I often receive calls from potential clients who are confident that they have been victims of discrimination or harassment, or that they have been wrongfully terminated, yet they may not be aware of the legal meanings of those terms. The law protects employees from discrimination and harassment based on Race, Color, Sex, National Origin, Age (over 40), Disability, Pregnancy, and Genetic Information. To be clear, Indiana is an “at will” employment state. That simply means that most of us work at the will of our employers. Stated another way, we can be fired for any reason (or no reason at all) just not a discriminatory reason. For example, there is nothing illegal about an employer firing an employee based on the quality of his or her work. But, it would be illegal to fire an employee based on their race or age, or gender. Rare is the case where an employer will actually say, “I am firing you because you are too old.” Therefore, we might have to infer the reason, based on other factors. Does your boss suggest that you are too old for the job? Do they ask you questions like, “When are you going to retire?” These types of things might suggest that age was a factor in your termination, even though the employer’s stated reason for firing you was because of “poor work performance.”
There are some really good resources available, through the Equal Employment Opportunity Commission (“EEOC”), that explain what is meant by wrongful termination, and how those laws apply to employees. The EEOC is the federal agency that is charged with enforcing anti-discrimination laws in the United States. In fact, most discrimination claims must first be filed with the EEOC before you can file a lawsuit against the employer. This process is known as “exhausting your administrative remedies.” Below are some links to some very useful information as it pertains to different types of Discrimination and Harassment:
Age Discrimination: https://www.eeoc.gov/age-discrimination
Disability Discrimination: https://www.eeoc.gov/disability-discrimination
Race/Color Discrimination: https://www.eeoc.gov/racecolor-discrimination
Sex Discrimination: https://www.eeoc.gov/sex-based-discrimination
Pregnancy Discrimination: https://www.eeoc.gov/pregnancy-discrimination
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. For more information on what constitutes harassment, you can go to the EEOC’s site by clicking the link below:
Another type of prohibited activity is Retaliation. To be illegal, the retaliation in the employment context must be related to a “protected activity.” For example, if you complained to your Human Resources department that you were being discriminated against based on sex, and then you were immediately fired for engaging in that protected activity, that would be considered retaliation. Below is some useful information to help you understand what types of retaliation are prohibited by employers: https://www.eeoc.gov/retaliation
Lastly, we often get calls about how to collect unpaid wages. If the amount is less than $6,000, the best way to collect those wages is by filing an Online Wage Claim with the Indiana Department of Labor (“IDOL”). Below is a link to the IDOL’s Online Wage Claim Form along with instructions for how to proceed. It the amount is greater than $6,000, we suggest that call us for a free consultation with one of our attorneys that is familiar with Indiana’s Wage Claim and Wage Payment Statutes.
Indiana Department of Labor Online Wage Claim Form: https://www.in.gov/dol/2734.htm
As always, contact me – Chip Clark – if you need representation or advice on any of these subjects.
The Equal Employment Opportunity Commission (EEOC) issued a Resolution mourning the deaths of George Floyd, Breonna Taylor and Ahmaud Arbery last week. In the resolution, the EEOC committed the agency to redouble its efforts to address institutionalized racism, advance justice, and foster equal opportunity in the workplace.
The EEOC advances opportunity in the workplace by enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.
The anti-discrimination laws provide a limited amount of time to file a charge of discrimination. In general, a person needs to file a charge within 180 calendar days from the day the discrimination took place. The 180-calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.
If you have questions related to employment discrimination, harassment, or retaliation, please feel free to contact Goodin Abernathy.
If an employer has discriminated against you because of your special needs, he or she is may be violating federal law as well as state and local laws.
In 1990, Congress passed a piece of civil rights legislation called the Americans With Disabilities Act (ADA). Title 1 of this legislation specifically prohibits workplace discrimination against individuals with disabilities. Such prohibitions apply to any business that has 15 or more employees on its payroll. The ADA also offers protection to individuals such as spouses or parents who may be subject to bias on the basis of a close relationship to a person with a disability.
Four other federal laws also specify protections for psychologically or physically challenged individuals:
The Rehabilitation Act
Section 501 of the Rehabilitation Act prohibits disability-related bias by federal employers and mandates affirmative action programs that will increase the number of employees with disabilities in federal workplaces.
The Workforce Innovation and Opportunity Act (WIOA)
Section 188 of the WIOA prohibits disability-related bias on the part of any employers who receive financial or programmatic assistance under the terms of the WIOA.
The Civil Service Reform Act (CSRA)
The CSRA contains language that stipulates against disability-related bias that targets both Civil Service employees and prospective employees.
Additionally, all 50 states have laws in place that prohibit workplace bias against individuals with disabilities though in some states, these laws only pertain to workplace discrimination on the part of public employers.
What Is a Disability?
The ADA doesn’t contain language that categorizes all the physical and psychological conditions that constitute disabilities. Instead, the ADA imposes a standard: If a condition has a negative effect on an individual’s ability to carry out the routine activities of daily life, then it constitutes a disability.
The ADA’s definition includes people who’ve been impaired in the past even though they may not be impaired when they’re employed or when they apply for employment. The ADA’s definition also includes people who are able to carry out major life activities but who are affected by a condition that is typically classified as a disability. Disabilities also include injuries that may prevent employees from working in their customary capacity for a limited amount of time.
The ADA requires employers to make “reasonable accommodations” to either job duties or to the layout of a workplace that will enable an employee with special needs to do his or her job adequately. What might these accommodations reasonably include? Here are a few possibilities:
• Physical modifications such as raising or lowering the height of desks for people in wheelchairs or installing screen magnifiers on computers that are used by individuals with visual impairments.
• Moving a workstation closer to a restroom for a worker whose disability includes bladder or bowel control issues.
• Allowing a more flexible work schedule and use of leave time so that a worker can pursue medical treatments. This accommodation may also require granting additional amounts of unpaid leave time.
Under the ADA, however, employers are not required to make particular accommodations for physically disabled workers if those accommodations would impose “undue hardship.” The burden of proof will be on employers to prove that an accommodation an employee has asked for is too costly or too disruptive to be implemented. Both courts and the U.S. Equal Employment Opportunity Commission (EEOC) , which is the federal agency charged with enforcing ADA compliance, will look at a variety of factors here, including potential tax credits and the disabled employee’s own willingness to supply the accommodation or to pay for its costs.
Harassment is considered to be a type of bias whether or not an individual is affected by a disability. The ADA has language that prohibits harassment as does the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.
In its broadest sense, harassment is any unwelcome conduct that’s instigated by an individual’s race, color, sex, age, religion, place of national origin or disability. However, not every offensive remark constitutes unlawful harassment. In order to meet that standard, the offensive conduct must be a condition of continuing employment, or it must also create a workplace that a “reasonable person” would consider hostile or intimidating.
The harassing individual can be anyone who is connected with a workplace, including a company’s owner, its managers, its employees, its independent contractors or even individuals who are not employees as might be the case with a vendor who delivers inventory on a regular basis. A harassment victim doesn’t have to be the individual who’s actually subject to unpleasant behavior, either; he or she can be someone who overhears the harassment and is deeply affected by it.
Employers are liable for harassment on the part of employees over whom employers have control. They’re also liable for harassing behaviors on the part of supervisors particularly if that harassment has negative implications for employment unless employers can prove either that they tried to correct the harassing behaviors or that the employee reporting the harassment did not take advantage of corrective opportunities offered by the employer.
Protect Your Rights
If you’re experiencing an unfair workplace situation that’s related to your disability, you have legal rights, and an experienced attorney can help you protect those rights. You are looking at tight statutes of limitations, so it’s important to contact a lawyer as soon as possible. In most instances, you will need to file a charge with the EEOC within 180 calendar days of the time you were refused accommodation or were subjected to harassment. (If you’re a federal employee, that statute of limitation is only 45 days.)
A discrimination attorney can evaluate your situation and help you decide whether or not your case is worth pursuing. These claims can be difficult to prove without concrete evidence of an employer’s bias, so it’s important to work with a legal professional who can help you compile the necessary evidence. An attorney can help you negotiate with your employer to get the accommodations that are your right. In worst-case situations, if your employer isn’t willing to make the accommodations that would help you keep your job, a lawyer may be able to help you receive compensation for your employer’s unlawful actions.