How to Prepare a Strong Discrimination Claim Against Your Employer

By Kellie Hand

When faced with discrimination in the workplace, it is important to take action as soon as possible, as there are time limits for filing discrimination claims. The best way to protect yourself from discrimination, harassment, and retaliation is to (1) know your legal rights, (2) document everything allowed within state law and company policy (3) consult a legal professional, and (4) remember to take care of your mental and physical health. 

Know Your Rights

In the U.S., employees and job applicants are protected from discrimination in various aspects of employment under federal and state laws. These protections are based on specific “protected classes” such as Race, Color, National Origin, Religion, Sex (including sexual orientation and gender identity), Pregnancy (including childbirth or related medical conditions), Age, Disability, and Genetic Information. 

Note: The Age Discrimination in Employment Act (ADEA) protects individuals who are 40+ years old from age discrimination. However, state laws may have a lower age threshold. For example, New York State’s age discrimination law protects individuals 18+ years old.

Employment aspects protected from discrimination include (but are not limited to):

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements;
  • Recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Fringe benefits;
  • Pay, retirement plans, and disability leave;
  • Other terms and conditions of employment.

Employees are also protected from retaliation if they engage in a legally protected activity, such as reporting discrimination or participating in a discrimination proceeding or investigation. 

Document Everything 

Start by keeping a record of each incident you believe is discriminatory. This can include emails, memos, text messages, or any other form of communication. Also, make a note of any verbal conversations. Be as detailed as possible – write down dates, times, locations, people involved, what was said, and any witnesses. However, please be aware that what you can record and document will vary depending on state laws and company policies. 

Report the discrimination to your supervisor, Human Resources department, or any other relevant authority in your organization. Be sure to follow the company’s procedures for reporting, and do this in writing so you have a record of your report. Additionally, keep copies of your job evaluations and any letters or memos that show you perform your job well. This can be crucial if your employer tries to defend their actions by criticizing your job performance.

Get Legal Advice

If you feel you may be experiencing discrimination, consult with an employment law attorney right away to ensure that you are taking the best possible steps from the start. An employment lawyer can provide advice tailored to your specific situation, guide you through the process, and help protect your rights. 

Take Care of Yourself 

Experiencing discrimination in the workplace can be emotionally draining. Therefore, it is important to seek support from friends, family, or a mental health professional. Taking care of your physical health is also vital during stressful times.

US appeals court adopts lower bar for proving workplace bias claims

By Daniel Wiessner/ Reuters

Aug 21 (Reuters) – A U.S. appeals court has thrown out its unique decades-old precedent that made it more difficult for workers to prove discrimination claims.

The en banc 5th U.S. Circuit Court of Appeals on Friday revived a lawsuit claiming Dallas County, Texas, required female jail guards, but not men, to work at least one day each weekend, overruling its longstanding precedent that federal anti-discrimination law only prohibits bias in “ultimate employment decisions” such as hiring, promotions and setting pay.

That precedent imposed a more strict standard than Title VII of the Civil Rights of Act 1964 itself, which applies to any “terms, conditions, or privileges of employment,” the New Orleans-based court said.

“It is no wonder … that no other court of appeals applies so narrow a concept,” Circuit Judge Don Willett wrote for the 5th Circuit.

Jay Ellwanger, a lawyer for the plaintiffs, said the ruling makes clear that Title VII prohibits all workplace discrimination.

Read the full article from Reuters here.

Female Delta Pilot Advances Sexual Harassment, Reprisal Claims

By Patrick Dorrian/ Bloomberg Law

Delta Air Lines Inc. must face a female pilot’s claims of workplace sexual harassment and that she was retaliated against for complaining about gender bias and harassment, including by being forced to undergo retreatment for alcohol abuse.

The ruling by the US District Court for the District of Minnesota rejected Delta’s contention that the retreatment requirement and other job actions cited by the pilot weren’t adverse for purposes of proving job retaliation, but instead were “beneficial opportunities” permitted by its collective bargaining agreement with her union. Binding case law “indicates otherwise,” the court said.

According to Andrea Ratfield, Delta’s adverse employment actions also included threatening her with termination and suspension, and manipulating her use of leave so it could demote her from captain to first officer. She started drinking to deal with trauma stemming from an incident in which she was raped while attending an aviation event in September 2017, which she reported to her supervisor, Ratfield says.

Ratfield says the sexual harassment she’s experienced in her Delta tenure includes being groped, her training manager asking her on a date, a supervisor calling her “princess,” and lewd hand gestures and comments. A supervisor also allegedly bragged to others that he had seen Ratfield’s breasts while she was breastfeeding, Judge Katherine Menendez said.

Those allegations sufficiently state a hostile work environment claim under the Minnesota Human Rights Act, the judge said. The alleged acts of harassment may be “of the type brushed off by courts in different eras,” but they “comprise the sort of workplace behavior today that reasonable people” likely wouldn’t tolerate, Menendez said.

At least two of the incidents alleged by Ratfield occurred within the time period for suing, the court said.

Her retaliation claims are plausible in light of the alleged close timing—two weeks—between when she reported unfair and discriminatory treatment and when Delta refused to accept secondary test results she received that contradicted an allegedly false positive test that triggered the retreatment requirement, Menendez said.

Ratfield also alleges the retreatment facility was told that she rubbed people at Delta the wrong way and that supervisors further tried to sabotage her retreatment and effort to regain her license to fly by sharing her false positive test with the facility, the judge said.

The court dismissed Ratfield’s gender discrimination claims, including her allegations that Delta accepted secondary test results from male pilots under similar circumstances, but not from her.

Those claims require Ratfield to prove she was qualified to be a pilot and thus implicate terms of her union CBA, Menendez said. They therefore are preempted by the Railway Labor Act. RLA preemption didn’t apply to Ratfield’s retaliation claims because they don’t require proof that Ratfield was qualified for her job, the judge said.

Valli Kane & Vagnini LLP, Nichols Kaster PLLP, and Ellwanger Law LLLP represent Ratfield. Dorsey & Whitney LLP represents Delta.

Read the full article from Bloomberg Law here.

Federal jury awards woman $25.1 million in sex discrimination case against Omni Hotels and Resorts

DALLAS — A former Omni Hotels employee gained a $25.1 million jury award for wage discrimination in Dallas federal court following an eight-year-long legal battle.

“It’s overwhelming. I feel I have a little bit of self-respect back. I feel that it’s healing and I can hold my head up a little high again,” Sarah Lindsley, 48, told WFAA following a federal district jury trial.

“I was just continually blocked along the way,” Lindsley said. “I was put down as a woman. I was disrespected as a woman, as being a single mother. I just put my head down, tried to work harder, tried to prove myself for years and years.”

Lindsley worked at Omni locations in Tucson, Arizona and Corpus Christi, Texas. Although she worked her way up from a server to one of just four female food & beverage directors among Omni’s fifty-plus properties, she claimed she was “paid less than men who had the same title and did the same work,” her suit said.

The lawsuit alleged that it was part of the “’boys club’ culture that permeated Omni’s Food & Beverage Division.”

“I had gone to HR countless times,” Lindsley recalled. “I had gone to my managers countless times, I tried to follow the chain of command the entire time I was there. Nothing was done, and I felt trapped as if I didn’t have a choice.”

The jury award is against Omni Hotels & Resorts and TRT Holdings, Inc.

In a statement, Omni Hotels and Resorts tells WFAA, “The proceedings remain ongoing and there is no judgment yet in this case. Accordingly, we are unable to comment on the specifics. However, we vigorously deny these claims and affirm that Omni Hotels & Resorts does not stand for discrimination in any way. We have every confidence that we will prevail as the judicial process plays out.”

“There were multiple times along the way where there were opportunities to resolve this case, opportunities for the parties to move on,” said Jay Ellwanger, Lindsley’s attorney at Ellwanger Henderson. “And time and time and time again, Omni just wasn’t interested and they didn’t want to talk, and they just wanted to try to prove a point through continuing to litigate with us.”

“And having a client that, like Ms. Lindsley, (who) was willing to persevere for eight years through all of those ups and downs,” Ellwanger said. “It’s really a unique situation and I think it speaks to how brave she is.”

Read more from WFAA here.

Employment Discrimination-Know Your Rights

Discrimination in the workplace may be difficult to define but when it occurs, you should be aware and ready to take action. Under no circumstance is employment discrimination okay. It is important to know what qualifies as unfair and what factors you should consider before filing a lawsuit against an employer. Understanding employment discrimination in the workplace is vital when it comes to knowing what you must do if it ever happens to you.
So What Exactly is Employment Discrimination?
Employment discrimination occurs when a job seeker or an employee is treated unfavorably or unfairly because of his/her race, skin color, national origin, sex, age, disability, religion, genetic information etc. Workplace discrimination also extends beyond hiring and firing, for example, suggesting preferred candidates in a job ad, denying certain employees benefits or compensation, and discrimination while issuing promotions and lay-offs. There are many more different forms of employment discrimination and laws to protect employees. Listed below are some of the most common cases:
Racial Discrimination – Racial Discrimination takes place when a potential employee, employee or a group of employees are treated differently or unfairly based on their race or because of characteristics associated with race including facial features, hair, or color of their skin. Title VII of the Civil Rights Act of 1964, prohibits discrimination based on race as well as color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
Age Discrimination – Age Discrimination comes about when an employee is treated in an unfair manner because of their age, for example, being treated poorly because you are ‘too old’. The Age Discrimination Employment Act (ADEA) protects employees who are 40 years old and older. In addition, under the NYHRL, Section 3-a, it states that it is unlawful for any employer to refuse employment or compensation to any person 18 years old and older because of their age.
Gender, Sexual Orientation, and Hostile Workplace Discrimination

  • Equal Pay-Gender discrimination includes sexual discrimination and/or sex-based discrimination. This occurs when any employer treats an employee in an unfair way or inequitable manner based merely on gender. This includes equal pay for men and women which is federally protected under the Equal Pay Act of 1963.
  • Sexual Orientation-Sexual Orientation discrimination also falls under this category when being homosexual, heterosexual, bisexual or trans gendered impacts the way you are treated in the workplace or during the recruiting process. This kind of discrimination is protected under the Civil Rights Act and would be further be protected in a bill that is still awaiting passage by congress called the Employment Non-Discrimination Act (ENDA).
  • Sex/Hostile Work Environment– Also protected under the Civil Rights Act, Sex/Hostile Work Environment is discrimination based in a sexual hostile environment. The “hostile environment” law also applies to harassment on the bases of race, color, national origin, religion, age, and disability.

National Origin & Religion Discrimination – Our country is widely mixed with people from different parts around the globe. National Origin discrimination occurs when an employee is ignored and/or treated poorly because of his or her accent, nationality, or ethnicity. Companies are required to fairly accommodate an employee’s religious and cultural beliefs as long as they don’t negatively interfere with the workplace environment. This act of discrimination is protected under Title VII of the Civil Rights Act.
Disability Discrimination- The Disability Discrimination Act focuses on the specific needs of the blind, partially blind, physically or mentally handicapped or people with disabilities. Disability is defined by the Americans with Disabilities Act of 1990 (ADA) as a physical or mental impairment that considerably limits a major life activity. Discrimination includes denying employment opportunities to people who are disabled but qualify for the position or not accommodating the known physical/mental limitations of disabled employees
Pregnancy Discrimination-There are laws that protect pregnant women and people with disabilities under the Civil Rights Act and the Pregnancy Discrimination Act. Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions. Additional rights are available to women and others under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.
If you feel you may be a victim of employment discrimination, let us help you protect your rights. Call the Law Offices of Valli Kane & Vagnini today for a free consultation.

Bovitz v. Wells Fargo – A Discrimination Lawsuit

{Read in 2:30 minutes}  Bovitz v. Wells Fargo - A Discrimination Lawsuit by Monica HinckenImagine dedicating almost 35 years to the financial industry. You work hard. You are successful. You build an impressive book of business. And yet, you are continuously hindered from reaching your potential – not because you are not qualified, because you are; not because you do not have the necessary experience, because you do.  You are passed over because you are an older woman. Our client, Judith A. Bovitz, who is 69 years old, has been experiencing this for years. After every step taken to remedy the situation internally failed, she filed a Federal Lawsuit last month against Wells Fargo Advisors (“Wells Fargo” or the “Company”).Continue reading

Employer Discrimination by Disparate Impact

Employer Discrimination by Disparate Impact by Robert J. Valli
{Read in 3:30 minutes}  In my last article, I discussed a pattern of discrimination in terms of the disparate impact on African Americans. But what does “disparate impact” mean?  In 1971 the Supreme Court adopted the position of the Equal Employment Opportunity Commission (“EEOC”). In Griggs v. Duke Power Co. (1971), the Court invalidated an employer’s requirement that applicants have a high school diploma and/or pass aptitude tests for hire and transfer into more desirable departments where prior to the enactment of Title VII the company had restricted blacks to labor positions. Specifically, the Court stated:

The Act proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.Continue reading

Fire Department Discrimination Against African American Non-Firefighter Employees

Fire Department Discrimination Against African American Non-Firefighter Employees by James Vagnini{Read in 2:30 minutes} The New York City Fire Department is filled with extremely brave men and women, some out in the field and many behind the scenes. While there is certainly a long and illustrious history of dedication and incredible courage, unfortunately over the years there have also been repeated allegations of racial discrimination. As recently as 2014, the city agreed to pay $98 million to settle what is known as the “Vulcan” case to address allegations of racial bias against New York City Firefighters.  Now, in a federal lawsuit, our firm, Valli Kane & Vagnini LLP and Washington D.C. based Mehri & Skalet filed on behalf of civilian workers of the FDNY and a federal judge ruled that the case can move forward.Continue reading

Workplace Discrimination? Get that Complaint Filed!

Employees in this country have protections against workplace discrimination and harassment. These include protection from sexual or racial harassment, national origin, religion, age, disability, and gender (including sexual orientation) discrimination. These forms of harassment and discrimination are spelled out under Title VII, and its amendments, which is the statute enacted as a result of the Civil Rights Act of 1964.
Workplace Discrimination? Get that Complaint Filed!
Prior to that time, there had been other federal statutes such as §1981 and §1983 which address primarily race and national origin discrimination as well as retaliation. These sections, however, did not include gender, religion, disability, or age discrimination. As a result of the civil rights movement, the Civil Rights Act was passed, which was designed to specifically address workplace discrimination and expanded protections for employees subjected to these additional types of discrimination.
The Title VII statute empowered what is known as the Equal Employment Opportunity Commission (EEOC) and created that faction of the government whose job it is to survey and take complaints of workplace discrimination. Anyone wanting to bring a complaint and go into Federal court under those claims has to first go through the EEOC administrative process. As a federal statute, it is the same in every state and any employer who has 15 employees or more is subject to the statute.
The EEOC Filing Deadline
Title VII sets a complaint filing deadline of 180 calendar days. However, it also provides that in any state where there is a similar employment discrimination statute, such as New York, the deadline may be expanded to 300 days. With the exception of a few states like New Mexico and Georgia, every state in this country has a state-level statute against workplace discrimination. In those states that do not, the filing period is limited to the 180 days.
A complaint must be initiated when the harm takes place. You can’t have something happen two years earlier and then wait, worrying whether you are going to lose your job. That is certainly a legitimate worry, but if you choose to wait and try to raise that complaint after the 180-300 days have passed, it will be considered untimely because the statute requires you to make that complaint within 180-300 days of the occurrence of discrimination.
However, certain claims trigger the 180-300 day filing requirement after the last occurrence of discrimination where the discrimination takes place over a period of time. This type of discrimination is known as a “continuous violation.” For example, if you are a victim of sexual harassment and you were subjected to repeated, unwanted sexual advances or comments over a period of months, the clock starts running from the last act of harassment, not the first. Most employees do not know this.
If you believe you have a legitimate complaint, it is extremely important that you make use of resources like the EEOC’s website, or contact a lawyer like us to ask for information about what to do, even if you choose not to act on it at that time. Failing to act in many states leaves you high and dry, without any other protection, because either there is no state statute, or in more conservative jurisdictions like Texas, for example, the states only adopt the same 180-day rule as Title VII.
Paying attention to the EEOC deadlines is an important issue because an employee may have a very strong legal claim but if they do not act within a certain period of time, or get the information to act within a certain period of time, their claim may be completely barred leaving you with no avenue for justice.

James A. Vagnini
Partner
email: [email protected]