Employment Discrimination FAQ
- What is employment discrimination?
- Sexual discrimination: do you have a claim?
- What is the difference between sexual discrimination and sexual harassment?
- What is the first step with my claim?
- What happens after the claim was filed?
- How do I prove my case?
- What happens if the case ends up in court?
What is employment discrimination?
According to the Massachusetts Commission Against Discrimination, employment discrimination begins with an "adverse employment action": something an employer does that hurts an employee. Examples of such actions are: terminating the employee, not selecting the employee for a promotion, giving the employee a poor evaluation, harassing the employee with derogatory remarks or behaviors, or denying the employee's request for an accommodation of a disability. If you believe the adverse employment action happened to you because of your race, color, religion, national origin, ancestry, sex, age, disability, sexual orientation, genetics, or past involvement in a discrimination complaint, it could be discrimination. If the adverse action tat occurs in your workplace happened to various people from different backgrounds it might not be discrimination.
The employer generally tries to prove that his decision is based on bona fide occupational qualifications, rather than a discriminatory reason.
It is important to understand that the employer does not really need a good reason to terminate the employment, unless there is a contract that states otherwise. An employee generally can be fired for good reason, bad reason or no reason whatsoever, - except for a discriminatory reason.
Sexual discrimination: do you have a claim?
Most likely you do, if you sustained damages because of either of the following:
1) you were subject to sexual discrimination by your employer, or
2) you were subject to sexual harassment at work and your employer failed to adequately protect you.
What is the difference between sexual discrimination and sexual harassment?
Sexual harassment is a type of sexual discrimination, which is a broader category.
Sexual harassment occurs when a person (of any gender)
1) is subject to unwanted and unsolicited sexual advances of any kind from a co-worker or a supervisor, and
2) such advances are either basis for employment decisions or create an intimidating, hostile, humiliating or sexually offensive work environment.
When an employer receives a complaint or otherwise finds out about alleged sexual harassment in the workplace, the employer has a duty to investigate promptly and thoroughly, and take appropriate corrective action - i.e., doing whatever is necessary to end the harassment.
If the employer fails to do so he is usually liable for the harm and damages that happened to the employee as a result of the sexual discrimination.
What is the first step with my claim?
You file a complaint with the Massachusetts Commission Against Discrimination. It is a state agency, where every claim that alleges discrimination starts. You cannot get your claim into the state court system until MCAD has a chance to have its say. If the claim is dismissed by the MCAD such dismissal can be appealed, and the claim can still be filed in court the court of law.
If the claim involves allegations of discrimination that constitute violation of federal law, another agency gets involved: US Equal Employment Opportunity Commission. EEOC is an agency of the United States Government that enforces the federal employment discrimination laws, analogous to the MCAD on the state level.
Many complainants pursue their claims at the MCAD without legal representation since there are clerks in the commission who assist in filing complains. It must be noted though, that the clerks, who are indeed quite helpful, do not represent the interests of the individual. Rather they represent the interests of the state in ending discrimination on one hand and not wasting the commission's resources on investigating frivolous claims on the other. On several occasions in my practice a person, who filed her complaint with the assistance of a clerk, failed to include some important allegations into the complaint, which later diminished the recovery. If you are not represented by an attorney when filing your complaint, make sure you mention to the clerk each and every episode of discrimination and insist on including everything!
Unfortunately many valid claims are tossed out due to the employee's failure to meet the filing deadline. A claim has to be filed with the MCAD within 10 months of the alleged discriminatory act. If you realize that you missed the deadline, it is better to still attempt to file - first, it is free anyway, second, there are certain exceptions to the rule and a skilled attorney can sometimes manage to keep your claim running even if it was filed after the deadline.
What happens after the claim was filed?
After the complaint is filed, MCAD undertakes an investigation, in course of which the complainant (employee) and the respondent (employer) exchange statements, in which they explain their positions to the investigator appointed by the MCAD. Then the parties conduct mutual discovery.
At this stage of the case it is vitally important to be able to "present the claim." Employee generally attempts to prove harassment introducing corroborating evidence (statements of co-workers proving the fact of the harassment or providing evidence of discriminatory intent of the employment decision, incident reports about the harassment act, prior story of the employer being involved in discrimination or harassment.) Obtaining and preserving evidence is quite complicated at this stage and can make the difference between winning and losing the whole case.
Establishing a strong case is essential; establishing damages is vital to the case - and naturally it is the most complicated aspect of the whole case. Damages in sexual discrimination cases generally fall within following categories:
1) economic losses (lost wages and salary, medical and counseling expenses and other losses that can be quantified since they involve money lost or spent)
2) non-economic losses (emotional distress, mental anguish, psychological pain and suffering, mental disabilities and disorders)
3) physical pain and suffering, injuries sustained, disabilities, etc
4) punitive or exemplary damages. Punitive damages in discrimination cases can be awarded by a court, but not by the MCAD. Punitive damages can result in the award of monetary damages up to nine times the amount of compensatory damages. Therefore, when a case has a potential of punitive damages, I would usually take it out of the MCAD system and file a suit in court.
After the claim is filed and the discovery is commenced, a hearing in front of an MCAD officer occurs, establishing the probable cause of the complaint. Thereafter, in course of a mini-trial the claim is resolved: the officer determines the liability and extent of damages. Any party can later appeal the decision of the officer to the court.
What happens if the case ends up in court?
The case can be removed from the MCAD into the court either because MCAD dismissed it, or because, after MCAD found probable cause, the complainant chose to take it away from the MCAD and file it in court. In order for that to happen the initial complaint at the MCAD is dismissed, and a civil action is filed in the appropriate court: state or federal. The process in court is similar to that in the MCAD: the plaintiff files the complaint and serves it on the defendant; the defendant has 20 days to respond, whereupon a discovery starts. When the case is in court the procedure and the terms become stricter.
In course of the discovery a certain amount of client's involvement is inevitable: mostly it has to do with answering interrogatories (series of questions sent by the defendant), providing documents in response to document requests of the defendant and attending a deposition: questioning by the defendant's attorney.
After the discovery is completed, the parties retain expert, agree upon the date of the trial, and then have a trial.