Federal laws prohibit discrimination because of one's age, race, gender, religion, national origin, a protected disability, the disability of a spouse or a child, use of FMLA, due to the use of medical benefits, due to military service, due to jury service, and due to other protected reasons. Most state laws prohibit some or all of these forms of discrimination.
There are many ways of proving discrimination, and if you believe you have been discriminated against in connection with the termination of your employment, please let us evaluate your case. It is rare that an employer will make a statement indicating a discriminatory intent during a termination (i.e. “I'm firing you because I want someone younger”, although this does happen), but often times remarks indicating a bias or discriminatory intent are made in the days leading up to a termination. These statements can help prove a discriminatory motive. Also, circumstantial evidence can help prove a discriminatory intent such as, in an age case, firing older employees while hiring younger employees, or treating older employees differently (more harshly) than younger employees.
A person's age, race, or sex, however does not need to be the only reason to make an adverse action, such as termination, illegal. Age, race, or sex merely has to be a factor that made a difference in the employment decision. In other words, even if there are other nondiscriminatory reasons for the employer's actions, an adverse action is illegal if a person's age, race, or sex was a factor that made a difference.
In discrimination cases, it is often necessary to able to prove the employer's stated "nondiscriminatory" reason for an adverse employment action is a pretext or is trumped up. Demonstrating that the employer's explanation is not worthy of belief may show pretext. To meet this burden, the employment attorney must have obtained the relevant documents and have the ability to cross-examine witnesses effectively in order to show the reason stated for termination is trumped up and not the real reason. In our view, the ability and desire to do so in a wrongful discharge case or a discrimination case is an art, and it is our passion. Often, it is during this process where cases are won and lost.
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Usually, to preserve your rights under Federal law you will have to file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) as well as with the state agency responsible for investigating such claims. The time limits to do so are relatively short and the amount of time you have to file a charge depends on whether the state has an agency that investigates the type of conduct you are complaining about. Before you file a workplace discrimination charge and/or retaliation charge, we strongly recommend that you seek legal advice from an experienced employment attorney to make sure that you have properly preserved all your claims. If you fail to properly include claims in the charge, you may be limited in the type of claim that you can make in Court, and/or potentially, at trial you could be subject to impeachment for failing to mention it initially in the charge.Also, sometimes, it is more advantageous to file a lawsuit under state law if the state discrimination statute permits this rather than file administratively. Under some state employment discrimination statutes, if you pursue a charge administratively you may be giving up your right to file a case under the state law. Also, the time limits, in a number of states, for filing a case are generally longer than the time limits for filing an EEOC charge. As a result, a claim barred because of time limits under federal law may not be barred under the state statute. These legal issues and/or potential landmines illustrate why you should seek competent legal advice.
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We typically take these types of cases on a contingency fee basis, but we examine the facts very carefully before we agree to accept a case. Situations vary, but factors we consider in deciding whether to accept a case usually include some combination of the following:
1. The real reason for the employee's termination must be illegal; 2. There must be evidence showing a causal connection between the termination and the real illegal reason; 3. The employee and employer must meet the minimum requirements to be covered by the applicable statute; 4. There must be proof that the reason given by the employer for the termination is trumped up; 5. Other factors that we may consider include how long the employee worked at the company, the employee's job performance, the employee's disciplinary record (or lack thereof), evidence that the employer acted unfairly, vindictively or stupidly, and whether other employees have also been wrongfully terminated.