Determining When to File a Discrimination Claim

Last Updated May 2, 2007 7:14 PM EDT

It is unlawful in the United States, under both federal and state law, for an employer to discriminate against a person on the basis of his or her race, national origin, gender, age, sexual orientation, or physical or mental impairment. Everyone has an equal right to employment with fair compensation in a work environment that is free of discrimination.

Antidiscrimination law is a large and evolving area of the law. If you feel you have been discriminated against and are uncertain of your rights or the resources available to you, the following will provide you with the information you need to get started.

What You Need to KnowWhat action should I take if I think that I've been discriminated against based on my ethnic background?

You should act quickly, but you must also document your case carefully. Racial discrimination can be difficult to prove. Ask your human resources department how to file a complaint, and, as soon as possible, start gathering evidence from witnesses to create a record of the incident or incidents. Ask trusted friends, colleagues, and professionals for advice, and explore the possibility of receiving legal assistance. If you belong to a union, it may be a resource. Or you can consult a private attorney. Other resources include the NAACP and the ACLU, both of which are organizations devoted to protecting civil rights. Check to see if they have local chapters in your community.

Recently my boss, who has always been respectful, made an unwelcome sexual advance. Am I able to take action?

You may have grounds for a complaint of sexual harassment after only one incident provided that the incident was sufficiently threatening. However, you may want to first take your complaint to the human resources department or to a trusted superior. Your company may have internal policies that can support or protect you and help to resolve the matter quickly.

If I discover that a colleague receives a much better benefit package than I do, are there grounds for a claim?

Under the provisions of the equal pay law you are entitled to the same benefits, bonuses, pensions, vacation and sick pay as well as salary as your colleague, if you can prove that your job is the same or "substantially equal" to hers, involving the same level of skills and knowledge. However, you will need this proof before you can proceed, so take the time to do your homework first.

What to DoLearn About Equal Pay

The Equal Pay Act, passed in the United States in 1963, prohibits employers from paying unequal wages to men and women who perform the same job, or who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions within the same organization. Proving unequal pay for the same job is relatively easy, but proving "substantially equal" may be more challenging. In these situations, courts have generally agreed that the focus should be on the duties performed, not on the people performing them. For example, the court cannot take into account possession of a skill not required for the particular job. Job titles, descriptions, and classifications, however, may be relevant but are not controlling. Equal pay includes not only wages and salaries, but also bonuses, benefits, overtime, holiday pay, sick pay, performance-related pay, and retirement plans.

Pay discrimination can exist:

  • if a woman is appointed on a lower salary than her male counterparts;
  • if a woman on maternity leave is denied a bonus received by other staff;
  • if the jobs that women occupy are given different job titles and grades from those of male colleagues doing virtually the same work;
  • if all staff are suddenly placed on contract and all previous employee benefits are withdrawn.

To learn more about your rights to equal pay or to find out how to file a charge, see the Equal Employment Opportunity Commission's Web site (given at the end of this checklist), or contact your state's employment department.

Be Aware of Sexual Discrimination Legislation

The Civil Rights Act of 1964 makes it unlawful for employers to discriminate against men or women in respect to employment because of their sex or marital status.

If you were dismissed for poor performance while a colleague of the opposite gender, who performed no better than you, kept his or her job, you may have a claim for sex discrimination. Perhaps you were fired for being persistently late while a colleague of the opposite sex who always arrived at the same time as you was not.

When you do your research, be careful that your own biases and distress at having lost your job do not interfere with your objectivity. You need to show that the criteria used in dismissing you and not the other employee were weighted in favor of the opposite sex and cannot be reasonably justified. You do not want your case dismissed because the facts do not support your claim.

For criminal acts (or "hate crimes"), other laws apply, including the Federal Violence Against Women Act (1994) and the Violent Crime Control and Law Enforcement Act (1994).

Be Aware of Sexual Harassment Laws

Sexual harassment is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964 (amended in 1991). The act also protects gay, lesbian, and transgender individuals, while, in some states, more specific laws dealing with discrimination based on sexual orientation apply. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

In order for you to claim sexual harassment, the incident(s) had to have occurred during "the course of employment"—in other words, at work or a work-related function.

Examples of sexual harassment include:

  • requests or demands for sexual favors by either gender;
  • comments about your appearance which are derisory or demeaning;
  • sexually explicit remarks or jokes which cause offense;
  • intrusive questions or speculations about your sex life;
  • any behaviors related to gender that create an intimidating, hostile, or humiliating work atmosphere

Unlike sexual assault, sexual harassment is not usually considered a criminal offense. However, incidents involving touching or more extreme physical threats are criminal offenses and should be reported to the police.

Know the Law Relating to Discrimination on the Basis of Disability

The Americans with Disabilities Act of 1990 introduced measures aimed at ending the discrimination that many disabled people face. The act prohibits an employer from discriminating against qualified individuals in all areas of employment, including job application procedure, hiring, firing, compensation, promotion, and training

The term "disability" is used to describe anyone with "a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment." This includes:

  • physical impairment (the weakening or adverse change of a part of the body caused through illness, by accident, or from birth);
  • mental impairment (learning disabilities and all recognized mental illnesses).

An employer is required to make "reasonable accommodation" so that qualified employees with disabilities can perform the functions of the jobs for which they were hired. This may include such things as making facilities wheelchair accessible, modifying equipment, and rearranging work schedules.

Be Aware of the Law Relating to Discrimination on the Basis of Age

The Age Discrimination in Employment Act (1967) is designed to protect employees and job applicants who are over the age of 40 from being discriminated against solely because of their age. The law covers hiring, firing, promotion, layoff, compensation, benefits, job assignments, training, and more. The Older Workers Benefit Protection Act (1990), amended the ADEA law to specifically prohibit employers from denying benefits to older employees, but to allow employers to reduce the benefits under limited circumstances.

The ADEA applies to employers with more than 20 employees, including government agencies.

Remember That Employers Cannot Retaliate

It is also illegal for an employer to retaliate against you if you choose to file a discrimination claim, or to retaliate against anyone who helps you by providing evidence or information.

What to AvoidYou Rush to Charge Discrimination

If you can find a way to avoid making a formal charge of discrimination, you would be wise to do so. The process of filing a claim and gathering evidence to support it is lengthy and stressful. If you feel comfortable doing so, speak with the offending party. If you get nowhere, discuss the situation with the human resources department. Your employer will likely make every effort to resolve any problem as quickly as possible to avoid the expense and loss of reputation that comes with having to defend a claim of discrimination.

You Are Unsure of Where You Stand

Before you file a claim of discrimination be sure you have researched all the facts and understood the context in which the behavior took place. Although you will have to speak with your colleagues and perhaps others in the organization to get their views, you should do it confidentially. Calling attention to a situation that does not merit a claim of discrimination could cause a great deal of resentment.

You Think That Being outside Your Workplace Protects You

It is foolish to believe that you will not be accused of sexual harassment if you are socializing with your colleagues away from your workplace. Sexual discrimination is prohibited in a variety of situations related to your employment. If the incident takes place in the context of an event associated with your employment, you can, under certain circumstances, be charged with sexual harassment.

Where to Learn MoreBooks:

Demars, Nan. You Want Me to Do What?: When, Where, and How to Draw the Line at Work. Riverside, NJ: Simon & Schuster, 1998.

Edmunds, Vanessa, et al. Harassment at Work. Bristol: Jordans, 1998.

Florence, Mari, and Ed Fortson. Sex at Work: Attraction, Harassment, Flirtation and Discrimination. Lansdowne, PA: Silver Lake Publishing, 2001.

Ishmael, Angela. Harassment, Bullying and Violence at Work. London: Spiro Press, 1999.

Web Sites:

American Civil Liberties Union: www.aclu.org

Anti Defamation League: www.adl.org

Equal Employment Opportunity Commission: www.eeoc.gov

Global action on ageing: www.globalaging.org/elderrights/world/uklabor.htm

U.S. Department of Labor: www.dol.gov