Still Waiting on Your Job Discrimination Settlement? TriMark Can Help.
Everyone knows that discriminating against someone on the job is illegal within the boundaries of the United States. But beyond the the state and federal laws that prohibit it, it’s just plain wrong from a moral standpoint.
The truth, however, is that it still goes on in the workplace all the time.
It happens a lot more often than most people might think.
Even the most trusted consumer brands such as Abercrombie and Fitch, 24 Hour Fitness, US Census Bureau, Bank of America, eBay, Citigroup, Compass Group, Dell, Black & Decker Corp, the University of California, Sephora, La-Z-Boy, Goldman Sachs, Starbucks, Wal-Mart, Kroger, Bayer, Publicis, United Airlines, Walt Disney World, Microsoft, Wells Fargo, Toys “R” Us, FedEx, TGI Fridays, Chipotle, among many others, have all faced legal issues and some have even faced (and settled) class action lawsuits.
While many are still being investigated, some have settled and its a foregone conclusion that more lawsuits are coming.
There are certain regulations and limitations in terms of filing charges and pursuing lawsuits against companies who have mistreated an employee or a job applicant.
Current laws and policies cover a vast range of topics including age, genetic information, harassment, disability, equal pay, natural origins, pregnancy, gender, sexual orientation, sex, race/color, retaliation, religion and sexual harassment which protect employees or job applicants.
The governing body that implements regulations, policies and enforces laws with regard to employees is the United States Equal Employment Opportunity Commission or EEOC. While there other laws that relate to discrimination laws, other government bodies are also the ones that enforce the different acts that protect individuals. This includes the Department of Labor, Health and Human Services and the Treasury, among many others.
This article outlines the different kinds of discrimination and the laws that are applied to each governing law that protects victims, as well as what to expect in the whole process of having to sue an employer and various laws that are pertinent to any person seeking justice for these crimes.
Lawsuit Loans Require an EEOC Right to Sue Letter
Due to the exorbitant number of frivolous claims filed for discriminatory employment practices each year, you must have already filed a complaint with the US Equal Employment Opportunity Commission (EEOC). Additionally, the EEOC complaint should have been investigated and you should be in possession of an EEOC “Right to Sue” letter. That is the first requirement to be eligible for lawsuit funding.
It is important to understand that employment lawsuits are a special niche within the legal funding industry and only a few lawsuit financing companies handle these sorts of cases.TriMark Legal Funding LLC is one of the few.
Filing An Employment Discrimination Lawsuit
Before a person can file for a lawsuit (based on race, color, religion, sex, national origin, age of 40 and older, disability, genetic information or retaliation), the victim must first file a charge in any field office of the United States Equal Employment Opportunity Commission or EEOC.
An exception to this rule is when a person plans to file the lawsuit under the Equal Pay Act, which allows the person to go straight to court without filing for charges. In this case, the lawsuit must be filed within two years from the date of the act, and three years if the act was willful.
The EEOC will then hand over a Notice of Right to Sue to the complainant once the charge has been dismissed by the administration, which usually happens when an investigation is completed. In certain cases, however, the EEOC might dismiss the charge based on other reasons, like the failure to cooperate in the investigation.
The Notice of Right to Sue allows victims to pursue filing of lawsuits in a court of law. The lawsuit must be filed within 90 days upon receipt of the notice. The EEOC will then be unable to extend the 90-day deadline unless the District Director gives the parties a written notice of intent to reconsider prior to the deadline. It is important for charging parties to file the lawsuit within the given time frame, to prevent being disallowed to move on with the lawsuit.
In cases of age discrimination lawsuits, however, charging parties need not have the Notice of Right to Sue in order to file lawsuits in court. Victims can file a lawsuit within 60 days of filing the charge in the EEOC, but no later than 90 days after receiving a notice regarding the completion of the EEOC’s investigation process.
Because Title VII makes it illegal for parties to discriminate on the basis of sex in terms of payment of wages and benefits, Equal Pay Act claims can receive advantages when they also file lawsuits under Title VII. Pursuing Title VII claims in court would also require filing charges in the EEOC and the receipt of a Notice of Right to Sue.
Charging parties may also opt to file lawsuits prior to the completion of the EEOC investigation. To do such thing, the charging party must request a Notice of Right to Sue from the EEOC. The EEOC is required by law to give the notice when charging parties request for it, as long as 180 days have passed from the date of filing the charges. In cases that less than 180 days have surpassed, the EEOC will only give the notice to the charging parties if the investigation will not be able to complete the investigation within 180 days.
Charging parties must request for the Notice of Right to Sue in writing, and the request letter must be sent to the Director of the EEOC office where the charges were filed. Parties must include the names of the parties and the charge number, if possible, in the request letter. The EEOC will close the case and will no longer take action once the charging party has been given the Notice of the Right to Sue. If parties would like the EEOC to pursue investigations regarding their case, then these very parties should refrain from requesting the Notice of Right to Sue.
There are many types of discrimination that are being enforced by the United States Equal Employment Opportunity Commission.
- Age / Ageism
- Disability / ADA
- Equal Pay / Equal Compensation
- FMLA (Family Medical Leave Act)
- Gender / Sex
- Gender Identity / Sexual orientation
- Genetic Information
- National Origin / Ethnicity
- Race / Color
- Sexual Harassment
If any employee suffers from any form that fall under these categories, then the victim may pursue legal action against their employer.
An employment policy or practice that applies to everyone can be illegal if there is a negative impact on applicants or employees within the constraints of each category and is not related to the job or necessary to business operations.
The law prohibits discrimination in any of the following aspects of employment: hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other terms or conditions of employment.
Harassment in terms of age include offensive remarks about a person’s age on a frequent or severe basis that it therefore creates a hostile or offensive work environment, or results in an adverse employment decision (like the victim being fired or demoted, in some cases). The person who does the harassment can either be a co-worker, whether it is a supervisor in the same or different area, or even a client or a customer.
Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act restricts compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. There are no requirements under Title VII, the Age Discrimination in Employment Act, or the Americans with Disabilities Act, unlike the Equal Pay Act, that jobs must be substantially equal to each other.
This is one of the more self-explanatory types. Basically, it occurs when a person is less favored by an employer because of the person’s age. It is illegal to discriminate against people who are 40 years of age or older. However, it is not illegal for employers to favor older employees over younger ones, regardless even if the two fall under the age group of 40 and above.
A person with a disability can be defined in one of three way, such as (1) a physical or mental condition that extensively curbs any major life activity, (2) history of disability (i.e. cancer in remission), and (3) if the person is deemed or believed to have a physical or mental impairment that is short term, and minor.
When a person is unfavorably treated because the person has a disability, regardless of the disabled person’s qualifications, this qualifies as a disability discrimination case. This occurs when the employer or another entity is protected by the Americans with Disabilities Act as amended, or the Rehabilitation Act as amended. However, federal employees and/or applicants are covered by the Rehabilitation Act of 1973 in replacement for the American with Disabilities Act. Fortunately, the protections of this act are predominantly the same.
Another instance can occur is when a covered employer or other entity treats an applicant or employee in a less favored manner because of the person’s history of disability or because the person is deemed to have impairment, either physical, mental or both, that is not expected to last, at most, six months and minor, even if the person does not have the impairment.
Employers are then required by law to give “reasonable accommodation” to an employee or applicant with a disability, in so forth that doing in such action could cause considerable adversity (i.e. “undue hardship”). Undue hardship is when the accommodation would be gravely burdensome given the employer’s size, financial resources, and the needs of the business itself. Employers are denied from protesting to give such accommodation to the employee for the mere reason of cost. Employers are not required, however, to provide the same accommodation that the employee wants. Employers have the freedom to choose which accommodation would be provided.
Reasonable accommodations are identified as any alterations to the work environment to aid a disabled person apply for the job, execute the responsibilities of a job, or reap the benefits included in employment. This may include make the work space more accessible to the disabled, or allowing interpreters in the cases of blindness or deafness disabilities.
People are protected by the law from discrimination based on a relationship with a disabled person. This includes cases like when an employer discriminates the employee because the latter’s spouse is a person with a disability. It is then illegal to harass or discriminate an applicant or an employee because of the person’s history with disability, or is deemed to have a physical or mental impairment that is expected to last on a short term basis (i.e. maximum of six months), and minor (whether or not the person has the impairment).
Federal anti-discrimination laws do not obligate employers to give accommodation to an employee who needs to take care of a disabled family member, the Family and Medical Leave Act may be able to demand an employer to resolve the issue. The act is enforced by the United States Department of Labor. The law restricts employers from asking job applicants medical questions, to take medical exams or to identify a disability prior to extending a job offer.
Men and women in the same workplace have to be given the same and equal pay for the same and equal work, as demanded by the Equal Pay Act. The jobs do not necessarily have to be identical, but they have to be substantially equal, as determined by job content. All forms of play are also covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pays, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If a wage inequality occurs between men and women, employers are not allowed to reduce of the wages of either sex so that the pay will then be equal.
Individuals who claim that employers have disobeyed the Equal Pay Act can go directly to court and are not required to file a charge to the EEOC prior to court. The deadline for filing charges under the Equal Pay Act and the deadline for going to court are the same in that it has to be within two years from the date of the alleged violation of the Equal Pay Act. In cases of willful violations, however, it is up to three years of the date.
Genetic information involves the information about a person’s genetic tests and the genetic tests on the person’s family members. It also includes information about the exhibition of a disease or disorder in the family members. Family medical history is included in the definition of genetic information since it is used to figure out if a person has higher risks of getting the condition in the future. Genetic information also includes the person’s participation any kind of genetic service or of its family member.
Employers are not allowed to use genetic information to make employment decisions due to the fact that genetic information is irrelevant to the person’s current ability to function as an employee. It is also illegal for employers to fire, demote, harass , or retaliate against a job applicant or an employee for participating in any discrimination proceeding.
It is unlawful to discriminate employees or applicants due to the basis of genetic information, as stated under Title II of the Genetic Information Nondiscrimination Act of 2008. This title restrains using genetic information in making employment decisions, prohibits employers and other entities covered by Title II (i.e. employment agencies, labor organizations and joint labor-management training and apprenticeship programs or covered entities) from requesting, requiring or purchasing genetic information, and rigorously limits the disclosure of genetic information.
The EEOC enforces Title II of the Genetic Information Nondiscrimination Act (GINA), while the Departments of Labor, Health and Human Services and the Treasury have a duty to issue regulations for Title I of GINA.
The six exceptions to the prohibition of a covered entity to gather genetic information are:
(1) unintentional gain of genetic information do not violate the governing Act, like in situations of overhearing as compared to eavesdropping.
(2) Family medical history may be attained as part of health or genetic services offered by the employer on an initiative basis, if particular requirements are met.
(3) Family medical history may be obtained as part of the certification process for FMLA leave (or any under similar laws or pursuant to an employer policy), where an employee is asking for leave to take care of a family member with serious medical conditions.
(4) Genetic information can be obtained through commercial and public documents as long as the employer does not search for this information with the intention to find said information.
(5) Genetic information may be obtained through a genetic monitoring program in the workplace that is required by law or is voluntary.
(6) Gaining access to genetic information of employees by employers who are involved with DNA testing for law enforcement purposes or for purposes of human remains identification is permitted. The genetic information is only allowed for use of DNA analysis for quality control in detection of contamination samples.
It is against the law for a covered entity to disclose genetic information about employees or job applicants. The entities must keep the information confidential and in a separate medical file. The nondisclosure rule, however, has limited exceptions the allow for the disclosure of relevant genetic information to government officials who are conducting investigations under the compliance with Title II of GINA and for disclosures that are being pursued through a court order.
Harassment violates title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990. The unwelcome conduct may be based on common discrimination types like race, color, religion, sex including pregnancy, national origin, age, disability or genetic information.
Harassment disobeys the law when (1) in lasting of the offensive manner turns into a condition of continued employment, (2) the manner or conduct is relentless enough to have made a work environment that a “reasonable person” would identify as intimidating, hostile, or abusive. Anti-discrimination laws protect the victims against harassment in retaliation for any of the actions taken to pursue and participate in any kind of discrimination charge proceedings. (3) Opposing employment practices that they rationally deem as discrimination against these individuals, in disobedience to these laws.
Again, harassment becomes illegal when the manner exhibited makes a work environment hostile, intimidating or offensive to “reasonable people”. Offensive conduct is not limited to the following examples: offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mocker, insults/pull-downs, offensive objects or photos, and obstruction of work operations. The victim doesn’t necessarily have to be the one being harassed, but can be anyone who is affected by the antagonistic conduct.
Employees are automatically liable for harassment from a supervisor that results in negative employment decisions and actions, particularly, termination, failure to promote or hire, and loss of wages. Employers can avoid liability (in cases of harassment resulting in hostile work environments) if it is proven that (1) the employer reasonably tried to prevent and act immediately and accordingly to the unnecessarily negative behavior, an (2) the employee unreasonably failed to use to his advantage any preventive or corrective opportunities that were provided by the employer. Employers are also liable for harassment by non-supervisory employees or non-employees it has control over.
There are laws to protect victims of harassment, including reasons such as the person’s sex. Harassment includes sexual harassment, or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment with a sexual nature involved. Harassment doesn’t necessarily require a sexual nature – it can include offensive comments regarding the person’s sex. The victims and harassers can be man or woman and the victim can either be in the same sex or not.
Discrimination of this kind involves unfavorable treatment to a person because they are from a certain part of the world, or of ethnicity or accent, or of ethnic background in appearance (even if they are not). National origin type of discrimination can also involve ill-mannered conduct because of a person’s association/s with a person or persons of a certain ethnic group. The victim and the harasser could have the same origins and the discrimination may still occur.
Employers are only allowed to require employees to speak fluently in English if such fluency is needed to perform the employee’s responsibilities. English only rules is only allowed if it would support the safety and/or efficient business operations and is put in place for reasons not relating to discrimination. Employers are not allowed to base employment decisions based on the ethnicity or natural origins of an employee or job applicant unless it may hinder the work performance.
The Immigration Reform and Control Act (IRCA) of 1986 make it unlawful when employers discriminate in terms of hiring, firing, recruitment, or referral for a fee based on the immigration or citizenship status of an employer. The law refrains employers from hiring only United States citizens or legally permanent residents unless they are required to do such because of the law, regulation or government contract.
Employers are not allowed to disagree with lawful documentation that states the employment eligibility of the employee, or demand additional documentation past what is legally required when verifying employment eligibility based on the natural origins or citizenship status. IRCA also prohibits retaliation against these individuals who have filed charges or have participated in legal proceedings.
This happens when a woman is unfairly treated because of her pregnancy, of childbirth, or any medical conditions associated with pregnancies or childbirth. The Pregnancy Discrimination Act protects pregnant woman in such a way that the act prohibits mistreatment on the basis of pregnancy involving any kind of aspect of employment.
Impairments that have resulted from pregnancy may be included as disabilities under the Americans with Disabilities Act. Employers might have to provide reasonable accommodation for a pregnancy-related disability, to absent undue hardship. The ADA Amendments Act of 2008 makes it easier to prove that a medical condition is a covered disability.
The Pregnancy Discrimination Act allows employees who have temporary disabilities from pregnancy are allowed to do the same as other temporarily disabled employees – to take disability leaves or leaves without pay. If employer policies state that employees are required to submit a doctor’s statement regarding their inability to work prior to allowing them to take leaves or to receive sick benefits, then employers may also require employees with pregnancy-related conditions to submit the same statements.
The Family and Medical Leave Act of 1993 (FMLA) allows new parents to be eligible for 12 weeks of leave (unpaid or paid, if the employee has earned or accumulated it) that may be used for caring for the new child. For employees to be eligible they must have worked for the employer 12 months before taking the leave and the employer must have a stated number of employees.
Pregnant employees might have additional rights under the Family and Medical Leave Act (enforced by the Department of Labor). Mothers that are nursing have the right to expel milk in the workplace under the provision of the Fair Labor Standards Act, as enforced by the Department of Labor’s Wage and Hour Division.
This occurs when a person is treated unfavorably due to the person’s race or characteristics that exhibits the race (such as hair texture, skin color, or certain facial features). Color discrimination is the same, in that it is based on the skin color or complexion as opposed to the characteristics of the race.
Discriminating against race and color can also occur when the harasser give unfavorable treatment to a person who is associated with another person who carries the race that the harasser dislikes. It can also happen regardless of the race or color of the person who committed the offense.
Religious discrimination is identified as unfavorable treatment of a person based on the person’s religious beliefs. The law not only protects people who belong to certain religions (i.e. Christianity, Buddhism, Hinduism, Islam, and Judaism) but also to people who hold religious, ethical or moral beliefs. Discrimination in this category can also happen when a person is discriminated due to the affiliation with a person or a group of people with a certain religion that is being discriminated by the harasser.
Employers are required by law to reasonably accommodate the religious beliefs and practices of the person, unless doing such thing would cause more than a minimal burden on the business operations of the employer. Employers may be required, then, to make adequate adjustments to the work environment to allow employees to practice their religions.
All the laws enforced by the United States Equal Employment Opportunity Commission makes it illegal for employers to fire, demote, harass, or in any way “retaliate” against the people who filed charges or complained to the employer or other entity about discrimination in the work environment, or participation in a legal proceeding.
Sex-Based and Gender-Identity
This is the unfavorable treatment of a person –an applicant or employee – due to prejudice on the person’s sex. Like with a disability, a person can also be discriminated because of an affiliation with a person or group of people that are connected with a certain sex. In cases of transgendered people, this may also occur in violation of Title VII.
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