“Do I have a case of discrimination?”

Question: Hi, Alan.  I work for a large retail corporation with 300 or so stores. Two weeks ago, I was told that my employment was terminated. A week before I came back from a medical leave for stress.

When I came back to work, I was asked to write a statement explaining why I did not want to come back to my current position as Customer Service Clerk. I did not want to write a statement then and there, so I was told that I could go home for the remainder of the day, with pay, and write the statement at home, and bring it with me the next day.

I did make it clear that I would go back to my Customer Service Clerk position, but I had been doing that job for seven years, and felt it was time for advancement. Several years ago I was told by the company CEO that I would move up in the company position-wise and salary-wise, but that never happened.

I am 47 years old, and African American. Looking back, especially concerning specific incidents, I have come to believe that I was unlawfully discriminated against by being denied advancement.

When I returned to work with the statement about why I did not want to return to my Customer Service Clerk position I was given an interview for a lateral position, and an interview for another position that paid less then mine. I was told that I was not going to be offered either position. Then I was made to wait in a waiting room for 8 hours, before being told I was being terminated, and offered a severance package of six months of salary, but no health care benefits.

I spoke with an attorney who told me he thought I had a good case of age discrimination and race discrimination. Please let me know what your thoughts are. Thank you very much.

          Pamela
         Pueblo, Colorado

Answer: Pamela, when people call me or come to my office, and discuss what happened to them, I sometimes spend two hours asking them questions before I reach my conclusions about  whether they have a case of illegal discrimination. From the limited facts you have given me – not your fault, this blog can’t handle long recitations of facts – I really can’t tell whether or not you have a good case of illegal discrimination. However, from the limited facts you have presented to me, I must tell you that I do not see a case of illegal age or race discrimination.

Let me tell you why. Many people think that, because they are a certain religion, age, gender or race, that they are guaranteed promotions and protected from firing; it’s just not true.

Rather, the law requires that employees who feel they have been illegally discriminated against must start by bringing forth what is called a “prima facie” case of discrimination. “Prima facie” is Latin for “on first view,” or “before investigation.” The burden of doing so is not a great burden; only limited facts are needed. Once the employee comes forward with a “prima facie” case of discrimination, the burden shifts, and the employer then has a burden to come forward with a justifiable, non-discriminatory and legal reason for the way the employee was treated.       

For an employee, there are three parts of a “prima facie” case of illegal discrimination:

1. First, Membership in a “Protected Class”: This means that you are in a group of people who have legal protections from illegal discrimination. Your case is fine here: you are (a) older than 40, so in the class of people who are protected from age discrimination, and (b) you are an African American;

2. Second, Negative Employment Action Suffered: This means that you have experienced a denial or loss of a substantial employment-related benefit. Here, too, your case is fine: you have suffered the loss of the ultimate employment-related benefit – your job; and

3. Third, Facts from Which a Discriminatory Motive Can be Inferred: Here is where I am concerned that your case may not rest on solid ground. Though you are over 40 years old, and though you are an African American, you have not described any facts from which I – or a Court – could say “From those facts, it seems to follow that age or race may have been in the minds of the people who did not promote her, or who fired her.”

In your letter to me you did refer to “specific incidents” that make you believe that you were unlawfully discriminated against in being denied advancement. Did your manager tell anyone that he did not like older employees, or made comments about your age or race? Have most promotions gone to less qualified whites or other non-African Americans? Have other older or African American employees won discrimination law suits on the basis of denial of advancement?

Such facts – or ones like them – would satisfy the third requirement of a “prima facie” case of illegal discrimination. If such facts exist in your case – facts from which it could be logically inferred that the motive behind your lack of advancement was age or race – then I would agree that, at least at this point, you have a “good case.” If such facts are not here present, I would not agree.

If you’re interested in writing back through the blog with the additional facts, I’d be happy to, and interested in, completing my analysis.

I hope this helps, I really do. 

       Best, Al Sklover    

© 2010 Alan L. Sklover, All Rights Reserved.