It is illegal to discriminate in hiring, promotions, termination (known as wrongful termination) or other aspects of employment on the basis of a person’s race, gender, national origin, religion, disability, or age, or to retaliate against an individual for opposing such practices, or consulting an attorney or the United States Equal Employment Opportunity Commission (EEOC) or equivalent state entity. In addition, various states, counties, and cities, also outlaw employment discrimination and wrongful termination on the basis of other classifications such as: marital status, military service, parental status, etc.
Employment discrimination and wrongful termination claims can be difficult because the employee has to prove that the reason he was fired (wrongful termination), not hired, not promoted, or otherwise harassed is because of his (or her) “protected classification”. By protected classification, we mean a person’s gender (male or female), race (black or white), national origin (Hispanic, Asian, African, or having parents or grandparents from anywhere outside of the United States), age (over 40), or disability. In this sense, the employee has to prove why the company did it.
In the case of religious discrimination, and disability discrimination, it may also be illegal for an employer to deny reasonable accommodations to an employee. For example, absent extenuating circumstances, an employer cannot require a person to violate his or her religious beliefs such as working on the Sabbath, eating a forbidden food, or using alcohol if doing so is against the person’s religious principles. Instead, the employer must make an accommodation enabling the employee to do his job without violating his religion. Similarly, an employer must accommodate the disabilities of its employees if those disabilities meet certain standards. If a company terminates an employee without considering an accommodation, this too can be wrongful termination.
This page discusses the proof, definition, and pitfalls of employment discrimination and wrongful termination claims (wrongful termination is a kind of discrimination.) Other pages specifically address the different kinds of employment discrimination:
- Sex / Race Discrimination
- Religious and Disability Discrimination
- Age Discrimination
- Sexual Orientation Discrimination
- Housing Discrimination
What is Discrimination?
Discrimination lawyers, particularly employment discrimination lawyers, often find themselves in the difficult position of having to explain the difference between reality and legality. By its definition, discrimination simply means the process of choosing between two alternatives. But discrimination law or more appropriately anti-discrimination law addresses the act of making choices based upon a person’s race, gender, religion, national origin (ethnicity), disability, or age (over 40) or other protected class. There are also some laws that prohibit discrimination based upon a person’s sexual orientation. These are commonly wrongful termination claims. Wrongful termination is particularly serious because a person can lose an entire income.
Most states, including Illinois, recognize the doctrine of “at will” employment. At will employment simply means that an employee works for a company only so long as both employee and the company want the relationship. In short, the employee can no more make the company give him a job than the company can make the employee work. You can quit any time you want to quit and a company can fire you any time it no longer wants you working for it. In fact, neither one of you needs a reason to end the relationship. (Thus, most terminations are not a wrongful termination.) Employment discrimination, wrongful termination and retaliation are exceptions to at will employment.
There are many laws that address employment discrimination and wrongful termination including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and others. Some of these laws require that the employer have a minimum number of employees; and the total number of employees can effect the amount of money that can be recovered for discrimination or wrongful termination. (In promotion and wrongful termination cases, there is no limit to the amount of back pay that can be collected.) In addition, these laws have different statutes of limitations. If you have an employment discrimination or wrongful termination claim you should contact an employment lawyer as soon as possible.
Employment discrimination and wrongful termination (and retaliation) is proved by the “direct method” or the “indirect method”. The direct method usually involves an admission. “You don’t belong in a man’s job, you’re fired” is direct proof. “Why did they hire a woman to do this job?” when the wrongful termination or discrimination happens months or even years later will not be direct proof. A comment by someone other than the person who committed the discrimination will usually not be direct evidence.
The indirect method of proof is more common and it takes place in three steps. First, the employee must prove that he is qualified for the promotion (or in a wrongful termination case, the job) and is of a different race, sex, ethnicity, religion, or other protected classification than people who were treated better (i.e. did not get fired, or did get a promotion.) Next, the company must give another reason for different treatment (usually poor performance, but it could be almost anything.) Then, the employee must prove that the company’s reason(s) was a lie. Evaluations are often helpful, particularly if the person who was treated better has weaker evaluations. (This is particularly important in wrongful termination cases.) It is always important to have good performance and attendance, but even more important when you believe you are facing employment discrimination or are afraid of retaliation (particularly wrongful termination) because you might give the company another reason to fire you.
Bona Fide Occupational Qualifications
Where being of a particular class is necessary to do the job, an employer is allowed to discriminate. This is called a bona fide occupational qualification (BFOQ). For example, a men’s prison may be allowed to require that guards in certain areas be male to protect the privacy rights of the prisoners. And certainly a church can refuse to hire a pastor who is of a different religion. Because the company claims that the employee has to be a certain sex or other class, BFOQ does not apply to wrongful termination. BFOQs are rare.
Proving discrimination and wrongful termination is a delicate task. Your lawyer must be familiar with the intricacies of the laws, the statutes of limitation, the physical and emotional effects of litigation on her clients, the interaction of various laws, and the rules of procedure in your state. Employment discrimination and wrongful termination cases are a large part of what we do at Karnes Legal Services. If you are concerned about discrimination, wrongful termination or retaliation, you need to consult with an employment lawyer.
To speak to one of our legal professionals who is dedicated to communicating with you, is sensitive to your needs and is an effective and skilled advocate, contact the law firm of Karnes Legal Services, at 731-668-9529. Or, if you prefer, send us an e-mail using our secure online form. We accept all major credit cards.