Although discrimination in the work place happens every day, being able to prove it is another thing. Winning those lawsuits has always been very hard and usually when someone comes to us with a case, we recommend that they start at the Equal Employment Opportunity Commission as that is typically the first step in investigating a case. Unless you have really strong evidence (e.g. you are African-American and a noose was placed at your desk, you have an e-mail that says they are firing you because of your age, etc.) then usually you need the EEOC to determine that the law was broken to have any chance of success.
Reporting discrimination can be frustrating because the process takes a long time. Even then, with a down economy, a defense of “we needed to make some cuts” or even “he/she wasn’t good at their job” is really hard to overcome. The employer doesn’t need to prove they acted legally, you need to prove that they behaved illegally. You can know it’s true in your head, but getting actual evidence is a different story.
Well earlier this week, the US Supreme Court made these cases even harder. They said that only a person who can hire or fire can be considered a supervisor for a lawsuit. The result will make it harder to blame an employer for racial or sexual discrimination by a co-worker that the employer doesn’t stop.
In addition, the Court said that if you sue for illegal retaliation, you have to show that this was the reason you were let go, not one of several reasons. In other words, if the employer makes something up, you are screwed.
Very few labor attorneys handle these cases. Most focus on compensation issues such as vacation pay or overtime benefits. My guess is that most that do handle these claims will be dropping them or make their clients pay them by the hour to pursue them. One of the most challenging areas of law is not even worse.
The only solution to this problem will be if Congress writes a new law that changes how these decisions are being interpreted. The chances of that don’t appear strong so until then we will likely have to tell most callers with discrimination problems that we can’t help them. That said, we’ll always talk to anyone for free to see if there is any angle that could lead to a win.
Written by Michael Helfand