Published on March 24th, 2015 by Alan L. Sklover
“The moment a little boy is concerned with which is a jay and which is a sparrow, he can no longer hear birds sing.”
– Eric Berne
ACTUAL “CASE HISTORIES”: One of the questions most frequently asked of employment lawyers – and of this blog – is this: “Do I have a strong employment discrimination case?” The reason seems obvious: so many people feel aggrieved at work, and so many people feel that, just maybe, the cause of the problem is “something” about them. What “something?” Perhaps their (a) age, (b) race, (c) gender, (d) disability, (e) pregnancy, (f) religion, (g) sexual orientation, (h) national origin, (i) genetic background, or other “protected classification” under federal, state and local laws.
To answer that question takes familiarity with the facts of the possible claim. Just as a doctor can know all there is to know about medicine, he or she cannot make a good diagnosis without knowing the patient. That takes blood tests, ex-rays, and the like. So, too, it is with lawyers: the “facts” of the case make it a strong case or a weak case. But you may not be a lawyer. Do you need a lawyer to decide if your employment discrimination case is strong or weak? Not in my opinion. Why not?
You know best the facts, events and circumstances of what happened to you, and how it compares with what happened to others. You know best the individuals concerned, and have a good sense of their intentions toward you. You know best the demographic makeup of those you work for and work with. All you need is a way to put those facts, events and circumstances into a framework of understanding. You can, with the right tools, determine whether you have a strong discrimination case.
And, so, in this newsletter we provide you with the way to determine – yourself – whether you have a strong case of discrimination in the way you are treated in your workplace. Here are the tools you need.
LESSON TO LEARN: Employment discrimination cases are quite common in our society, and seemingly more common as time goes by. That seems to be a result of three phenomena: (i) a strong societal determination to make employment opportunity a “level playing field” so that no one is excluded or given less a chance than others; (ii) a rather wide-ranging set of federal, state and municipal laws that make it fairly easy to raise a discrimination claim or legal case; and (iii) increasingly tough competition among employees for a limited number of jobs.
In very general terms, the law is comprised of (a) a set of rules, (b) nearly always borne of common experience and common sense, (c) intended to encourage us all to be honest and fair to each other. What many lawyers would have you believe – namely, that the law is (i) hugely complicated, (ii) incapable of being understood by most people, and (iii) warrants being paid a lot of money for sharing how it works – is just not true. To the contrary, there is a lot you can do for yourself.
This is especially important regarding employment discrimination law, because so many people have daily concerns about it, and have a yearning to understand it. And, too, because so many people unwittingly bring forth weak employment discrimination claims and cases, often with the encouragement of lawyers. So, in this newsletter we do our best to help. It’s better to know you have a strong employment discrimination case – or a weak one – before you raise a claim or hire an attorney.
Here’s how you can do that.
WHAT YOU CAN DO: If you want a good idea of whether you have a strong employment discrimination case or claim, here is how you can help yourself make that determination:
I. Does your case have the “elements” of illegal discrimination?
a. What do we mean by “elements” of a case?: In any legal claim or case, we must establish that certain things took place to win the case. Lawyers and Judges commonly call these “elements.” For the moment, think of an “element” as a conclusion built by facts, events and circumstances.
Here is an illustration unrelated to discrimination law, but that might help you understand what is meant by an “element.” Suppose you agreed to sell a horse to a farmer for $100, you then gave the horse to the farmer, but she did not hand you the $100, and walked away, with the horse. You’d surely feel that she did not keep up her end of the “bargain” and would likely want to sue her to get the $100 back.
In law, that would be considered a “breach of contract” claim, and you would need to establish three “elements” to win your case: (1) that you had an agreement with the farmer to sell the horse for $100, (2) that you fulfilled your end of the “bargain,” and (3) that she did not fulfill her end of the “bargain.” If you could easily establish each of those three “elements,” you would surely have a strong case of breach of contract, and likely win your case in Court. On the other hand, if you would have a difficult time establishing these three “elements,” you would have a “weak” case for breach of contract.
In the “horse” case above, if the other farmer was your daughter, and she claimed the horse was a birthday present to her, you’d have to convince a Judge or Jury that she was not being honest. If the “horse trade” happened on your farmer-daughter’s birthday, you’d have a hard time. But, if you had a piece of paper on which your daughter the farmer signed that this was not a present, but a business transaction, you’d have a pretty easy time – and thus a strong case.
An “element” is something like a common sense conclusion based on facts you are ready to present. Simply put, if you can easily establish all of the “elements” of a case, then you have a “strong case.” If one or two elements are absent completely, you have no case at all. If one or two elements are present in your case, but are difficult to prove, or different people could easily see them differently, then you have a case, but a “weaker” case.
b. The four “elements” necessary to have an employment discrimination case:
1. You are a member of a “protected class.” This is the first element that must be put forth and be capable of being established in order to have a strong employment discrimination case. A member of a “protected class” is a person who, due to certain aspects of their life, has been recognized by our society, through our federal, state or municipal legislatures, as being in need of some extra protection in the area of employment. You are familiar with most of them: (a) age, (b) race, (c) gender, (d) disability, (e) pregnancy, (f) religion, (g) sexual orientation, (h) national origin, (i) genetic background, and a few other “protected classifications” under state and local laws.
Why have these “classifications” been given extra protection in the form of the anti-discrimination laws? Because experience has shown us that these aspects of life are both (a) no fault of any person, and (b) often give rise to unfair treatment. Older people are often assumed to be slow to learn, fast to get sick, and as “old dogs” incapable of learning “new tricks.” Pregnant women are often not hired because in a number of months, they will be delivering and then out of work for a couple of months. Disabled people might need special accommodations. But no one is older, pregnant or disabled due to some kind of “fault,” but rather because each is simply a part of the human experience.
These aspects of life that are given extra protection by anti-discrimination law are usually straight forward. But they can also arise from unusual circumstances, such as if a male applies for a job with an employer that is owned and managed by all females. In your own case, you must present facts showing you are in a “protected class,” which in most circumstances, is not too difficult.
On the other hand, if you are Caucasian, and your family moved here from South Africa six months ago, are you entitled to protection as an “African” American?
Perhaps the problem is Age Discrimination? We offer a “Model Letter Submitting Your Complaint of Illegal Age Discrimination.” To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!
2. You are qualified for the position you hold, sought, or lost. Second, you must be able to present facts, events or circumstances that show you are qualified for the job that is at the center of the dispute. For example, you must have a license to practice medicine before you can claim you were unfairly turned down for a job as a physician. In most situations, this too is not a difficult element to establish.
In some situations, this element is a bit tougher to establish; for example, is a person who has worked as a waiter in a coffee shop qualified to be a waiter in a French restaurant? Must one speak French to be a waiter in a French restaurant?
Believe you’ve been subject to Gender Discrimination? We offer a “Model Letter Submitting Your Complaint of Illegal Gender Discrimination.” To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!
3. You suffered an “adverse employment action.” Generally, this third “element” is most commonly that you have been (a) not hired, (b) demoted, (c) not promoted, or (d) terminated. Other less common events may also be deemed to be “adverse employment actions” such as having a sales territory diminished, being denied an opportunity to take a qualifying examination, or experiencing diminished responsibilities or benefits.
Sometimes it is not easy to determine whether an “adverse employment action” has taken place. As examples, (a) being given a poor performance review, (b) being placed on a Performance Improvement Plan, (c) being assigned a “coach,” and (d) being investigated for alleged misconduct? In many instances it depends on your particular facts, context, and timing.
Perhaps the problem is Race Discrimination? We offer a “Model Letter Submitting Your Complaint of Illegal Race Discrimination.” To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!
4. There exist circumstances that give rise to an “inference” of discrimination. What is an inference? It might best be described this way: a tentative conclusion based on evidence and reasoning. When you read a story, you use clues from what the author has told you to figure out something the author has not yet told you, which is an inference. In the employment context, we look at facts and circumstances to decide if one person was treated less favorably than another on a legally-impermissible basis, such as age, gender, race, etc.
This fourth “element” of an employment discrimination case is, in my view, the most difficult to establish. This is for three main reasons: (1) it is different in every case; (2) while we easily know if you are female, over 40 years old, or a member of a racial minority, we must read, think and make a judgment, that is, do “mental work,” to decide if circumstances give rise to an “inference” of discrimination; and (3) intelligent people can easily disagree on this point.
II. If your case has the four necessary elements, what makes it “strong?”
a. How cases are assessed as “strong” or “weak”
What makes an employment discrimination case “strong” or “weak” is whether and to what extent it contains the four necessary elements of an employment discrimination case.
More than once this has happened to me in Court: my client’s case is called on the Court calendar, and I proceed up to the Judge. He says to me “Mr. Sklover, what’s your case?” I say, “Your Honor, my client is 62 years old [member of protected class.] He is a software designer with two specialized degrees and 32 years experience [qualified for his job.] His employment was terminated [adverse employment action]. Just two days later two others, in their 20’s, were hired to replace him and perform his duties [inference of discrimination.] The Judge says, “Ms. Jones, you represent the employer. Mr. Sklover’s case seems awfully strong, don’t you agree?”
And more than once this has happened to me in Court, as well: my client’s case is called on the Court calendar, and I proceed up to the Judge. She says to me, “Mr. Sklover, what’s your case?” I say, “Your Honor, my client is 41 [just barely over the 40-year-old threshold in federal law]. He recently became a software designer [making qualifications for the job questionable]. His employment was terminated [adverse employment action]. The termination came about during a downsizing of one-half of the company’s workforce [does not seem likely to create an inference that it was related to his age.] The Judge says, “Mr. Sklover, you surely know this is a pitifully weak case, don’t you?”
The facts, events and circumstances of a case – measured by the four necessary elements to prove – determine if you have a strong case or a weak one. Most lawyers and Judges will engage in this analysis almost immediately, as did the Judges in the two examples above.
By the way, you may have a strong case, but it still may be difficult to prove it. For example, your boss may have said, five minutes before he fired you, in front of 10 other employees, “I hate people who are from Australia” which is where you are from. But it is almost always very hard to get those former colleagues of yours to testify, for fear of losing their own jobs. So, a case might be strong, but still difficult to prove, and this too would affect how “strong” or “weak” it would seem to lawyers, Judges and juries.
Honest lawyers will be honest with you about the strength of your case. Less-than-honest lawyers will not, but may instead tell you that you have a great case in order to get you to pay them legal fees. That is why it is so important for you to be able to tell the difference, yourself.
b. Without doubt, this is the #1 thing lawyers and judges look for:
This is it: Did you file a written complaint with Human Resources (or your management, if your employer has no Human Resources Department) preferably by email and you have a copy of it. Without proof of a written complaint of discrimination at work filed with Human Resources or management, you are giving away your case. First, the employer may claim “Gosh – no one told us,” which pretty much leaves the employer off the hook as to liability. Or the employer may say, “Gee, she spoke to us but would not give us facts.” Or, the employer may claim “But he said he was not interested in having us look into it.” Let’s leave it at this: no written complaint that you can prove you sent means far less credibility as to your complaint now, far more defenses available to your employer and . . . a far, far weaker case.
Even the U.S. Supreme Court has said, in different words, “If he or she does not, in the first instance bring the wrongdoing to light, he or she cannot expect the Courts to enforce their rights for them.” The message is simple: it is not easy to do, but failure to object to discrimination makes your case a far, far weaker case in the eyes of the law.
P.S.: Feel you’ve been retaliated against? Use our “Model Memo Objecting to Retaliation on the Job” to stop it and have it reversed. “What to Say, and How to Say It,™ just [click here.] Delivered by Email – Instantly!
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation 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 – traps and pitfalls, included – and to avoid the likely bumps in the road. Understanding whether your possible employment discrimination case is “strong” or “weak” is part of that process.
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™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains 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 & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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