Discrimination in the Workplace

Though it might surprise some reading this, unlawful discrimination is a very real problem within the workplace today. If you feel that you have been the victim of a hostile work environment, discriminatory treatment, or retaliation, give me a call and I will be happy to set aside time and discuss your case with you. You may have claims under a number of State and Federal Statutes.

If you’re trying to decide whether or not you should pursue a claim please look at the helpful information below. It might help you decide whether or not you have been discriminated against. In determining whether or not a person was the victim of discrimination, the Courts use what’s called the Prima Facie case standard. It basically consists of the following elements:

1. The plaintiff is a member of a protected class.
2. The plaintiff applied and was qualified for the job.
3. The application was rejected.
4. The position remained open after the rejection.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 505-507.

Now in the case of discriminatory treatment of a current employee factor 2 becomes whether or not the employee was performing the position to the reasonable expectations of the employer. Factor 4 becomes whether or not similarly situated employees not of a protected class were treated more favorably.

Let’s consider what a constitutionally protected class is.
A protected class is created when an employer unlawfully discriminates against an employee on the basis of race creed, gender, disability, age or a number of other factors. To provide examples we’ll look at Wis STAT 111, the Fair Employment Act of Wisconsin. This Act is roughly analogous to the ADA, ADEA as well as Title VII, with some minor differences. The Wisconsin Fair Employment Act provides that it is unlawful for employers, employment agencies, labor unions and licensing agencies to discriminate against employees and job applicants because of any of the following:

Protected classes

• Age
• Ancestry
• Arrest Record
• Color
• Conviction Record
• Creed
• Disability
• Genetic Testing
• Honesty Testing
• Marital Status
• Military Service
• National Origin
• Pregnancy or Childbirth
• Race
• Sex
• Sexual Orientation
• Use or nonuse of lawful products off the employer’s premises during nonworking hours (WI Legislature website)

• Employees may not be harassed in the workplace based on their protected status nor retaliated against for filing a complaint, for assisting with a complaint, or for opposing discrimination in the workplace – read Retaliation Protection under The Fair Employment Law

Do you believe that your employer discriminated against you on the basis of the above factors? If so let’s move on to the second element.

The applicant or employee was qualified for the position or was performing to the reasonable expectations of the employer.

This factor is fairly straightforward, either you meet the required qualifications or you do not.

As for meeting the reasonable expectations, consider your work history and consider the following questions:

• Were there any employment evaluations performed of you by your employer? If so these might prove helpful.
• Have you ever engaged in any misconduct or do you have any prior history of misconduct at the workplace? If so this does not preclude you from pressing a claim, you may be the victim of pretext based discrimination.
• Are there any other reports, records or employees that would tend to indicate that you were performing your work to the reasonable expectations of your employer?

If you were disciplined or terminated for misconduct you may still have a claim provided that similarly situated employees engaged in the same misconduct and were treated more favorably or less severely.

Did you suffer an adverse employment decision?

Did the job remain open after your application was rejected or were you terminated demoted or laid off? Were similarly situated employees treated differently? Were you terminated when similarly situated employees were not?

Did the position remain open after you were rejected or were similarly situated employees treated in a more favorable fashion?

This is again a fairly straightforward question. After your application was rejected did the employer continue attempting to recruit the position?

Likewise if you were terminated disciplined or fired, were similarly situated employees treated in a different fashion? Did any of these employees share any of the characteristics (race, age, religion, disability etc.) that you think may have motivated your employer to discriminate against you?

These are the sorts of factors that could indicate discrimination on the part of an employer. If you’re confident that you are the victim of workplace discrimination give me a call, all initial consultations are free.