FREQUENTLY ASKED QUESTIONS
What kind of discrimination can I
sue for?
Federal Statutes
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 Statutes
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).
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