Discrimination FAQ

Q: Do the anti-discrimination laws protect only women and minorities?

A: No. The anti-discrimination laws protect all workers from employment decisions based on protected status. Thus, if an employer pays a female worker better wages than a male worker performing the same job, that employer has discriminated against the male worker based on his sex in violation of Title VII. Similarly, if an Asian-American worker who misses three days of work is suspended but a Caucasian worker who misses three days of work is fired, then the Caucasian worker has been discriminated against based on his race.

Discrimination Based on Race

Federal law forbids job discrimination because of race. Executive Order 11246 also requires that employers doing business with the federal government not discriminate because of race and take affirmative steps to hire and promote racial minorities. Most states and many local governments have laws prohibiting racial discrimination in employment . These laws protect all races, including African-Americans, Hispanics, Asians, Native Americans, and Caucasians.

Q: How do I know if an action is discriminatory in violation of the law?

A: First, not all discriminatory actions are forbidden by law. The law only prohibits discrimination when it is based on a person's protected status--race, color, religion, national origin, sex, age or disability under federal law.

Thus, if an employer makes a decision because of an employee's race, that employer has engaged in prohibited discrimination. Paying a worker lower wages than other employees because that worker is an African-American black violates Title VII. But paying a worker lower wages than other employees because that worker is performing different kinds of job duties does not violate Title VII. The question is whether the reason for the difference in treatment is based on the employee's protected status. Different treatment based on protected status is called intentional discrimination or disparate treatment.

Title VII also prohibits conduct that has the effect of discriminating against individuals in a protected class even if the employer's reason for the different treatment is not based on protected class. For example, an employer may decide to hire only applicants who do not have custody of preschool age children. On its face the reason for the employer's hiring decision is not a protected class reason. However, the effect of this policy is to disproportionately screen out women applicants as compared to male applicants because more women are custodial parents. This policy, therefore, would have a discriminatory effect, also called adverse impact. Adverse impact discrimination is also forbidden by Title VII unless the employer can prove that the policy is required by business necessity and is significantly related to the requirements of the job.

The ADA defines discrimination not only in terms of disparate treatment and adverse impact but also in terms of a refusal to provide reasonable accommodation to an otherwise qualified individual with a disability.

Seniority Systems and Anti-Discrimination Laws

Bona fide seniority systems are immune from attack under Title VII and the ADEA. A seniority system is bona fide so long as it was not established for the purpose of discriminating against a protected class and is applied equally to all employees covered by the system.

A seniority system that has an adverse impact is considered a bona fide system. Thus, decisions as to who is laid off during a down turn in business based on who has the least seniority are legal, even though all the most recent hires (and therefore all the employees laid off) are female.

Q: Besides hiring, what other aspects of the employment relationship are regulated by the anti-discrimination laws?

A: The laws regulate all aspects of work, including hiring, firing, promotions, job duties, wages, benefits, and reviews. Generally speaking, the laws do not require an employer to provide specific benefits or to institute job review procedures or to draw up job descriptions. Rather, the employer is allowed to establish its own policies so long as they are applied to all employees in a non-discriminatory manner and so long as the policies do not have the effect of discriminating against a protected class.

Q: What are the major federal anti-discrimination laws?

A: Title VII prohibits discrimination based on race , sex, color, national origin or religion. The ADEA prohibits discrimination based on age (if over forty). Title I of the ADA prohibits discrimination based on disability.

Almost every state has anti-discrimination laws that mirror the protections found under federal law. Some states also have more expansive protection than federal law, for example, prohibiting discrimination based on marital status, sexual orientation or weight.

Sexual Orientation Discrimination

The meaning of the term "sex" discrimination as used in Title VII refers to gender and does not include discrimination based on sexual orientation. There are some states, however, such as California, Hawaii and Wisconsin, and some cities, such as Chicago, whose anti-discrimination laws prohibit discrimination based on sexual orientation.

Q: What should I do if I think I have been discriminated against in violation of the law?

A: It is usually a good idea to bring your complaint directly to the attention of the employer and attempt to resolve the problem on an informal basis. The employer may not be aware that there are individuals within its organization who are discriminating, or the employer may want to address your complaint and fix the problem.

If, however, you want to pursue a legal remedy, you should get expert advice and act relatively quickly. Anti-discrimination laws have strict time limits for making a claim. The federal laws require employees to file a complaint first with the EEOC before filing a lawsuit in court. In some circumstances an employee is also required to file a complaint with the state agency charged with enforcing the state anti-discrimination laws.

Lastly, if fired or not hired for discriminatory reasons, you should look for another job. Do so even if it seems that you are entitled to the former job. If you do not actively seek other work, it appears as though you are not seriously interested in employment. This can weaken your claim and may limit any award of back pay.

FedEx Strategy Backfires in Punitive Phase

The Recorder
By Matthew Hirsch
June 6, 2006

Chart: Top Verdicts in Alameda County

The $61 million judgment against FedEx Corp. awarded June 2 in Alameda County capped off a catastrophe at trial for the worldwide shipping company.

In trial to fend off claims of discrimination and harassment against two drivers of Lebanese descent who claimed a manager subjected them to racist epithets, FedEx bet on joint legal representation.

The company went into the trial with one firm, Seyfarth Shaw, representing it and company manager Stacy Shoun. This, observers say, tied the company's fate to whether the jury believed the defendants' claim.

That backfired when the jury awarded $10 million in compensatory damages, twice as much as the plaintiffs had asked for.

At this point, the company sidelined its lawyer and brought in new counsel to, in essence, plead for mercy. That didn't work either. The jury tacked on $50 million in punitive damages.

"Typically, when you go to a trial with joint representation the defendant thinks it's a strong case and they are going to win," said Nancy Abell, a partner at Paul, Hastings, Janofsky & Walker.

If the trial reaches the punitive phase, Abell said, the damage may have already been done.

"If you can see the result coming or that it could come, you would want each of the parties feeling that it had its counsel figure out the best strategy at the trial phase, not just the damages phase," she said.

FedEx maintained that the problem wasn't its legal strategy, but the jury.

"FedEx firmly disagrees with the jury's verdict," FedEx spokesman Perry Colosimo said in a statement. "We believe it is excessive, and we will vigorously appeal to a higher court."

FedEx attorneys declined to discuss the case, and Colosimo wouldn't talk about the attorneys' strategy.

Defense attorneys have argued that FedEx has a strong policy against racial and ethnic discrimination and denied that Shoun mistreated the two drivers.

But after the jury found FedEx and Shoun had acted with malice, Seyfarth's James Nelson withdrew from representing Shoun, and FedEx called in a new trial team to argue the rest of the way.

"Now that the [compensatory] award came down, they started distancing themselves from Stacy Shoun like he was a leper," said San Francisco attorney Christopher Dolan, who represented the plaintiffs.

That didn't work, Dolan said. Nor did bringing in a bunch of new lawyers. "The jury walks in and sees a bunch of suits out there," he said. "I don't think it helped them."

The last-minute flood of new lawyers looked like the company hadn't accepted the jury's decision and was trying to cut its losses.

The result was the largest single civil rights judgment under California's Fair Employment and Housing Act and the fourth-largest verdict in Alameda County history.

Still, one lawyer on the defense side came out feeling pretty good.

Howard, Rice, Nemerovski, Canady, Falk & Rabkin's Kenneth Hausman, who joined the defense last Tuesday as Shoun's attorney when the defense split, kept his client's punitive loss to a mere $56, less than it would cost to overnight a box of chocolates and a written apology to both plaintiffs.

Hausman said he was "surprised but relieved" by the verdict, especially since he was given less than two days to prepare for trial, and the compensatory award — including $1 million against Shoun — meant the new lawyer faced a difficult situation.

"It was pretty clear since they had already found malice that they were going to award punitive damages," he said. "I think we did a great job at keeping the punitive damages at $56 when the jury came back with $50 million against Fed Ex."