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The Employee's Voice And Advocate

Citrus County, FL Employment Lawyers Serving Central Florida Employees

Employment Discrimination Q & A

Q: What federal laws protect employees from workplace discrimination?

A: There is a broad array of federal employment discrimination laws that protect employees from discrimination in the workplace. Title VII of the Civil Rights of 1964 (Title VII) forbids employers from discriminating against employees on the basis of race, color, national origin, sex, or religion. The Pregnancy Discrimination Act (PDA) protects employees from discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees on the basis of age. The Americans with Disabilities Act (ADA) makes discrimination against employees on the basis of disability an unlawful employment practice. Title VII, the PDA, the ADEA, and the ADA protect employees from discrimination with respect to all aspects of employment, including hiring, compensation, demotion, promotion, job duties, discipline, layoff, and termination.

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Q: What Florida law protects employees from workplace discrimination?

A: The Florida Civil Rights Act (FCRA) protects employees from discrimination on the basis of race, color, national origin, sex, religion, pregnancy, age, handicap, and marital status. Because the FCRA is modeled after federal employment discrimination law, the FCRA is interpreted in the same manner as federal employment discrimination law. Thus, if an employment practice is an unlawful discriminatory employment practice under federal employment discrimination law, then the employment practice is an unlawful discriminatory employment practice under the FCRA. The FCRA protects employees from discrimination in all aspects of employment, including hiring, compensation, demotion, promotion, job duties, discipline, layoff, and discharge.

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Q: What is the definition of unlawful employment discrimination?

A: Unlawful employment discrimination occurs when an employer subjects an employee to an adverse employment action because of the employee’s race, color, national origin, sex, pregnancy, religion, age, or disability. In Hazen Paper Co. v. Biggins, 507 U.S. 613 (1993), the U.S. Supreme Court explained that an employer discriminates against an employee on the basis of race, color, national origin, sex, pregnancy, religion, age, or disability when the employee’s race, color, national origin, sex, pregnancy, religion, age, or disability “actually played a role” in the “employer’s decision-making process” and “had a determinative influence” on the employment decision.

Distilled to its essence, the Supreme Court’s definition of unlawful employment discrimination means that an employer is prohibited from considering an employee’s race, color, national origin, sex, pregnancy, religion, age, or disability when making employment decisions. Rather, in the words of the Biggins Court, “the law requires the employer to ignore” an employee’s race, color, national origin, sex, pregnancy, religion, age, or disability when making employment decisions.

As observed by the U.S. Second Circuit Court of Appeals in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), it is not unlawful employment discrimination for employers to make employment decisions based on “back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, [or] spite.” In the employment discrimination litigation context, employers often disingenuously defend their discriminatory employment decisions by claiming that they were motivated by such permissible factors and not by impermissible discrimination.

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Q: Is harassment of an employee a form of unlawful employment discrimination?

A: Yes. Harassment of an employee because of the employee’s race, color, national origin, sex, pregnancy, religion, age, or disability is a form of unlawful employment discrimination. For example, racial harassment is a form of unlawful race discrimination. Likewise, sexual harassment is a form of unlawful sex discrimination. To violate employment discrimination law, workplace harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a discriminatory hostile working environment. When an employee is required to work in a discriminatory hostile environment, the employee has a claim against the employer for creating or maintaining a hostile work environment in violation of employment discrimination law.

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Q: Are workers protected from discrimination based on sexual orientation or transgender status?

A: Yes. In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the U.S. Supreme Court held that discrimination against employees on the basis of sexual orientation or transgender status is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). The Supreme Court’s landmark ruling in Bostock makes discrimination against employees on the basis of sexual orientation or transgender status an unlawful discriminatory employment practice in violation of Title VII. The Supreme Court’s decision in Bostock overturned decades of federal court precedent authorizing discrimination against employees on the basis of sexual orientation or transgender status. Employees are protected from discrimination on the basis of sexual orientation and transgender status with respect to all aspects of employment, including hiring, demotion, promotion, compensation, discipline, job duties, layoff, and termination.

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Q: What is disparate treatment discrimination?

A: As observed by the U.S. Supreme Court in Teamsters v. United States, 431 U.S. 324 (1977), “disparate treatment . . . is the most easily understood type of discrimination.” Disparate treatment discrimination occurs when an employer treats an employee differently or less favorably from others because of the employee’s race, color, national origin, sex, pregnancy, religion, disability, or age. Simply stated, disparate treatment discrimination means that an employee is treated differently or less favorably from other employees. For example, an employer fires an African-American employee for violating a work rule, but does not fire white employees who violated the same work rule. Likewise, an employer terminates an older worker for poor performance, but does not fire younger workers with the same or even a worse performance record. Similarly, an employer discharges an female worker because of a customer complaint, but does not fire male employees who are the subject of a customer complaint. In these examples, the differences in treatment support the conclusion that the employee was treated differently or less favorably because of the employee’s race, age, or sex and, thus, for a discriminatory reason.

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Q: What is the most common method of proving unlawful employment discrimination?

A: Unlawful employment discrimination is most commonly proven under the disparate treatment discrimination theory. Showing that an employee was treated differently or less favorably from other employees under the same or similar circumstances is at the heart of employment discrimination litigation. When an employer treats an employee differently or less favorably from other employees under the same or similar circumstances, the difference in treatment is circumstantial evidence of discrimination. As the U.S. Supreme Court explained in Hazen Paper Co. v. Biggins, 507 U.S. 609 (1993), discrimination can in some situations be proven “from the mere fact of differences in treatment.”

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Q: What does it mean for an employee to be a member of a protected class?

A: Under employment discrimination law, employees are a member of a protected class based on their race, color, national origin, sex, pregnancy, religion, age, or disability. All employees are members of a protected class based on their particular race, color, national origin, or sex. Pregnant employees are members of a protected class based on their pregnancy. Employees are members of a protected class based on their religious beliefs and practices. Employees over forty years of age are members of a protected age class based on their age. Employees with a disability are members of a protected class based on their disability.

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Q: How is an employee’s membership in a protected class used to prove discrimination?

A: In the employment discrimination context, the significance of an employee’s membership in a protected class is rooted in the disparate treatment discrimination theory. Under the disparate treatment theory of discrimination, employees can establish discrimination by showing that the employer treated them differently or less favorably from employees outside of their protected class. For example, an African-American employee can prove discrimination by showing that he or she was treated differently or less favorably from white employees. Similarly, a woman can establish the employer’s discriminatory intent by showing that men were treated differently or more favorably. While a pregnant employee can show she was discriminated against with evidence that the employer treated her differently or less favorably from non-pregnant employees. Likewise, an older worker can prove an unlawful discriminatory motive by showing that the employer gave preferential treatment to younger employees. In these examples, the employees prove discrimination by comparing their treatment to employees who are not members of their protected class.

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Q: What is an adverse employment action?

A: Employers are prohibited from subjecting employees to an adverse employment action because of their race, color, national origin, sex, pregnancy, religion, disability, or age. Generally, an adverse employment action is an employment decision that inflicts economic harm against an employee, such as demotion, failure to promote, reduction in pay or hours, suspension without pay, elimination of overtime, layoff, and termination. However, employment decisions that do not result in economic harm to an employee can also constitute an adverse employment action, including disciplinary action, negative performance evaluation, performance improvement plan, transfer, and denial of training.

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Q: Must an employer tell me that I was fired for a discriminatory reason to have a case?

A: No. As observed by U.S. Eighth Circuit Court of Appeals in E.E.O.C. v. Liberal R-11 School Dist., 314 F.3d 920 (8th Cir. 2002), “a smoking-gun case in the [employment] discrimination area is rare.” Thus, it is not necessary that an employer tell you that you are being fired for a discriminatory reason to have legal grounds for bringing an employment discrimination lawsuit. For example, an employer does not have to tell you that you are being fired because you are too old or because you are pregnant. Employers almost never admit to a discriminatory reason for an employment decision or leave a paper trail showing a discriminatory reason for an employment decision. “Because employers rarely leave a paper trail—or a smoking gun—attesting to discriminatory intent,” as explained by the U.S. Second Circuit Court of Appeals in Hollandar v. American Cyanamid Co., 895 F.2d 80 (2d Cir. 1990), employees “often must build their cases from pieces of circumstantial evidence which cumulatively undercut the credibility of the various explanations offered by the employer.” Thus, because “smoking gun” evidence of discrimination almost never exists, employment discrimination cases are almost always proven through circumstantial evidence.

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Q: Is the failure to give me a reason for an employment decision evidence of discrimination?

A: In Florida, employers are not required by law to give employees a reason for an employment decision. However, an employer’s failure or refusal to give an employee a reason for an employment decision can be evidence that the employer is hiding a discriminatory reason. When a discriminatory motive is the real reason for an employment decision, employers often do not give employees a reason because they know there is no legitimate, non-discriminatory reason for the employment decision. Because of this knowledge, employers do not want to say something that can be used against them in any subsequent litigation regarding the employment decision. Thus, an employer’s failure or refusal to give an employee a reason for an employment decision may reflect a strategy intended to conceal a discriminatory reason.

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Q: Is a false or phony reason for an employment decision evidence of discrimination?

A: When an employer gives an employee a reason for an employment decision that is a lie, has no basis in fact, or is a phony reason, courts treat the false reason as evidence that the real reason for the decision is unlawful discrimination. As explained by the U.S. Seventh Circuit Court of Appeals in Baines v. Walgreen Co., 863 F.3d 656 (7th Cir. 2017), “[e]vidence that an employer lied about the reasons for an adverse employment action permits a [jury] to infer that the decision was actually motivated by discriminatory animus.” Thus, an employee may prove unlawful discrimination simply by showing that the employer’s proffered reason for the employment decision is false or unworthy of belief. As the U.S. Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) observed, “[p]roof that the [employer’s] explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”

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Q: Is an employer’s failure to follow company policy evidence of discrimination?

A: Florida employers are not required by law to follow their company policies when making employment decisions. However, evidence that an employer acted contrary to company policy when making an employment decision can be used to prove discrimination. When an employer fails to follow company policy when making an employment decision, the failure is evidence that the employer singled out the employee for unfavorable treatment for a discriminatory reason. As explained by the U.S. District Court for the Northern District of Indiana in Graham v. Bendix Corp., 585 F.Supp. 1036 (N.D. Ind. 1984), “[w]here the employer departs from its own written policies and treats an [employee] more severely than other employees, that is competent evidence that the employer’s stated reasons for the [employment decision] are pretextual attempts to put an acceptable face on the practice of discrimination.”

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Q: Is an employer’s failure to follow its progressive discipline policy evidence of discrimination?

A: In Florida, employers do not have a legal duty to follow their progressive disciplinary policy when making an employment decision. However, a common method used by employees to prove discrimination is by showing that it was not the employer’s policy or practice to respond to problems in the way it responded in their case. An employer’s progressive disciplinary policy constitutes company policy and practice with respect to disciplining and terminating employees. When the employer fails to follow its progressive disciplinary policy when firing an employee, the employer has acted contrary to its own policy. The employer’s violation of its own policy can serve as circumstantial evidence of discrimination. Moreover, if the employer followed its progressive disciplinary policy before firing other employees, then the employer failed to treat employees uniformly and consistently. The differences in treatment is further circumstantial evidence of discrimination.

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Q: Is an employment decision based on an unwritten policy evidence of discrimination?

A: In Florida, employers are lawfully permitted to base employment decisions on unwritten policies. Seizing on the power given to them by employment law, employers often justify employment decisions based on purported unwritten policies. In the employment discrimination context, however, an employer’s reliance on an unwritten policy as a justification for an employment decision is often used to mask a discriminatory motive. In other words, employers frequently use purported unwritten policies to justify discriminatory employment decisions. As explained by the U.S. District Court for the Middle District of Alabama in Hall v. Dempsey, 111 F.Supp.2d 1208 (M.D. Ala. 2000), when an employment decision is based on an unwritten policy, courts have “recognized that the decision should be viewed with greater scrutiny” and “may constitute circumstantial evidence of discrimination.” Thus, an employer’s reliance on an unwritten policy to justify an employment decision can be used to prove that the decision was motivated by unlawful discriminatory intent.

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Q: Is my good performance relevant to proving employment discrimination?

A: When an employer offers poor work performance as the justification for an employment decision, evidence of the employee’s good work performance tends to show that the articulated justification for the decision is not factually true. Showing an employer’s proffered reason for an employment decision has no basis in fact is a common method of proving that the articulated reason was in reality a pretext for discrimination. For example, the U.S. Second Circuit Court of Appeals in Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir. 1994) found that the employer’s failure to discharge the employee for months during which he was allegedly performing poorly was inconsistent with its asserted justification of poor performance as the reason for the termination, thereby indicating that the proffered explanation for the employee’s termination was a pretext for discrimination.

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Q: Must an employer have documentary evidence establishing my poor work performance?

A: No. Florida employers are not required by law to support the reason for an employment decision with documentary evidence. However, if an employer offers nothing but anecdotal evidence in support of its assertion that the employee was a poor performer, the employer’s lack of contemporaneous documentary evidence establishing the employee’s poor performance, such as a written warning, negative performance evaluation, or performance improvement plan, calls into question the truthfulness of the employer’s reason for the employment decision. Discrediting an employer’s articulated reason for an employment decision is a common method of proving that discrimination was the real reason for the employment decision. The employer’s lack of contemporaneous documentary evidence showing the employee’s unsatisfactory work performance also tends to show that the proffered reason was nothing more than a pretextual justification conjured up by the employer to mask a discriminatory motive.

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Q: Does an employer have to put me on a performance improvement plan before firing me?

A: No. Employers are not legally required to put employees on a performance improvement plan before firing them. However, employers frequently use performance improvement plans as a pretextual justification for getting rid of employees for a discriminatory reason. When using performance improvement plans to conceal a discriminatory motive, employers will give employees performance improvement plans with unrealistic goals or higher expectations of performance than placed on other employees. In such circumstances, an employee can show that he or she was targeted for termination and set up to fail through a performance improvement plan that was used as a pretextual justification for discrimination.

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Q: Is the length and quality of my service relevant in proving employment discrimination?

A: Yes. Employers always argue that the length and quality of an employee’s service is irrelevant to whether an employee was subjected to unlawful employment discrimination because courts do not serve as super-personnel departments weighing the merits of or second-guessing employment decisions. However, as the U.S. Fourth Circuit Court of Appeals explained in Westmoreland v. TWC administrations, LLC, 924 F.3d 718 (4th Cir. 2019), courts are permitted to consider “an employee’s tenure and performance in evaluating whether the employer’s articulated justification for the employee’s termination is so flimsy as to be untrue or implausible, and thus asserted in an attempt to mask a discriminatory motive.” Thus, when an employee is fired for minor mistakes or infractions that commonly do not warrant termination, the length and quality of an employee’s service is relevant in establishing that the employee’s termination was such an extreme overreaction as to be a pretext for an unlawful discriminatory reason.

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Q: Does an employer have to conduct an investigation before firing me?

A: No. Florida employers are not required by law to conduct an investigation, let alone a good faith, reasonable investigation, before firing employees. However, as the U.S. Sixth Circuit Court of Appeals in Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998) explained, employers must make “a reasonably informed and considered decision” when firing an employee. In Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006), the Sixth Circuit observed that although courts “do not require that the decisional process used by the employer be optimal or that it left no stone unturned,” it must be reasonably informed and courts will not “blindly assume that an employer’s description of its reasons is honest.”

When an employee is able to show that a termination decision was so lacking in merit or so ridden with error that the employer did not make a reasonably informed and considered decision, then the employer’s failure to either conduct any investigation or a good faith, reasonable investigation before firing the employee is powerful evidence of a discriminatory motive. In other words, if the employer’s asserted reason is so unreasonable or ridden with error, then the employer’s failure to either conduct any investigation or a good faith, reasonable investigation before firing the employee shows that the proffered reason was in reality a pretext for unlawful discrimination.

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Q: Is the failure to get my side of the story before firing me evidence of discrimination?

A: Florida employers are not obligated by law to get their employees side of the story before firing them. In Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998), however, the U.S. Sixth Circuit Court of Appeals determined that employers must make “a reasonably informed and considered decision” when terminating an employee. Because getting an employee’s side of the story is generally necessary to make a reasonably informed and considered termination decision, an employer’s failure to get the employee’s side of the story before firing the employee often illuminates the employer’s motivation. If the employer would have elicited facts showing that its reason for the termination was unreasonable, mistaken, or false by getting the employee’s side of the story, then the employee has powerful evidence that the employer did not want to get his or her side of the story because a discriminatory reason was the real reason for the termination decision. In other words, the more questionable the employer’s reason for termination because of its failure to get the employee’s side of the story, the easier it will be for the employee to show that the employer either manufactured or seized upon the articulated reason as a pretext to conceal a discriminatory motive.

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Q: Can discriminatory remarks be used to prove my case?

A: Yes. Discriminatory remarks by employees involved in making the challenged employment decision are the most powerful evidence of discrimination. It is not necessary that the discriminatory remarks be made in the context of the challenged employment decision. In other words, it is not necessary that a decison-maker made a discriminatory comment when informing the employee of the challenged employment decision. Rather, any discriminatory remarks by an employee involved in making the challenged employment decision can be used to prove that the decision was motivated by unlawful discrimination. Generally, discriminatory comments by employees involved in making the challenged employment decision will, standing alone, enable an employee to present his or her discrimination case to a jury for resolution. Discriminatory remarks by employees who were not involved in making the challenged employment decision can be used to help prove a discrimination case, but they have far less legal significance than discriminatory comments made by employees involved in making the challenged employment decision.

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Q: Must I be the target of discriminatory remarks to use them to prove my case?

A: No. It is not necessary for you to have been the target of the discriminatory comments in order to use them to prove your discrimination case. The discriminatory remarks can be about other employees, customers, or any other person. Nor is it necessary for you to have been present when a discriminatory remark was made. Any discriminatory comment by an employee who was involved in making the challenged employment decision is highly relevant in proving that the decision was motivated by unlawful discrimination.

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Q: Can discrimination against other employees be used to prove my case?

A: Yes. An employer’s discriminatory treatment of other employees can be used to prove that the employer discriminated against you when making an employment decision. This means that testimony from other employees about the discrimination they experienced during their employment is relevant in proving your discrimination case. For example, testimony from another employee about the racial remarks or race discrimination she endured during her employment can be used to prove that the employer discriminated against you on the basis of race. Although not necessary to prove a discrimination case, testimony from other employees that the employer discriminated against them is powerful evidence because it establishes the employer’s unlawful discriminatory motive. Indeed, testimony from other employees about the discrimination they experienced during their employment shows that a discriminatory motive more likely motivated the employment decision at issue in your discrimination case.

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Q: Is information about the person who replaced me relevant in proving discrimination?

A: Yes. In the context of a discriminatory discharge case, information abut the person who replaced the terminated employee is highly relevant evidence. Showing that the terminated employee was replaced by an individual who is not a member of the terminated employee’s protected class is relevant evidence of the employer’s discriminatory intent. For example, showing that the employer replaced the discharged employee with an individual of a different race, national origin, sex, or religion tends to prove that the employer preferred an individual who is not a member of the discharged employee’s protected class. Likewise, showing that the employer replaced the terminated employee with a substantially younger individual tends to prove that the employer wanted a younger employee. Moreover, evidence showing that the replacement was less qualified than the discharged employee is relevant in establishing that the proffered explanation for the termination was a mere pretext for discrimination.

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Q: What factors are relevant in evaluating whether I was subjected to unlawful discrimination?

A: Discrimination is the type of inquiry where everything depends on the facts and circumstances of each particular case. Thus, there is no mechanical formula for proving unlawful discrimination. Rather, unlawful discrimination can be proven with a broad array of different types of evidence. In evaluating whether or not you were subjected to unlawful discrimination, including a discriminatory employment decision, it is helpful to consider the following questions:

  • * Did any employee involved in making the challenged employment decision make any discriminatory remarks, whether about you, another employee, or any third-person, in the workplace?
  • * As a justification for the employment decision, did the employer rely on information provided by an employee who discriminated against you, discriminated against other employees, or made discriminatory remarks in the workplace?
  • * In making the employment decision, did the employer treat you differently or less favorably from other employees? Stated another way, were other employees given preferential treatment? If so, were the employees who were treated differently or more favorably outside of your protected class? In other words, were the employees members of a different race, national origin, sex, or religion? Or were the employees not pregnant or substantially younger?
  • * If fired for alleged misconduct or violation of company policy, did the employer fire other employees who engaged in the same or even worse behavior? If so, were the employees who were treated differently or more favorably outside of your protected class?
  • * If fired for poor performance, did the employer fire other employees who had the same performance or even a worse performance record? If so, were the employees who were treated differently or more favorably outside of your protected class?
  • * Did the employer target you for the employment decision by papering your personnel file with disciplinary actions or negative performance evaluations in order to justify the decision?
  • * Did the employer set you up for failure by putting you on a performance improvement plan with unrealistic goals or higher expectations placed on other employees?
  • * Did the employer fail or refuse to give you a reason for the employment decision?
  • * Were you given a factually untrue, absurd, trivial, or phony reason for the employment decision?
  • * Do you believe there was an absence of “good cause” for the employment decision?
  • * Did the employer conduct a reasonable and good faith investigation before making the employment decision?
  • * Did the employer get your side of the story before making the employment decision?
  • * Did the employer take prompt and effective remedial measures in response to your complaint of discrimination or harassment in the workplace? In other words, did the employer take effective corrective action to stop the discrimination or harassment?
  • * Did the employer discriminate against other employees or customers?

If you answered “yes” to any question, you may be a discrimination victim.

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Q: What damages are available for employment discrimination victims?

A: There is a broad array of remedies available for employment discrimination victims. A fundamental purpose of employment discrimination law is to make employees whole for injuries suffered due to unlawful discrimination. In other words, employment discrimination victims are entitled to be put in the position they would have occupied in the absence of discrimination. A victim of a discriminatory failure to hire, discriminatory demotion, discriminatory compensation, discriminatory failure to promote, or discriminatory discharge is entitled to recover back-pay. Back-pay awards generally reflect not only lost wages or salary, but also other benefits lost due to discrimination. To compensate for future damages, courts are authorized to reinstate discriminatory discharge victims. Employment discrimination victims are also entitled to recover compensatory damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. Under most employment discrimination laws, punitive damages are also available for employment discrimination victims. The purpose of punitive damages is to punish employers who engage in unlawful discriminatory employment practices.

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Do You Have More Questions Or Believe You Have A Case?

Contact Our Citrus County, FL Employment Attorneys

Based on Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida employment lawyers can help you take action to protect and vindicate your employee rights. If you have more questions or believe that you have an employment discrimination case, please contact our office to speak with our employment attorneys. You will never have to pay to speak with an employment lawyer here. Our Citrus County, Florida employment attorneys take employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award you recover.

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