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!

1. Have you been discriminated against because of your:
   • Race
   • Color
   • Sex
   • Religion
   • National Origin
   • Age (over 40)
   • Disability
   • Pregnancy
2. 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?
3. Do you have direct or indirect evidence that a negative employment action has been taken against you?
   1. Direct Evidence: Your employer has specifically stated that its motive in taking the action is discriminatory (rare)
   2. Indirect Evidence:
      1. Were you fired?
         • Were you qualified for the position and satisfying your employer's legitimate expectations?
         • After you were fired, did your employer seek a replacement with qualifications similar to yours?
      2. 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?
4. Have you been subject to harassment causing a hostile work environment based upon your membership in a protected class (listed in item 1 above)?
   1. 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?
   2. 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?

5. Have you been sexually harassed as a condition for employment?
   1. 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?