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Employment Discrimination - How to Protect Yourself
by
Francis J. Collins, Esquire
Many employees are under the impression that their employer has a duty to treat them fairly and equally. They believe that their employer may not "discriminate" against them. However, most forms of "discrimination" - treating one employee differently than another - are completely legal. Such legal discrimination can range from the beneficial (giving a raise to an employee with a winning personality) to the harmful (giving the worst assignment to an annoying employee). While the anti-discrimination laws provide little protection against an employer who is simply unfair, certain specific forms of discrimination are clearly illegal.
The following is a brief summary of the various types of discrimination which are illegal along with some advice regarding what can be done when you encounter illegal workplace discrimination.
In essence, the law permits an employer to make bad management decisions and discriminate against employees for any reason except for certain specific illegal reasons. For instance, an employer usually retains the right to fire an employee because of incompetence. An employer may also discriminate against employees for such subjective reasons as an offensive personality. However, an employer may not discriminate against an employee because of the employee's race, creed, color, religion, national origin, sexual orientation, marital status, certain physical or mental handicaps, age, or gender.
In addition to the well known categories listed above, there are numerous other reasons why an employer may not discriminate against an employee. They are as follows: for having filed a worker's compensation case, to avoid paying a pension, for attending jury duty, for refusing to take a lie detector test, for a juvenile record, for expunged criminal convictions and for filing a discrimination case, or for supporting others in pursuing their civil rights.
Union employees often have contractual rights such as the right not to be terminated except for "cause." This is generally the broadest protection afforded any employees. Additionally, employees of certain local, state and federal governments enjoy additional procedural protections such as the right to notice and a hearing before their termination. They may not be discriminated against because they exercised their constitutional rights such as the right of free speech. Generally government workers are also supposed to be free from retaliation for blowing the whistle on superiors involved in illegal conduct.
The above list may not be complete since the courts have the power to recognize that other reasons may be against general public policy. Examples of this may be extending the whistle blower protection to private sector employees or considering obesity a physical handicap.
Even if illegal discrimination has occurred, it is often difficult to determine where an employee should go and what remedies he or she is entitled to. There are numerous agencies such as the Equal Employment Opportunity Commission, the Maryland Human Relations Commission and the Department of Labor which may be involved. Additionally, if an employee is a member of a union or a large institutional employer he or she likely has a multi-step grievance procedure available which, at times, must be exhausted before any other action can be taken. Even after these administrative procedures have been used, it is often necessary to resort to federal or state courts.
An experienced attorney should be able to provide an initial evaluation of whether or not you have a employment related case in an hour consultation. Therefore, if you suspect you are the victim of illegal discrimination, don't sell your career short - call your attorney immediately.
