- You must be in a protected category of gender, race, age, or disability. You may also have facts which indicate that you are being retaliated against or have suffered some other form of wrongful termination.
- You must have suffered some “adverse” employment action-i.e. you must have been terminated, suspended, demoted, denied essential benefits of your job, put on a performance improvement plan without justification, etc. Note that you must file your EEOC charge within 180 days of this event.
- The employer is not able to show a legitimate business reason for the employment decision. This means that you should not have given the employer a good reason to fire you because of your performance or the employer cannot point to statistical data which shows that you are not the only individual being terminated. Performance based reasons can sometimes be fabricated but you must be in the position to prove that that is the case.
- There is a consistent pattern of you being treated differently from others in your department or at your position. This is the key element-disparate treatment. You must be able to show that you are being treated differently from peers or others in your department and that the reason you are being differently is because of your membership in the protected category.
If you are experiencing something that fits these categories you may have suffered some form of discrimination at work. Look at the other blog posts on what to do next and call an attorney.In many instances, you may not have been terminated yet but you might be in a better position to negotiate a separation agreement or evaluate the strength of your case. At the first sign of something amiss, you should start paying careful attention to how you are being treated differently from your peers. Are they being allowed opportunities that you have asked for and have been denied? Does your supervisor over look your peers performance deficiencies but write you up for yours? Can you prove it? This is really the most important question of all. While many employment cases are a “he said, she said” you should think about the scenarios where you feel you have been treated differently and think about what documents might be able to show the difference in treatment. Your strongest case is proved through written documents like emails, company memoranda, prior performance reviews, etc.At this very difficult time, beware of HR. Regardless of what they say, consider who they work for when deciding whether your HR representative or generalist is truly your ally at the company. They may claim to do an investigation into your complaints of discrimination or disparate treatment but the only person they are looking to protect is the company. Be careful in all of your communications with HR and assume that everything you say will be used against you.Please accept the content of this Blog for informational purposes only. This Blog is not meant to provide legal advice on your specific circumstances but rather, to give employees a general understanding of the legal issues affecting them. If you believe you have suffered discrimination, retaliation or wrongful termination in the work place, you must contact an attorney for advice on your specific facts.