Most employees who do not work in a civil service position are employees at will. This means that they can be fired for any reason or no reason, but not for an illegal reason. All employers must obey applicable federal and state laws that govern the hiring and firing of employees. Here are five circumstances under which you should consult with an employment attorney if you suspect that you were the victim of an illegal employment action. You should always seek legal advice promptly, because the time limit for filing a claim for compensation is often very short.
1. You belong to a protected class and were turned down for a job for which you were qualified.
Not every job applicant can be hired for the job that they want. It is not always clear which applicant is the most qualified, but even if an objective standard exists for measuring aptitude for a job, private employers are not required to hire the most qualified applicant. That does not mean that employers are free to discriminate against applicants for illegitimate reasons. A number of federal civil rights laws prohibit both private and public employers from basing their hiring decisions on a job applicant’s membership in a protected class, which accounts for a variety of factors:
- National origin
- Religious affiliation
- Age (if the applicant is over 40)
- Citizenship (if the applicant is authorized to work in the United States)
Some state and local governments have enacted employment laws that protect additional classes, including:
- Sexual orientation and identity
- Marital or family status
- Medical condition (including HIV positive status)
- Political affiliation or political activity
- Military or veteran status
- Crime victim status
Being turned down for a job is not proof of discrimination. You should have an employment lawyer evaluate your situation, however, if any of the following occur:
- You have strong evidence that the person hired for the position was substantially less qualified than you.
- You (or someone you know) overheard one of people involved in the hiring process making discriminatory or disparaging remarks regarding you or the protected class to which you belong.
- The employer has a demonstrated history of failing to hire qualified applicants from your protected class.
Under any of those circumstances, or if there is other evidence of the employer’s discriminatory intent, an employment lawyer can help you decide whether your case merits filing a discrimination claim with an appropriate agency.
2. You blew the whistle on your employer and were discharged, demoted or disciplined.
Whistleblower laws protect employees who expose their employer’s illegal activities or other misconduct. Some of those laws protect government employees from retaliation. Other laws (known as qui tam laws) protect employees of private businesses who reveal acts of corporate fraud against the government. State laws may be, but are not always, stronger than federal laws. In general terms, whistleblower laws protect individuals who engage in the following:
- Telling law enforcement authorities that government officials or employees are accepting bribes or committing other crimes connected with their employment.
- Notifying the government that a private employer is billing the government for goods or services that were never supplied, is inflating bills, or is supplying the government with defective products.
- Exposing violations of lobbying restrictions.
- Cooperating with congressional investigations.
- Disclosing an employer’s illegal activity to government agencies such as the SEC, EPA and OSHA.
- Reporting violations of wage and hour laws.
If you blew the whistle on misconduct, and were disciplined or fired, you should ask an employment attorney whether you have a remedy. If you are thinking about blowing the whistle, you should ask a lawyer whether any law will protect you from retaliation and what procedures you must follow to benefit from that protection.
3. You are subject to a pattern of harassment because of your race or gender.
Sexual and racial harassment are prohibited by federal law. That law generally applies to employers that have 15 or more employees. Smaller employers may be covered by similar state or local laws. Federal courts have not taken a consistent approach to the protection of employees from harassment. In general, if you are subjected to a campaign of harassment based on your gender or race, and if the harassment is so severe that a reasonable employee would quit rather than endure it, you may be entitled to leave your job and sue for damages, including lost pay. You are, however, required to mitigate your damages by looking for a new job.
If you are subjected to harassment, you need to follow your employer’s policy (if applicable) by reporting the harassment and giving the employer a chance to fix the problem. If the employer ignores your complaint and the harassment continues, you will be in a better position to bring a harassment claim. How much harassment constitutes a pattern is a judgment call that depends upon the longevity and severity of the harassment. Most courts have concluded that a single use of a racial epithet is not enough; however, being subjected to racial slurs every day constitutes a pattern of harassment. A single sexual advance made by a supervisor may not be enough, but if you are fired for saying no, you are more than likely entitled to a legal remedy. An employment lawyer can help you understand whether the racial or sexual harassment that you have experienced will allow you to pursue a claim for discrimination.
4. Your employer refused a reasonable request to accommodate a disability.
Every disabled employee has the right to request reasonable accommodations that make it possible for the employee to enjoy an equal opportunity to work at a job for which the employee is qualified. A disability is generally a physical or mental impairment that substantially limits a major life activity. Seeing, hearing and walking are examples of major life activities.
If you are disabled and want your employer to make a change so that you can do your job as effectively as other employees, you need to ask for an accommodation and explain that your need for the accommodation is related to your disability. Examples of reasonable accommodations may include the following:
- Restructuring a work environment to make it accessible to a wheelchair
- Giving you additional time to complete a task
- Changing your hours to allow you to obtain necessary medical treatment
- Providing a TTY telephone to accommodate a hearing impairment
If your requested accommodation is reasonable (that is, it is not significantly expensive or unduly difficult to provide), the refusal to grant the accommodation (or a different accommodation that satisfies your needs) violates the Americans with Disabilities Act. You should obtain legal advice about your potential remedies if that happens.
5. You lost your job soon after your employer learned you were pregnant.
The Pregnancy Discrimination Act makes it illegal to deny employment or to take adverse action against an existing employee (such as demoting or firing the employee) because of said employee’s pregnancy. Employers often fear that a pregnant woman will not return to work after taking advantage of maternity leave benefits. The law gives a remedy to women who are fired before maternity leave starts because of the employer’s concerns about how a pregnant employee will behave. Sophisticated employers often manufacture an excuse that is unrelated to pregnancy to justify a termination.
If you are fired shortly after your employer learns about your pregnancy, and if you had positive performance reviews prior to your pregnancy, you may be in a good position to make a pregnancy discrimination claim. An employment lawyer can review the facts of your case and tell you whether the claim is worth pursuing.