Employee Discrimination: Or Is It?
EMPLOYEE DISCRIMINATION: OR IS IT?
It amazes me that when someone is fired from their job that they instantly think they are entitled to compensation. One person telephoned our office and told us that they were caught misplacing money at their job and that they wanted to sue their former employer for employment discrimination. Employment discrimination has little or nothing to do with job performance, your personal integrity, or your ability to earn a living. There is no constitutional entitlement to have or keep a job.
In New York, if you do not have an employment contract you are an at-will-employee. This means that employment can be terminated by either party for no reason or any reason. This includes simply not liking you or the way you dress, or your attitude, or because an employer has suspicions about you and your behavior. An employer has an absolute right to discharge any employee unless they are protected by an express written agreement.
However, under Title VII of the Civil Rights Act of 1964, an employer cannot fire you because of your race, color, or national origin. National origin means the country from which you or your ancestors came from.
To begin a lawsuit in a federal court under Title VII there are pre-suit administrative steps. The Equal Employment Opportunity Commission (EEOC) must be invoked. The EEOC has the power but not the duty to file suit in its own name on behalf of individuals. If the EEOC elects not to proceed, the individual is free to file an independent lawsuit in a federal court. Unless a “charge” is filed in a timely manner, no further action is allowed. The EEOC investigates the charge to determine if reasonable cause exists to believe the charge is true. If the EEOC finds no reasonable discriminatory cause for dismissal it will dismiss the charge, inform the employer and ex-employee, and notify the charging party of the right to commence a private lawsuit. When the EEOC relinquishes its ability to proceed on behalf of the person harmed it then provides that person with a notice of a right to sue. If the EEOC finds a discriminatory cause of the person being fired they then may give up their role in the process. However, this is only after the EEOC determines that a satisfactory resolution to the ex-employees claim cannot be reached and when the EEOC concludes that it will not file a public lawsuit in its own name on behalf of the employee.
Age discrimination is not part of Title VII. Age discrimination is interpreted by the Age Discrimination Employment Act (ADEA). Under the ADEA, a person that has been discriminated against has to be over the age of 40 to bring a lawsuit. For Example: A federal court in New York held that a sixty-one-year-old grandmother, who was rejected from a part-time sales job with a GapKids store after a cursory interview, could proceed with her age-discrimination claim against the clothing retailer. The court ruled that the applicant had provided enough evidence that her rejection for a job at the store was a pretext for age discrimination. The manager who interviewed the applicant never advised her of the range of hours available at the store or asked her to clarify her availability. Further, the store was hiring for a variety of hours at the time, and the applicant had stated on her application her availability to work some of those hours.
Nevertheless, age discrimination lawsuits can be a very slippery slope. An employer is allowed to rely on an “experience cap”-the maximum number of prior years’ work experience it wishes an applicant to possess, for example-when screening applicants. However, an applicant may be allowed to proceed with an age discrimination claim if the employer does not strictly adhere to its own stated job requirements.
Employment discrimination is both a legal and a moral issue. An assessment of employment claims that are discriminatory in nature require the skills of properly qualified attorneys. If you believe that you have been discriminated against, you may wish to telephone the Onondaga County Bar Association at 315-471-2667 for a referral to an experienced employment attorney. Just remember, having been fired from a job is not necessarily a form of discrimination nor creates grounds for a lawsuit. Tread cautiously.
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