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.

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.