, if the problem employee is a man and if he gets fired and claims that his female coworkers did the same things he did but were never disciplined or terminated for their behavior, then that could be problematic. Even if the employer has acted with foresight to enact policies and procedures that ensure a neutral, non-discriminatory process, the employer will still want to look at the situation from the employee’s point of view and consider whether or not their actions are likely to be perceived as discriminatory based on the protected characteristic of sex.
If there are legitimate, non-discriminatory reasons for firing someone—even if it happens to be the only man in the office or the only Baptist in the office or the only employee over the age of 40—then an employer can fire them. Being part of a protected class does not guarantee an employee permanent employment. However, the employer would be wise to enact neutral processes and document any and all legitimate, non-discriminatory reasons that justify the employee’s discipline or termination. The employer can be sure that the fired employee will view the situation differently than the employer, and the last thing an employer wants is to receive a demand letter from the employee’s attorney accusing them of discriminating on the basis of a protected characteristic.
What Is Retaliation? What Are My Rights Based On My Race, Sex, Or Medical Condition?
There are several anti-retaliation provisions within the anti-discrimination laws. A retaliation claim would most commonly arise when an employee reports to their manager or human resources department that they are suffering some sort of discrimination. Perhaps the employee reported that she was being sexually harassed. Maybe they complained about not being promoted when the promotion was instead given to a co-worker of a different race who, in the eyes of the complaining employee, lacks qualification for a promotion. If someone reports that they feel as though they have been discriminated against, and if the employer begins retaliating against that employee, then the law has been broken. This is true even if the employer never discriminated against the employee, to begin with. Let me repeat that—it is illegal for an employer to retaliate against an employee who has complained of discrimination (or who has cooperated in an allegation or investigation of discrimination), even if no discrimination ever occurred. Acts of retaliation may come in the form of assigning the employee less favorable tasks, scheduling them for the least favorable shift, or demoting them. The Equal Employment Opportunity Commission is the federal agency that is charged with enforcing anti-discrimination laws, and they often find that there was illegal retaliation, even if the underlying complaint of discrimination had no merit. It would also be illegal for an employer to retaliate against an employee who supported or agreed with another employee’s claim of discrimination.
There are some additional anti-retaliation laws that apply in specific instances. For example, if someone takes a leave under the Family and Medical Leave Act, then his job is protected. This means that upon the employee’s return from medical leave, the employer is required to put him back in the same position or a substantially similar position. If the employer instead demotes the employee or cuts his hours or pay, then that would be considered retaliation based on the fact that they took medical leave. Similarly, there are anti-retaliation laws protecting whistleblowers or people who participate in investigations against illegal practices. In short, retaliation is generally prohibited if it relates to someone protecting a legal right, but it is important to understand that not all retaliation is illegal. In fact, a person could describe any instance of having been fired as retaliation. Not every act of retaliation is illegal, but those that are specifically prohibited by the anti-retaliation laws or other workplace protection laws are illegal.
For more information on Protection From Workplace Discrimination, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (480) 378-2400 today.
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