Archive for the ‘Employment Discrimination’ Category

Understanding the Fundamentals of Employment Discrimination

Tuesday, May 8th, 2012

Obviously, employment discrimination cases are much more complex than what can be outlined here, but a lot of misinformation and misconceptions exist about employment discrimination.  The purpose of this post is simply to outline some of the most basic elements of employment discrimination law.

Discrimination is only illegal if it is based on membership in a protected class.  The main protected classes are as follows, but there can be some variation by state or even city:

  • Race
  • Color
  • Sex
  • Religion
  • National Origin
  • Disability
  • Age
  • Citizenship
  • Genetic Information (new)

There are two basic types of discrimination:

Disparate Impact.  Treating people exactly the same can be discrimination!  To prove that disparate impact discrimination has occurred, the following must be shown:

  • Proof that practice limits employment of protected class
  • Employer must prove that test or policy is for a job related business necessity.
  • Employee must prove that a less restrictive alternative exists.

Example:    Fire department hiring new firefighters.  To be eligible, all applicants must take a physical strength and agility test by running an obstacle course where they drag hoses, climb ladders and chop down doors.  6 out of 10 men pass the test, but only 2 out of 10 women pass it.

Disparate Treatment.  This is the type of discrimination most people think of when discrimination is discussed.  It is treating people differently based on their protected class status.  To prove disparate treatment discrimination has occurred in hiring, the following must be shown:

  • Member of a protected group; and
  • Applied for and was qualified for job; and
  • Was denied employment; and
  • After denial of employment, employer continued to seek applications.

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Use of Injunctions to Enforce Non-Compete Agreements

Tuesday, May 8th, 2012

Injunctions may be used to enforce a variety of rights, including rights under a non-compete, non-disclosure, non-solicitation or similar types of agreements, particularly those related to unfair trade or business practices or involving trade secrets.

By far the most common use of an injunction in those situation is for an employer to attempt block subsequent employment by one of its current or former employees by an employer when it believes that employment violates such an agreement. However, most employees don’t realize that it is also possible for them to seek injunctions against their current or former employers to stop them from interfering with employment by a new employer in the right circumstances.

Injunction cases are very heavily fact-dependent, and injunction law varies from state to state, and those variations can be significant.  Further, judges have considerable discretion in how they handle injunction cases, and two judges may approach the same case differently.  The purpose section is to explain only in very broad terms what an injunction is and the basic procedures that are used in obtaining one.

An injunction is essentially designed to prevent a harm from occurring which would be difficult or impossible to remedy through payment of damages or through some other legal remedy. Injunctive relief is to prevent future wrongdoing, not to remedy past wrongs.  Injunctions are considered “equitable” remedies rather than legal remedies, and therefore use different standards.

The litigation of restraining orders and injunctions can be a time pressured process involving many of the same considerations as a trial on the merits. An injunction may either compel or prohibit a party’s future action.  There are three primary phases in the injunction proceedings, though in some circumstances different phases may be combined or omitted:

1.    Temporary restraining order;

2.    Preliminary or temporary injunction; and,

3.    Permanent injunction.

In some states, a temporary restraining order may be issued without notice to the other side and without a hearing, while other states require a hearing before issuing a temporary restraining order. The temporary restraining order and temporary or preliminary injunctions are temporary orders, while the permanent injunction is a permanent order going forward.

Also, in some cases it is necessary to post a bond before the temporary restraining order will be issued.  In some circumstance the requirement to post a bond may be waived.  The purpose of the bond is to pay damages to the party restrained or enjoined in the event it is determined that the restraining order or injunction was wrongfully issued.

The party moving for a restraining order must show that they are entitled to the relief requested, that they would be caused “irreparable” harm, and that there is no adequate remedy at law to address the injury . An applicant for a temporary or permanent injunction must generally establish a that there is a substantial likelihood of prevailing on the merits.  These requirements can require an extensive analysis that is beyond the scope of this section, but it would be a big mistake to simply assume that a party does, or does not, meet these requirements until that analysis is done.

The process for obtaining a restraining order or injunction is started by filing the appropriate pleading in the right court.  A temporary restraining order issued without notice to the other side is called an ex parte restraining order.  An ex parte restraining order may be issued by the court immediately in those instances where a hearing is not required, but courts have considerable discretion in that regard.  If the court chooses not to issue an ex parte restraining order, the court will normally set a hearing very quickly.  Sometimes when a hearing is held, the court will issue a temporary injunction rather than a temporary restraining order, with the difference being that temporary injunctions are ordinarily longer in duration than a temporary restraining order, and can last the duration of the case until a permanent injunction is issued or denied.

The issuance of a temporary (sometimes also called preliminary) or permanent injunction may each require a separate hearing.  Each hearing held (whether it’s for a temporary restraining order, temporary injunction or permanent injunction) is essentially a mini-trial  with evidence presented in the form witness and documents.  Discovery is conducted as with any other type of litigation, though the time frames for completing this discovery can be greatly accelerated in some circumstances.

Because of how fact-specific these cases are and because of the variations in the law between different jurisdictions, the ability to obtain a restraining order or injunction can only be determined by an attorney with knowledge and experience in this area of the law.  There is considerable misinformation among the general public about temporary restraining orders and injunctions, and it should never be assumed that a party can, or cannot, obtain an injunction (or defend against one) until this review has been done.

Posted in Contracts & Agreements, Employment Discrimination, Non-Compete Agreements, Uncategorized | Comments Off

Could You Be Fired Due to Pregnancy?

Friday, April 20th, 2012

It is the urge of most women to want to share the good news of a pregnancy with co-workers and even the boss however in many instances it can be a better idea to keep the news out of your office until you have a good understanding of your rights. The Pregnancy Discrimination Act of 1978 (which was an amendment to Title VII of the 1964 Civil Rights Act) provides that: an employer may not refuse to hire a woman due to her pregnancy, that pregnant employees must be allowed to work for the period of time in which they are fully able to perform their jobs and that discrimination on the basis of pregnancy, childbirth or medical conditions which are related to pregnancy or childbirth is not permitted.

How Common is Discrimination for Pregnancy?

Although this surely sounds as though pregnant workers are fully covered against discrimination, the truth is that discrimination is fairly common. The fact that pregnancy discrimination claims have risen steadily over the past decade—at a much faster rates than other types of discrimination claims—is proof that pregnant women have been the victims of unlawful treatment in the workplace. In fact the number of pregnancy discrimination charges filed with the EEOC is up over 50%. Since women make up over half of today’s workforce and because 85% of working women will become mothers during their working life, discrimination against pregnant women, while illegal, is certainly alive and well.

California’s Protection for Expectant Mothers

Unlike many other states California has gone the extra mile to protect pregnant workers with a law on the books which mandates that an employee at a business with more than fifty workers is entitled to 12 weeks of unpaid, job-protected leave each year to care for a new baby or a child who is ill or has a serious disability. The only qualification is that the employee must have worked at least 1250 hours in the past year. Further, the states Fair Employment and Housing laws require employers to offer reasonable accommodations for pregnant employees such as a limit on lifting heavy objects or frequent restroom breaks. Other states are not as progressive as California however pregnant women are nonetheless protected against the more obvious forms of discrimination.

Various Forms of Pregnancy Discrimination

There are many different forms of discrimination against pregnant women—in some cases supervisors will be somewhat subtle, giving expectant mother’s assignments which are next to impossible for them to accomplish, in hopes they will simply resign. Many bosses will fire a pregnant worker under guise of another reason which won’t get them sued, making discrimination charges harder to prove.  Many women who innocently disclosed a pregnancy during a job interview were passed over for employment, again, a charge which can be hard to back up. Of course some employers are blatant in their discrimination, refusing to allow a new mother to breastfeed at work, refusing any maternal leave or firing a pregnant employee stating the employee is unable to perform the regular duties of the job. Low income women are especially vulnerable to such acts of discrimination as employers recognize they may not be able to afford an attorney so feel they are above the law.

What Should You Do If You Feel You Have Been Discriminated Against?

If you feel you are being discriminated against due to your pregnancy it is very important that you keep very careful notes and records of all instances of such discrimination. Once you have documented the discrimination, tell your manager what is happening via a written account and verbally. Make sure you keep copies of everything you submit to your manager. Your employer is mandated under the law to protect you from pregnancy discrimination—if it is your manager who is participating in discrimination, move up the food chain and talk to someone higher in your organization. If there are any witnesses to the discrimination get statements from them making sure to record the time date and location of each incident. It is a good idea at this point to get solid legal advice from an experienced attorney so you will be fully aware of your future options.

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An Important Note About Employment Discrimination and Sexual Harassment Case Procedures

Friday, January 14th, 2011

Employment discrimination cases are cases where the discrimination is based on the protected classes of race, sex, age, religion, disability, national origin or citizenship, including sexual harassment, racial harassment and other forms of harassment based on those same protected classes.  These cases cannot be filed directly in court.  They are first required to be filed in one of the appropriate investigative agencies.  Under federal law, that agency is the Equal Employment Opportunity Commission (EEOC).  Under Kansas state law, it is the Kansas Human Rights Commission (KHRC) and under Missouri state law it is the Missouri Commission on Human Rights.  The state agencies operate under a “work sharing” agreement through which cases may be dual filed in both the EEOC and the appropriate state agency.

These agencies conduct investigations, including interviewing witnesses and gathering documents.  Because information resulting from those investigations can be used later in court, it is strongly advised that any party to an agency proceeding be represented by an attorney, regardless of whether they are the employee or employer.  If a party proceeds without legal representation, mistakes can be made in the agency proceeding that may not be able to be fixed later.  This could result in the loss of claims or defenses later in court or making a bad decision regarding settlement during the agency proceeding.  Employees seeking to file such a claim should consult an attorney before they file their claim.

It is critically important to understand that these agencies are investigative agencies only. They do not have the power to independently issue orders or similar actions like some other government agencies do..  However, in some circumstances they may file suit in court like any other party.

For the purposes of the rest of this discussion, we will focus on the EEOC, which governs federal law.

When a case is filed with the EEOC, it will first be referred to the mediation division.  This occurs before any investigation has occurred.  A case will proceed to mediation only if both parties agree to mediate.  If they do agree, then a specially-trained mediator will be assigned to mediate the case and help the parties attempt to settle or otherwise resolve the case.

Mediation is a process designed to help the parties reach an agreement.  A case is settled only by agreement of both of the parties.  The mediator has no authority to “make” someone settle a case.  A mediator’s job is to help the parties reach that agreement, if possible.  If the case settles at mediation, that ends the case.

If the parties don’t agree to mediate, or the case doesn’t settle at mediation if they did agree to mediate, the case proceeds on to investigation.  An investigator will be assigned who will interview the parties, request documents and gather the facts.  Once the investigation is completed, the investigator will usually issue a finding and close the file.  Sometimes the investigator will issue an “administrative closure” which means the agency closes to file without issuing any findings.

Regardless of how the case is closed, the investigator issues a “right to sue” letter.  A “right to sue” letter is required to be able to file a lawsuit in state or federal court.  It tells the court that you have first been through the agency proceeding as required.

From there, employment discrimination cases proceed as any other case filed in court.

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