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Discrimination Q & A

Q: Am I protected by federal law against employment discrimination?

A: Federal law protects employees against discrimination in the workplace.  The federal laws that protect employees against employment discrimination include Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Age Discrimination In Employment Act, and the Americans With Disabilities Act.

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Q: Am I protected by Florida law against employment discrimination?

A: The Florida Civil Rights Act protects employees against discrimination in the workplace.  Because the FCRA is modeled after the federal laws prohibiting employment discrimination, the Florida Civil Rights Act is interpreted in the same manner as the federal laws.   

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Q: What is the definition of unlawful employment discrimination?

A: Unlawful employment discrimination occurs when an employer subjects you to an adverse employment action because of your race, color, national origin, sex, pregnancy, religion, age, or disability.  For example, an employer terminates you because you are a woman or fails to hire you because you are African-American.  Unlawful employment discrimination does not occur when an employee is mistreated or terminated because of personality conflicts, jealousy, or poor management practices.

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

A: Harassment because of an employee’s race, color, national origin, sex, pregnancy, religion, age, or disability that is sufficiently severe or pervasive to alter the terms and conditions of the employee’s employment and create a hostile or abusive work environment is a form of unlawful employment discrimination.  Under such circumstances, the employee is being discriminated because of his or her race, color, national origin, sex, pregnancy, religion, age, or disability.   

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Q: What is disparate treatment discrimination?

A: Disparate treatment discrimination means that an employer treats an employee differently or less favorably than others because of his or her race, color, national origin, sex, pregnancy, religion, disability, or age.  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 fires an older employee for poor work performance, but does not fire younger employees with the same or even a worse performance record.

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Q: What is the most common way to prove I was subjected to discrimination?

A: In employment discrimination cases, discrimination is most often proven under the disparate treatment discrimination theory.  Showing that you were treated differently or less favorably from other employees under the same or similar circumstances is at the heart of employment discrimination litigation.  When the employer treats you differently or less favorably than other employees under the same or similar circumstances, the difference in treatment is evidence of discrimination. 

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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, age, or disability.  Generally, an adverse employment action is one that inflicts economic harm against an employee, such as failure to hire, demotion, failure to promote, reduction in pay or hours, suspension, layoff, and termination.  However, actions that do not result in economic harm to an employee can also constitute an adverse employment action, including disciplinary action, undeserved negative performance evaluation, disadvantageous transfer or work schedule, and denial of training. 

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

A: An employer is not required by law to give you a reason for an employment decision.  However, the failure to give you a reason can be evidence that the employer is hiding a discriminatory reason.  When an employer is hiding a discriminatory reason, it sometimes will not give the employee a reason because it knows there is no legitimate, non-discriminatory reason for the decision and does not want to say something that can be used against it in subsequent litigation.  So an employer’s failure to give you a reason may reflect a strategy intended to conceal a discriminatory reason.

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Q: Is a false or phony reason for a decision evidence of discrimination against me?

A: When the employer gives you a reason for an employment decision that is a lie, has no basis in fact, or is a phony reason, courts consider this as evidence that the real or true reason for the decision is discrimination.  You may succeed in proving discrimination simply by showing that the employer’s proffered reason for the employment decision is not credible. 

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

A: Employers are not required by law to follow their own company policies when making employment decisions.  However, evidence that your employer acted contrary to company policy when making the challenged employment decision can be used to prove discrimination.  When your employer fails to follow company policy, it is evidence that you were singled out for unfavorable treatment for a discriminatory reason.

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Q: Is my employer’s deviation from its progressive discipline policy evidence of discrimination?

A: Your employer is not required by law to follow its progressive discipline policy when making an employment decision.  However, a common method of proving discrimination is to show that it was not your employer’s policy or practice to respond to problems in the way it responded in your case.  Your employer’s progressive discipline policy constitutes company policy and practice with respect to disciplining and terminating employees.  When your employer deviates from its progressive discipline policy when terminating you, the employer is not treating employees uniformly and consistently.  In treating you differently and less favorably from other employees, your employer’s failure to adhere to its progressive discipline policy can be used as evidence of discrimination. 

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

A: Generally, an employer is not required to conduct an investigation before firing an employee.  However, courts have determined that employees must make a reasonably informed decision before making their employment decisions.  When you are able to show that the challenged employment decision was so lacking in merit or so ridden with error that the employer could not have made a reasonably informed decision, then the employer’s failure to conduct a reasonable, good faith investigation can be used as evidence of discrimination.

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Q: Do I have a case even if the employer did not tell me I was fired for a discriminatory reason?

A: It is not necessary that the employer tell you that you are being fired for a discriminatory reason in order to have a legal basis for bringing a discrimination lawsuit.  For example, the employer does not have to tell you that you are being fired because you are too old or because they want a man in the position.  Rarely will an employer admit to a discriminatory reason or leave a paper trail establishing a discriminatory reason for an employment decision.  Because such “smoking gun” evidence almost never exists, discrimination cases are almost always proven by circumstantial evidence under the disparate treatment discrimination theory.

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

A: Discriminatory remarks by employees involved in the challenged employment decision are the most powerful evidence of discrimination.  Generally, discriminatory remarks by employees involved in the challenged employment decision will, standing alone, enable you to present your case to a jury.  Discriminatory remarks by employees who were not involved in the challenged employment decision can be used to help prove your case, but they have less evidentiary significance than discriminatory remarks by employees involved in the challenged employment decision.

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Q: Do I have to be the target of discriminatory remarks in order to use them to prove my case?

A: It is not necessary for you to have been the target of the discriminatory comments in order to use them to prove your case.  The discriminatory remarks can be about other employees, customers, or third-persons.  Any discriminatory remark, insult, or joke made by an employee involved in the challenged employment decision is highly relevant to proving that the decision was motivated by discrimination. 

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

A: Generally, the employer’s discriminatory treatment of other employees can be used to prove that the employer discriminated against you.  This means that testimony from other employees about the discriminatory treatment they received from the employer can be used to prove your discrimination case.  For example, testimony from another employee that he or she was mistreated and terminated on the basis of race is evidence that you were discriminated against because of race. 

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Q: Can information about the person who replaced me be used as evidence of discrimination?

A: Showing that the employer replaced you with a person outside of your protected class is evidence used to prove an employment discrimination case.  For example, showing that the employer replaced you with a person of a different race, color, national origin, sex, or religion tends to prove that the employer preferred an employee of a different race, color, national origin, sex, or religion.  Likewise, showing that the employer replaced you with a person who is substantially younger tends to prove that the employer preferred a younger employee. 

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Q: What are the types of evidence that may reflect discrimination against me?

A: A discrimination case can be proven in many different ways and with a broad array of evidence.  In evaluating whether or not you were subjected to discrimination, it is helpful to consider the following questions:

* Did the employer treat you differently and less favorably from other employees?

* Did the employer subject you to the challenged employment decision for something other employees have done and were not disciplined or terminated for?

* Did the employer target you for the challenged employment decision by papering your personnel file with disciplinary actions or poor performance evaluations in order to justify the decision?

* Did the employer give you a false, factually untrue, or phony reason for the challenged employment decision?

* Did the employer fail to follow company policy when making the challenged employment decision?

* Did the employer give different reasons at different times for the challenged employment decision?

* Did the employer get your side of the story before making the challenged employment decision?

* Did the employer fail to conduct a reasonable, good faith investigation before making the challenged employment decision?

* Did the employer fail or refuse to give you a reason for the challenged employment decision?

* Did any employee involved in the challenged employment decision make any discriminatory remarks, whether about you, another employee, or a third-person?

* Did the employer fail to correct discrimination or harassment in the workplace despite your complaint or a complaint by another employee?

* Did the employer replace you with a person of another race, color, national origin, sex, or religion, or replace you with a person who is substantially younger or not disabled?

* Did the employer discriminate against other employees or customers?

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

If you have more questions or believe that you have a discrimination case, please contact our office to speak with an employment lawyer.  You will never have to pay to speak with an employment law attorney here.  We can help you take action to protect and vindicate your employee rights.  We take 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 that you recover.

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