Basic Elements Of An Employment Discrimination Claim
Listed below are the basic elements of a workplace discrimination claim
and a hostile work environment/harassment claim. If you answer yes to
any of the sub-items in 1, 2 or 3 below for a discrimination claim, or
any sub item in 4 or 5 below for a harassment claim, call us immediately!
Have you been discriminated against because of your:
- National Origin
- Age (over 40)
Has a negative employment action been taken against you?
- Have you applied for a job and not been hired?
- Have you been fired?
- Have you applied for a promotion and not gotten it?
- Have you been demoted?
- Have you been disciplined?
- Have you suffered a cut in pay or benefits?
- Have you not received the same increase in pay or benefits as similar employees
outside your protected class?
- Have you received a poor performance evaluation?
Do you have direct or indirect evidence that a negative employment action
has been taken against you?
- Direct Evidence: Your employer has specifically stated that its motive
in taking the action is discriminatory (rare)
Were you fired?
- Were you qualified for the position and satisfying your employer's
- After you were fired, did your employer seek a replacement with qualifications
similar to yours?
Are You Still Employed?
- Were you satisfying the employer's legitimate expectations?
- Did you suffer an adverse employment action (demotion, pay cut, discipline, etc.)?
- Were similarly situated employees outside your protected class treated
more favorably under similar circumstances?
Have you been subject to harassment causing a hostile work environment
based upon your membership in a protected class (listed in item 1 above)?
Is the harasser a co-worker?
- Can you show that your employer knew or should have known of the harassment
and failed to take reasonable corrective action?
- Have you reported the harassment to your employer?
- Has your employer taken reasonable corrective action?
Is the harasser a supervisor?
- Is the harasser a person who has the power to hire, fire, promote, demote
or discipline you?
- Has the harasser/supervisor caused a negative employment action (see item
2 above) to be taken against you?
- If no negative employment action has been taken against you, have you not
complained to HR because the complaint would go through the harassing
supervisor or does your employer have a history of ignoring complaints,
and therefore the complaint would be futile?
Have you been sexually harassed as a condition for employment ?
Have you been subjected to unwelcome sexual advances, requests for sexual
favors or other physical or verbal conduct of a sexual nature?
- Was submission to this conduct made either explicitly or implicitly a term
or condition of your employment?
- Was your submission to or rejection of such conduct by your employer or
supervisor used as a basis for an employment decision affecting you?
- Was there a consensual sexual relationship with the supervisor?