The following is an article I recently wrote for the ABA GP-SOLO periodical. It is geared toward other attorneys but employees may find it helpful in thinking about their cases. Note, for employees in California, I would generally recommend against filing claims under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act because California’s anti-discrimination laws are generally more favorable to employees.
With layoff-fueled unemployment hitting record levels amid a severe economic downturn, more jobless workers are filing discrimination suits than ever. According to the Washington Post, private sector job bias charges filed with the EEOC in 2008 were up 15% from 2007 and up 26% from 2006. That trend is expected to accelerate in 2009.
Meanwhile, recent legislation and court decisions have helped pave the way for more discrimination lawsuits. In 2005, the Supreme Court held that victims of age discrimination need prove only that a layoff had a “disparate impact” on older workers, not that it was intentional. In 2008, Congress widened the scope of disabilities falling under the protection of the Americans with Disabilities Act to include employees who depend on medication or devices. In 2009, the second bill signed into law by a newly-minted President Obama overturned a Supreme Court decision that had held that Equal Pay Act lawsuits could only be brought by employees who file EEOC charges within 180 days of each discriminatory paycheck, regardless of actual knowledge or discovery of pay disparities. With pro-employee Democrats occupying the Presidency and in control of Congress, the legislative and judicial trends in favor of employees are expected to continue.
If you are getting inquiries from clients with discrimination claims, here are some of the things you need to know. The panoply of federal antidiscrimination laws – the Age Discrimination in Employment Act (age discrimination), the Equal Pay Act (gender pay discrimination), Title VII of the Civil Rights Act of 1964 (race, color, sex, religion, and national origin discrimination), and the Americans with Disabilities Act (disability discrimination) – is too broad and numerous to address here. However, a focus on Title VII and the ADA (which piggybacks onto and incorporates the enforcement powers, remedies and procedures of Title VII) is appropriate given they together encompass the vast majority of discrimination complaints filed with the EEOC each year (i.e., race, sex and disability discrimination).
As you evaluate the attractiveness of potential Title VII and ADA claims, here are the some of the preliminary items you need to ascertain at the outset.
- Covered Employers. How big is the employer? The provisions of Title VII and the ADA only apply to employers with 15 or more employees.
- Covered Employees. Is the claimant covered by Title VII and the ADA? Title VII extends protections only to employees and job applicants, but not independent contractors. Note, just because an employer has labeled someone an independent contractor does not make them so. The courts have established numerous multi-criteria tests to determine whether someone is an employee or an independent contractor. The ADA covers the same employees as Title VII but further requires employees to have, have a record or history of – or be perceived by the employer to have – a mental or physical impairment that substantially limits a major life activity (such as sleeping, eating, walking, etc.). At the same time, the claimant must not be so disabled that they are unable to perform the “essential functions” of their job with (or without) accommodation. An amendment that took effect on January 1 of this year now extends ADA protections to disabled workers who rely on medication or devices, even if they ameliorate disabilities completely.
- Covered Actions. Did the employer do something that is lawsuit-worthy? Adverse employment actions on which a plaintiff may sue need not rise to the level of job termination. Any action reasonably likely to deter employees from engaging in protected activity can be litigated. This federal deterrence standard extends protections to a broader spectrum of activities than some state anti-discrimination laws. In Pardi v. Kaiser Found. Hosps. , 389 F.3d 840, 850 (9th Circ. 2004), the court ruled that an employer’s failure to turn exculpatory records over to a government agency investigating a former employee constituted an “adverse employment action” that could form the basis for an ADA discrimination lawsuit.
- Damage Caps. Do the damages justify bringing suit? In cases where compensatory and/or punitive damages are available, Title VII and the ADA impose caps on the combined sum of those damages (excluding lost wages) ranging from $50k to $300k depending on the employer’s size. Attorney fees are also available to prevailing plaintiffs under both statutes, but at the court’s discretion.
- EEOC Charge Requirement. Have statutes of limitations expired? Title VII and the ADA require employees to file a charge with the EEOC within 180 days of the last discriminatory act before they can bring a civil suit. Employees have the option of filing a charge with their state anti-discrimination agency in which case they have to file a charge with the EEOC within the earlier of 300 days after the last discriminatory act or 30 days after notice that the state agency has terminated proceedings. Some state anti-discrimination agencies have a “work-sharing agreement” with the EEOC such that filing with one is automatically deemed a filing with the other.
- Individual Liability. Is individual liability important to the claimant? Most courts hold that supervisors and co-workers who do not qualify as “employers” may not be held individually liable for violations of Title VII or the ADA. Only the employing company may be liable.
- State vs. Federal Laws. Are state anti-discrimination laws better? Some state anti-discrimination laws afford greater protections to workers than Title VII and the ADA. For instance, they may have no damage caps, longer charge filing periods, mandatory attorney fees, broader coverage of employers and employees, etc. State anti-discrimination laws are preempted by their federal counterparts only in the rare event there is a conflict. Thus, in such states, claimants may be better off filing suit under their state’s laws. Another thing to consider: the inclusion of Title VII and ADA claims in your state court complaint may introduce the risk of Federal Question removal to Federal court; not necessarily a bad thing depending on your jurisdiction, not to mention local docket conditions and backlogs, but certainly something to consider.
For more information, visit the website for the Equal Employment Opportunity Commission .