DISCRIMINATION
Discrimination lawyers, particularly employment discrimination lawyers, often
find themselves in the difficult position of having to explain the difference
between reality and legality. By its definition, discrimination simply means the
process of choosing between two alternatives. But discrimination law or more
appropriately anti-discrimination law addresses the act of making choices
based upon a person’s race, gender, religion, national origin (ethnicity),
disability, or age (over 40).
Most states, including Tennessee, recognize the doctrine of “at will”
employment. At will employment simply means that an employee works for an
employer only so long as both employee and employer desire the relationship.
In short, the employee can no more make the employer give him a job than the
employer can make the employee work. You can quit any time you want to quit
and an employer can fire you any time it no longer wants you working for it. In
fact, neither one of you needs a reason to end the relationship. There are
several exceptions, including employment discrimination and retaliation.
There are several laws that address discrimination including Title VII of the
Civil Rights Act of 1964 (race, sex, religion, ethnicity, retaliation), the Americans
with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA),
42 U.S.C. 1981, and the United States Constitution, as well as many state and
local laws including for example the Tennessee Human Rights Act. Some of
these laws require that the employer have at least 15 employees, and the total
number of employees can effect the amount of money that can be recovered for
discrimination. In addition, these laws have different statutes of limitations.
Basically, this means that you must make your claim within a very short period
of time from the act. In Tennessee you have 300 days to file with the United
States Equal Employment Opportunity Commission (EEOC), you have only 180
days to file with the Tennessee Human Rights Commission (THRC). You
should be aware that these time limits apply in Tennessee. If your state does
not have its own law, you may have only 180 days to file at the EEOC. For
cases under 42 U.S.C. 1981 or the Constitution, you have 2 years from the date
of the incident to file in Federal Court. Because of the short time frame you
have to file a claim and because not all employers are covered by all laws, you
should seek the advice of an employment lawyer at the earliest possible
moment.
Race, Ethnic, and Sex Discrimination
Race and Sex Discrimination really fall into two types: straight discrimination
on the one hand and racial and sexual harassment on the other. Straight
discrimination is the situation where an employer refuses to hire or fires
someone simply because he is male or she is female. There are certain very
rare circumstances called Bona Fide Occupational Qualifications where
discrimination is legal. These are situations where being male or being white
or in the religious context, being of a particular religion is necessary to do the
job. For example, a Catholic church can refuse to hire a non-catholic as a
religious leader. Although harassment claims are a subset of discrimination,
they are different in that they relate to how a person is treated. For more
information on Harassment, see our Sexual Harassment page. The principles
of hostile environment harassment discussed there also apply to race,
ethnicity, and religion.
Religious Discrimination
Discrimination based on a person’s religion or religious beliefs is a bit more
complex. Here there are two ways an employer can discriminate: 1) By refusing
to hire (promote, firing, etc.) someone because he is of a particular religion, or
2) By refusing to accommodate a person’s particular religious beliefs. The first
kind is really the same as in race, sex, and national origin (or ethnicity) claims
described above. It is the refusal to accommodate component that make
religious discrimination different. Where there is a reasonable way for a
person to do a job without violating his or her religious beliefs, the employer
must make that accommodation. For example, a convenience store cannot
require a 7th Day Adventist to work on Saturday if there is some other
reasonable way to keep the store open (such as having a second person for
Saturdays). Another example might be that a grocery store cannot require a
Jew or a Muslim to handle pork; they should have a second person available to
work that small section.
Disability Discrimination
Like Religious Discrimination, Disability Discrimination can also take the form
of a refusal to hire or promote as well as a refusal to accommodate. Here, an
employer might be required to purchase face masks for an employee working
in a high dust zone who suffers from asthma. But the key is that the
accommodation must be reasonable. The difficulty with Disability
Discrimination which is pursued under the Americans with Disabilities Act
(ADA) is that not every condition that we may think is a disability, is a disability
under the law. The legal definition of disability for purposes of analyzing
disability discrimination claims is a disability that seriously impairs a major life
activity. To determine if you have a disability under the law, you really need to
review your case with an employment lawyer.
Age Discrimination
Age Discrimination is very narrowly defined. Unlike race or sex discrimination
where an employer may not refuse to hire someone because he is male or
because she is female, the Age Discrimination in Employment Act prohibits an
employer from refusing to hire (or for firing) someone because that person is
of any age 40 or older. But it does not protect an employee who is under the
age of 40.
Retaliation
Not only is it illegal for an employer to take action against an employee
because of that employee’s protected classification (e.g. race, gender,
disability), but it is also illegal for the employer to take action against an
employee because that employee has complained of discrimination, has hired
a lawyer to address discrimination, or has filed a charge of discrimination with
the EEOC, or equivalent state authority. Most employment related laws,
including worker’s compensation laws have anti-retaliation provisions.
If you feel you have been subjected to discrimination or retaliation, you need to
file your claims quickly. At The Alder Law Firm we can quickly analyze these
claims and help you to meet your filing deadlines and fight for your rights.
Contact Us
info@thealderlawfirm.com
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