“Discrimination is a disease.”
- Roger Staubach
ACTUAL “CASE HISTORIES”: For over 14 years, Janine enjoyed her work at a Seattle children’s museum as Curator of its antique toy collection. She was known internationally for her expertise in antique toys, and for her leadership in gaining respect for antique toys as a proper pursuit for museums. She was highly admired among museums, collectors and auction houses, alike. In fact, at 73 years of age, she was sort of the “Queen of Antique Toys” among museum professionals.
A new Museum Director was appointed and publicly mandated to “Bring in Fresh Air” to the museum. Shortly after the new Museum Director started, Janine made sure to introduce herself, and soon invited the new Museum Director to lunch. Though the new Museum Director never responded to Janine’s invitation, Janine simply dismissed the lack of response to the new Director’s undoubtedly busy schedule.
When Janine was not invited to the first Staff Meeting with the new Museum Director, she thought it odd. When one-third of Janine’s staff members were reassigned to another department, she had an uneasy feeling in her stomach. When Janine was the only employee asked to take a salary reduction, she became quite alarmed.
After almost a year of missed invitations, public humiliations, and then staff and salary reductions, Janine started losing sleep, losing her appetite and almost dreading getting out of bed each morning. On the advice of a friend, Janine called our firm for a telephone consultation. “What could it be?” “What does this portend?” and “How should I respond?” were just a few of Janine’s urgent questions.
When clients call our firm for a consultation, we spend at least one half of our time during the consultation asking questions. That is because, though we know the law, we don’t know the facts, and often we don’t know the client very well, either. Good advice cannot be given without comprehensive knowledge of both the facts and the person. It is analogous to a physician: while he or she may know a medical specialty quite comprehensively, that does not mean much without his or her being familiar with the patient’s blood tests, x-rays, family history, etc., and the patient as a person, as well.
We learned that Janine had not engaged in any kind of misconduct. We also learned that her performance reviews for the past 14 years had all “exceeded expectations.” She could not think of any valid reason for the way she was being treated until, that is, we started asking her questions.
Though not directly, our questions examined what possible motivations could the new Museum Director have to treat Janine like a third-class citizen, if not worse. Some of those motivations might not be nice, but that does not mean they are necessarily illegal, such as (a) a purely personal dislike, (b) concern that the employee is paid too much, or (c) a desire to hire a friend instead. All of those are legally valid – though some might say quite unfair – reasons to terminate a person’s employment. We asked Janine a whole list of questions. Some of them included the following:
–“Did the new Museum Director ever use words and phrases like ‘old timers,’ ‘antiques,’ ‘dinosaurs,’ ‘older generation’ or similarly dismissive words and phrases when describing older people?” Her answer was “Yes.”
–“Did the new Museum Director seem to have less patience with older employees, or judge older employees more harshly than she did younger employees?” Her answer was “Yes.”
–“Did the new Museum Director ever ask you, or other older employees ‘So, when are you going to retire?’” Her answer was “Yes.”
–“Did the new Museum Director use words and phrases like ‘fresh faces,’ ‘new blood,’ and ‘new ideas’ to describe people she wanted to hire or promote?” Her answer was “Yes.”
–“Did the new Director seem to be more comfortable in the presence of younger employees versus older employees? Her answer was “Yes.”
Other questions, and other answers, soon followed, many of which indicated to us that what was happening to Janine may well have been derived from illegal age discrimination.
(You may note that we did not ask Janine the age of the new Museum Director, because anyone can discriminate against anyone, regardless of their own age, gender, race, etc.)
Initially, Janine was skeptical, in large part because she did not consider herself “old.” Her thought was “If I don’t consider myself ‘old,’ then how could other people?” Over time, though, Janine admitted that age discrimination did, in fact, seem like the most obvious explanation for her new difficulties.
Janine expressed surprise that, in just 45 minutes or so, we were able to come to a “tentative diagnosis” of her problem at work. It is not that we are clairvoyant, or really good guessers. It is just a matter of our knowledge of the law, our experience in these situations, and our reflections on how people and organizations often think and act.
In this case we did seem to be correct, as within 18 months of the Director’s arrival, 85% of the museum’s workforce aged over 45 years of age was, for one reason or another, no longer working there. Almost overnight, the average age of the museum’s employees dropped from 49 to 34, a rather stark difference.
LESSON TO LEARN: Like it or not, we all discriminate in certain ways, most of which are entirely legal. It is legal to decide to eat only Russian food. It is legal to decide to use only Hindu lawyers. It is legal to decide to have friendships only with African Americans. But in employment matters, U.S. Federal law, and the law of all of the 50 United States, prohibit discrimination in decisions about, and the terms and conditions of, employment based on, among others, age, gender, race, religion, national origin, pregnancy, disability, and with increasing frequency sexual preference. Decisions about who to hire, who to promote, who to give raises or bonuses to, who to layoff, and who to fire, may not be made with these characteristics in mind.
So, how do you know if you have been a victim of illegal discrimination? For sure, you cannot look into a person’s brain and decide what he or she is thinking when they make an employment decision. In fact, people may be illegally discriminating without even being aware of it. There are, though, certain things that indicate whether or not an employer is making decisions in an illegally discriminatory manner.
You can never be sure if a motivation to hire, promote, compensate or fire was made on the basis of illegal discrimination. But there are effective ways to help you decide, and to reach a sound conclusion. They are the things lawyers, Judges and juries look for. Here are the most common.
WHAT YOU CAN DO: If you feel that you are not being treated fairly at work, and wonder whether it might be due to illegal discrimination, ponder these 16 thoughts:
1. First, are you a member of what is called a “protected class?” Fair or not, it is entirely legal to “discriminate” against bald people, short people, people with dimples, lazy people, and people we don’t like, too. However, historically, we have seen more frequent and more damaging discrimination against people based on certain characteristics, and so we have made workplace discrimination against people based on those characteristics to be illegal. If one or more of these characteristics applies to you or your circumstances, then you can claim membership in what is called a “protected class.”
Though U.S. Federal, State and local laws differ somewhat as to who they consider to be in a “protected class,” these are the basic “characteristics” protected by most workplace-discrimination laws: anyone discriminated against based on (a) age: (over 40 for U.S. federal law); (b) gender; (c) race/color; (d) disability; (e) religion; (f) national origin; (g) pregnancy; and, (h) in some states and cities, sexual preference and HIV status.
Being a person of “usual majority,” that is, male, Christian and Caucasian, does not necessarily mean that, regardless of the circumstances, you are not in a “protected class.” Recently, we dealt with a law firm that was comprised of 9 partners, 12 associates, four administrators, and six clerical staff – all women. If a qualified male applied for a job in that law firm and was denied the position given to a woman, the male job applicant would have a very good basis in both the law and common sense to claim illegal employment discrimination was the reason. Really, now: could 31 out of 31 employees in one company being the same gender be a coincidence? Highly, highly doubtful. You decide.
The law is clear: if you do not fit into the “protected classes” affected by the conduct in question, then the workplace discrimination law does not protect you. For example, if you are of Irish ancestry, and it is open and obvious that your employer refuses to hire people of Polish ancestry, you have no legal claim for discrimination.
2. Are you certain your employer is aware of your being in a “protected class?” There are some occasions in which your employer may not have known of your membership in a “protected class.” As examples, it may not be known that you are a Christian, Hispanic, pregnant, or over 40 years of age. On the other hand, it would be hard to imagine that your employer would not know that you were (a) female, (b) wheelchair-bound, or (c) nine months pregnant. If your “protected class” status is not known to your employer, then the law says that the workplace discrimination you believe you have suffered gives you no legal claim.
3. Have you been subject to words or actions of indignity, humiliation or disparagement related in some fashion to your being a member of a protected class? The first and foremost telltale sign of illegal discrimination is the use, or condoning of the use, of language or images in the workplace that are considered an indignity, humiliation, degradation or disparagement to a “protected class.” In one case we were involved with, the employer permitted very racially offensive signs to be placed in the workplace, and even did nothing for six months when a noose was displayed in a public area of the workplace, a very provocative – near incendiary – symbol of racial hatred and discrimination. .
4. Have you been denied a job, despite being qualified for it, which was given to a person not among your “protected class?” Not being hired for a job based on your membership in a “protected class” can be one of the most discouraging experiences of illegal discrimination, because it is so hard to establish. If you are qualified, and especially if you learn that a person not in your “protected class” and less or not qualified was hired, it seems likely you have been illegally discriminated against at work. Another way to establish workplace discrimination in hiring is to determine the relative presence of your “protected class.” For example, it would at the very least be suspect if a company in New York City that employed 100 people did not have at least a reasonable percentage of women, racial minorities, all religions, disabled people, and employees over the age of 50 or even 60.
5. Have you been repeatedly passed over for promotion despite having the qualifications for the job? Quite often being passed over for promotions time and again leads an employee to ask, “What is getting in the way of my advancement?” Before raising the issue of discrimination, it may be wise to ask that question, in a respectful and non-accusatory email to your supervisor or Human Resources representative, to make sure there is nothing in your power to correct, improve or enhance, of which you were unaware.
6. Do you have reason to believe that members of your “protected class” are not compensated as well as others? Statistically speaking, it is a many-times proven fact that one “protected class” or another – as examples, women and certain racial minorities – are often paid less than their male and Caucasian colleagues. While this often seems to take place over time, and without intention, that does not diminish the fact or the effect of illegal discrimination.
7. Have you not been invited to meetings, events or gatherings that were in some fashion company-sponsored or company-related? Being excluded from work-related social events denies people the opportunity to informally build valuable career-enhancing relationships. While everyone is entitled to pick and choose among their friends and houseguests, denying colleagues invitations to golf outings, off-site conferences, and trade shows without good reason has been held to indicate illegal discrimination at work.
8. Have you noticed that members of your protected class are generally not among higher levels of authority where you work? When clients in the most commonly raised “protected classes” (women, racial minorities, and older people) come to us concerned about lack of advancement, one of the first things we do is review the employer’s website. You simply would not believe how obvious it can be, simply from the faces and names of the executives and managers shown on the company website that diversity is absent from the company’s top levels of management.
9. Are those in your “protected class” not made aware of potential promotion opportunities or paths to advancement? There is a very good reason the name of the U.S. federal agency that enforces workplace discrimination laws is called the “Equal Employment Opportunity Commission, or EEOC.” That is because “employment opportunity” is all the law provides; if that is guaranteed, then success is up to each individual’s initiative and perseverance. No one can be considered to enjoy “opportunity” for advancement if they are denied knowledge of job openings, training programs, or promotion possibilities.
10. Do those in your “protected class” seem to be given lesser resources to accomplish their workplace goals than are others? A long time ago, one group of people complained to their employer that they just could not make bricks without straw, and for this reason could not be responsible if the pyramids did not get built. Whether by design or otherwise, sometimes one group of people are given more resources – such as more staff, larger travel-and-entertainment allowances, or even more time to reach goals – than others. Of course, with greater resources at hand, it makes it that much more likely that the employees given greater resources will be more successful in “building the pyramids,” and then as a result receive better bonuses, promotions and the like. Disparate resources is a common form of disparate – and illegally discriminatory – treatment.
11. Does it seem to you that those of your “protected class” are evaluated more harshly than are others? If you’ve got brothers and sisters, you’ve probably seen this dynamic play out at home: Mary is yelled at if she gets B’s on her report card, while Bobby is almost congratulated for his C’s. Huh? It’s a matter of different expectations, and expectations are often self-fulfilling prophecies. While there is no law forbidding expecting daughters to get better grades than sons do, there are strict laws forbidding harsher evaluations of, for example, women than men.
12. Are members of your “protected class” disciplined more strictly than others? Think about it: if you were in charge of a project, is it possible that you would give a good friend a second chance if he or she broke the rules, possibly more likely than you would give a second chance to a stranger? Of course that is more likely. Well, bear in mind that people often feel a bit closer with “those of their own kind,” and in this way discipline more harshly or with less forgiveness those who are “not of their own kind.” If based on others’ status as a member or a non-member of a “protected class,” then that is an illegal workplace discrimination.
13. Are words of exclusion, such as “you people,” “your kind,” “you folks,” “our people,” “our crowd,” and “those of us who . . .” used in regard to your “protected class?” I must admit it: at a recent dinner with a group of friends from a different country, whose culture is different from my own, and whose first language is not English, I used the term “you people,” and could see alienation reflected in the eyes of the person sitting next to me. Did I intend to separate “them” from “us”? No, but in my use of that term, I sure made them feel excluded, that’s for sure. Such phrases do exclude others from “our team,” and make them feel excluded. Have no doubt about that.
14. Have you been given false (or incredible) reasons when you have questioned any of the above circumstances? There’s an old saying in legal circles: “The best proof of the crime is the cover up.” Said a bit differently, if a person did not commit the bank robbery, why would that person lie about were they were on the day of the holdup? This common-sense lesson is not lost on those who work to investigate and resolve workplace discrimination disputes. It is for this reason that the law says that, “If a false reason is given for what has happened, then that fact, alone, constitutes proof of a discriminatory reason.” After all, if you didn’t do the “crime,” what would you attempt the “cover up?”
15. Is it likely that any unequal treatment you have experienced has a “valid business purpose?” The law does not guarantee equal treatment of all people because, to be frank, not all people deserve to be treated equally. For example, one person who works incredibly hard is more worthy of a bonus than another person who is very lazy. In this example, there is a good business purpose for paying the hard worker better than the lazy worker, whatever may be their gender, race, age, disability, religion, etc. So, if you (a) are a member of a “protected class,” and have been treated less favorably than a person not in your “protected class” BUT (b) there is a good business reason for that unequal treatment, no illegal discrimination has taken place.
It is for this reason that anyone who feels they have been treated unfairly at work, when compared to the treatment afforded others, must first consider the possible existence of a “valid business purpose.” Indeed, you can be quite confident that, if an employer is confronted with a claim of unequal or “disparate” treatment, it will allege the existence of valid business purpose for that difference. (As noted above, if the alleged “valid business purpose” offered by the employer for unequal or disparate treatment turns out to be untrue, that, in itself, is considered proof of a discriminatory motivation.)
Incidentally, there is no valid business purpose for (a) words or actions of indignity, or (b) words or actions of exclusion. None. Period.
16. If the “decision maker” you are concerned about is the same person who made the decision to hire you, any claim for illegal workplace discrimination will probably fail. Imagine the following: Salvatore is 59 years old when he is hired by Addison. The next year, Addison fires Salvatore. Can Salvatore claim illegal age discrimination? No, because – as simple common sense would tell us – if Addison disliked Salvatore’s being 60 years of age, she surely would not have hired him when he was 59, either. This is referred to as the “same actor theory,” and generally defeats any claim of illegal discrimination at work.
After careful consideration of these 16 thoughts on illegal workplace discrimination, and sober consideration given to the possible risks and rewards of making a complaint or objection regarding discrimination at work, you may want to obtain one of our Model Memos for Filing a Claim of Discrimination on the basis of Age, Gender, Race or Disability, for your adaptation and use in doing so. If interested in obtaining a Model Letter that shows you “What to Say, and How to Say It™,” just [ click here. ]
These 16 thoughts about Illegal Workplace Discrimination should be of great help to you in considering what so many people ponder when not treated fairly or civilly at work: “Could this be illegal workplace discrimination?” As you might imagine, if two, three, four or five of the above indicators of illegal workplace discrimination are present in your circumstances, that makes your conclusion that illegal discrimination exists that much stronger. At the same time, it is essential that you consider those factors that would defeat a claim of discrimination, as well. No one factor is determinative; all must be considered together. It is by correct information and wise judgment that you can best protect yourself. Protecting yourself, by information and insight: that’s what Sklover Working Wisdom™ is all about.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you, and know what to “watch out” for. Regarding “Might this be illegal workplace discrimination?”, these are the essentials you need to know. Now the rest is up to you.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ and Sklover’s Negotiating for Yourself at Work™ are trademarked newsletter publications of Alan L. Sklover, of Sklover & Donath, LLC, a law firm dedicated to the counsel and representation of executives in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that our attorneys are admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, we retain the assistance of local counsel and/or obtain permission of local courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Donath, LLC, 10 Rockefeller Plaza, New York, New York 10020 (212) 757-5000.
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