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Discrimination
Introduction
The greatest number of telephone calls that we receive
from potential clients at Weisman, Goldberg & Weisman on a daily basis is
unquestionably individuals who have problems with their employment. Oftentimes,
these individuals are under the mistaken impression that if they were treated
unfairly by their employer this must be unlawful. Unfortunately, there are many
things that happen in the workplace which are unfair, unpleasant, unkind or
simply insulting.
There may be a variety of reasons as to why this happens
including poor management, personality conflicts, animosity, or simply because
one person does not like another one. Certain conduct by your coworkers or
employment decisions by your supervisors may be considered by you to be
unreasonable and still may not be unlawful. Employment decisions can even be
based on false information or false assumptions and still not be unlawful.
Furthermore, employment decisions may fail to comply with an employer's own
policies or with a union contract and still not be unlawful under either Ohio
law or Federal law.
Simply stating "My boss is a jerk and yells at me all
the time" is rarely something that is actionable under the law. In Ohio, as
well as in the Federal jurisdictions, anyone who does not have an employment
contract is considered to be an "employee-at-will." Anyone who is
"employed-at-will" can quit his or her job at any time but also, they can
be fired at any time for any reason as long as that reason is nondiscriminatory.
It is because of this legal principle that even if your employer does not like
your shoes, or the way you answer the phone, you can be fired. Period.
The following brief discussion of employment
discrimination law is provided to you in an effort to give you some guidance as
to whether actions taken against you in the workplace may be unlawful. The
discussion is divided into essentially two categories: one discussing the
evidence requirements for race, sex, age, color, religion, national origin, and
ancestry discrimination, and the other discussing evidence requirements for
disability discrimination.
Q: What laws are in place to protect me if I feel
that I have been discriminated against by my employer?
A:
In order for your employer's actions to be
unlawful under either Ohio Revised Code Section 4112, Title VII of the Civil
Rights Act of 1964 or the Age Discrimination in Employment Act (ADEA), that
action must have been taken because of your race, sex, color, religion,
ancestry, or national origin for Title VII coverage or if you over 40 for ADEA
coverage.
Q: What type of evidence is necessary
for me to be able to prove my discrimination claim against my employer?
A:
The most common way of showing that the action
taken against you was due to your race, sex, age, etc., is to look at how
other people of a different race, sex, age, etc. were treated who work under
the same rule requirements as you. However, simply showing you were treated
differently than fellow employers of a different race, sex, age, etc., is not
enough.
In order to prove that you were discriminated against,
you would need to show
- that you were treated differently than someone of a
different race, sex, age, etc.;
- that this person is very similar to you in position,
rank, or job duties; and
- that there was no legitimate, nondiscriminatory
reason why the employer treated you differently.
The third part of this test is often the most difficult to
prove.
Q: What are some examples of the types
of evidence that I would need to support my claims of discrimination?
A:
The simple rule is that the more evidence that
you have the easier it is to try to maintain your discrimination claims
against your employer. The evidence will include your testimony, the testimony
of coworkers or other witnesses, the testimony of your supervisors, written
documentation provided by the employer, such as notes, letters, memos and your
employee file, and any other relevant documentation that may be provided.
In addition to testimony and documents, sometimes
statistical evidence will be important to a particular discrimination case. If
certain employment policies or decisions have an impact on the employees such
that the policy affects members of one group differently than others, these
policies will be scrutinized to ensure that they do not have a discriminatory
impact or effect.
Q: If I have a disability and I feel
that my employer has taken adverse action against me because of that disability,
what must I prove?
A:
You must first prove that you are a qualified
individual with a disability. Ohio Revised Code Section 4112 and the Americans
with Disabilities Act (ADA) are very specific about what it takes for a person
to be covered by the law. In order to be covered, you must have all of the
qualifications required for the job and you must be able to perform the
essential functions of the job, either with or without an accommodation. You
must have a medical condition that substantially limits one or more of your
major life activities including such things as seeing, hearing, breathing,
walking, talking, bending, lifting, working, etc. Furthermore, the impairment
to your major life activity must be substantial, and of significant duration.
If your particular disability is not readily apparent, you will need
verification from your physician as to the nature, extent and duration of your
disability.
Second, you must be able to prove that your employer
knew about your disability. If you were injured on the job, have informed your
employer that you are disabled, or you have provided them with medical records
concerning your disability, this is usually enough proof.
Third, if your employer perceives that you have a
disability, that is to say, that they believe you have a disability when, in
fact, you do not, this may also be proof that they have taken adverse
employment action against you which is unlawful. In other words, if you have a
disease but are still able to perform your job, your employer may think that
because of this disease you have a disability and will take an adverse
employment action against you. This can be considered unlawful discrimination
on the part of your employer.
Lastly, if your employer denied you a "reasonable
accommodation" after you informed the employer of your disability, this
may be unlawful. First, you have to have informed your employer of the
disability and advised them of what kind of accommodation you believe would be
most suitable for your condition. Some accommodations may be considered
"reasonable" even though they may not be the exact accommodations
for which you asked.
Q: What should I do if I feel that I
have been discriminated against in the workplace in violation of Ohio Revised
Code Section 4112 or Title VII of the Federal law?
A:
There are a number of approaches that you can
take. First, you could contact an employment attorney who specializes in
employment discrimination law.
Second, you could contact the Ohio Civil Rights
Commission (OCRC) and set up a meeting with one of their investigators. They
would provide you free consultation and if they feel that there is evidence of
some discriminatory action taken against you, they may have you sign a
complaint against your employer which will then be served by OCRC. OCRC will
then follow up by interviewing witnesses and reviewing documents and will come
to some conclusion as to whether they believe there is enough evidence to show
that there may have been some discriminatory action taken against you.
The Equal Employment Opportunity Commission (EEOC) is
another agency that will investigate your complaints regarding employment
discrimination. However, you should know that the OCRC has the same authority
and jurisdiction as the EEOC with regard to investigating claims of
discrimination in the State of Ohio.
Q: What are the time limits by which I
must file an employment discrimination action?
A:
There are multiple statutes of limitation or time
frames by which you must file discrimination actions depending upon whether
you are filing such actions in state or federal court or with a state or
federal agency. Your limitations period is also affected by the type of
discrimination that has occurred. If you believe that you are the victim of
discrimination in the workplace, you should consult with an attorney or the
appropriate state or federal agency immediately in order to protect your
statute of limitations.
Some statutes are as short as ninety (90) days while
others may be as long as six (6) years. Due to such a wide array of applicable
limitation periods, consulting with an employment law specialist is absolutely
necessary.
If you believe that you have been discriminated against
in the workplace, and would like to know whether your employer or coworkers
may have violated anti-discrimination laws, please feel free to call Weisman,
Goldberg & Weisman with any such questions.
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