Areas of Practice

Do I Have a Case?

This page is to assist you in determining if you have a case. If you believe that your are a victim of discrimination because of your race, sex, national or ethnic origin, age, disability, or religion, if you believe you are the victim of sexual harassment, if you have recently taken Family and Medical Leave or you have not been paid wages or overtime, please scroll through to the subject that you believe applies to your case. We have provided only a few very limited examples designed to give you a sense of different types of discrimination. This page is for informational purposes only. It is not legal advice and is no substitute for the fact-specific advice an attorney can provide after discussing the facts of your case in detail.

Fired Because of a Criminal Record.

If your employer has fired you because they did a background check on you and found you had a criminal record, you may be entitled to damages. However, you will not be entitled to damages if you failed to disclose the criminal record to your employer when they specifically requested you to disclose it. You also may not be entitled to damages if your criminal record has any bearing on your ability to do the job. For example, if you have been convicted of retail theft and wish to maintain employment as a retail sales clerk then, because your criminal record has a bearing on the job that you will be doing, the employer may be entitled to terminate your employment, or not employ you on that basis.

Sexual Harassment

There are two types of sexual harassment: (1) "hostile environment" sexual harassment and (2) "quid pro quo" sexual harassment. We'll tell you about both types below.

(1) "Hostile Environment" Sexual Harassment

This type of sexual harassment occurs when your work environment becomes hostile because of sexual overtures, sexual advances, sexually-related talk, or sexual innuendo that causes you to be significantly uncomfortable in your working environment. Perhaps your supervisor or your fellow employees use sexually offensive language. Perhaps another employee has commented on your appearance in a way that you find offensive. (For example, asking if you are wearing underwear.) If someone you work with has said or done things like those listed above, you may have a case of sexual harassment. Remember that you do not have to be "the boss" to commit sexual harassment. Sexual harassment can be committed by anyone - your fellow employees or even people you supervise. However, there is one important difference between sexual harassment by a co-employee and sexual harassment by a supervisor: you must complain to someone in management about sexual harassment by a co-employee to be protected by the law (unless your employer learns about it in some other way). If your employer is made aware of sexual harassment and fails to do something to stop it, you may be able to sue.

(2) "Quid Pro Quo" Sexual Harassment

This type of sexual harassment is committed when your supervisor tries to get you to exchange sexual favors for job benefits or threatens to hurt your career if do not provide such favors. For example, if your supervisor asks you out on a date and tells you it would help your career if you agreed to go, he or she is committing quid pro quo sexual harassment. Quid pro quo sexual harassment also occurs if your supervisor threatens to hurt your career if you do not provide sexual favors (i.e.: telling you that you will be demoted if you do not go out on a date). Sometimes quid pro quo sexual harassment occurs when there has already been a consensual relationship and the employee wishes to end it but the supervisor, not wishing for the relationship to end, coerces the employee into continuing it. This is a significantly abusive situation requiring immediate involvement by a lawyer.

Race Discrimination

Race discrimination in the work place is often subtle. If you are a person of color, or you are Hispanic, native American or Asian, and you have not been given the same employment opportunities as others who are Caucasian, there is a possibility that you are being discriminated against on the basis of your race. For example, if you apply for a position and are as qualified or more qualified than a white person who also applies and you are not hired, then you might be the victim of race discrimination. You might also be the victim of race discrimination if your supervisor or co-employees use racially offensive language or refer to you in other ways that indirectly reference your race, or if Caucasians are given extra benefits or opportunities despite being your equal.

Discrimination of the Basis of National Origin or Religion

This is discrimination based on where you come from or what you believe. You cannot be discriminated against because you are born in the Ukraine or in Italy or somewhere else. Neither can an employer (generally) discriminate against you on the basis of religious belief.

Disability Discrimination

In order to be protected by the Americans with Disabilities Act, you must have a disability covered by the Act. This website is too short to set forth all of the many illnesses and conditions that are considered "protected" under the Act. If you have a disability and you have requested your employer to give you a reasonable accommodation and your employer fails to give you that accommodation (when it can do so without causing an unreasonable inconvenience) and you suffer an adverse employment consequence as a result then you may have a case under the Americans with Disabilities Act.

Also, if your employer knows that you have an ailment or an illness (which is covered with Americans with Disabilities Act) and you can still do your job but your employer has nonetheless, not permitted you to do it or has denied you employment possibilities or opportunities as a consequence, this may also constitute a case based on the Americans with Disabilities Act.

Age Discrimination

If you are over 40, you are in a protected category as far as age discrimination is concerned. This means that if a person under 40 is given your job and you are terminated, you may have a case for age discrimination. Further, if you apply for a position and it is given to a younger person, despite equal or better qualifications on your part, you may also be the victim of age discrimination. In addition, if you are referred to in any way that indicates that age is an issue in your employment (such as if a supervisor tells you that you probably need glasses because you cannot do your job properly, asks you if you took your "Geritol", today or states that perhaps it was time to retire because you can't do your job anymore) you may be the victim of age discrimination.

Discrimination for Taking Family and Medical Leave

If your employer has over 50 employees and you have worked in your position for one year, have put in hours in excess of 1,250 over the past year, and have taken family and medical leave, your employer is obligated to give you your job back or your equivalent job back after you return. Failure to do so is a violation of the Family and Medical Leave Act. Family and medical leave is available for a severe medical problem or to take care of a spouse or an immediate family member, such as a parent or a child. Family and medical leave is available for ninety (90) days a year and is generally unpaid. Normally, problems with family and medical leave do not arise until you return to work. Sometimes however, the employer may terminate you during family and medical leave and will give an excuse that you simply were not doing your job properly before you took that leave.

An Overview of Procedural Aspects of Bringing an Employment Discrimination Case

You should speak with an employment lawyer as soon as possible if you believe you have a discrimination claim or other employment-related case. With certain exceptions, you cannot file an immediate action in court when you have a discrimination or whistleblower claim against a private employer. Usually, the law requires that you pursue what are called "administrative remedies." Usually, this means you must file a written complaint with a state or federal agency and allow the agency time to investigate it before you go to court.

Federal Discrimination Law

Title VII of the Civil Rights Act of 1964 is the principal federal equal employment opportunity law. It protects employees from discrimination based on their sex, race, religion, color, pregnancy or national origin. It also protects employees from sexual harassment and from retaliation for complaining about harassment. It applies to private employers who have fifteen or more employees. It also applies to governmental agencies, employment agencies and labor unions.

Age discrimination is prohibited by the Age Discrimination and Employment Act of 1967 (the ADEA). The act protects individuals age forty or over from discrimination on the basis of their age. This protection extends from hiring to any other conditions of employment based on age. In order to be subject to the ADEA, the employer must have twenty or more employees.

The Americans with Disabilities Act of 1990 (the ADA) prohibits discrimination against individuals who have a disability. Like Title VII, it applies to employers who have fifteen or more employees.

In Pennsylvania, the Pennsylvania Human Relations Act also provides state remedies which parallel the federal remedies. Whereas pain and suffering and certain other damages for Title VII, the ADEA, and the ADA are capped at $300,000.00 there is no cap on damages under the Pennsylvania Human Relations Act and it is important for an employee to file a complaint with the Pennsylvania Human Relations Commission and with the Equal Employment Opportunity Commission to preserve rights under state and federal law.

Filing an Administrative Complaint

It is absolutely essential prior to any action in court under Title VII, the ADEA and the ADA to file an administrative complaint with the appropriate administrative agency. For a federal complaint involving Pennsylvania employment, a complaint must be filed with the Equal Employment Opportunity Commission within 300 days of the adverse employment decision. An adverse employment decision involves a firing, a reduction in responsibilities, discipline, or anything else that tangibly affects employment. There is a much shorter time for filing a complaint under the Pennsylvania Human Relations Act. This period of time is 180 days.

Therefore, to be safe, the employee should file with the Pennsylvania Human Relations Commission and with the EEOC within 180 days of the adverse employment decision. Only in that way can the employee properly preserve his or her rights. Sometimes the employee will have to wait weeks before getting an appointment with the EEOC, simply because they are so busy. Under these circumstances, and generally, we will file the EEOC complaint on behalf of the employee. We are better able to take the necessary time to ensure that all aspects of the complaint are filed. We do a far more detailed job than the EEOC and we are quicker, faster and more thorough. When time is short, or when the issues are significant, it is far better to have a lawyer draft the EEOC complaint and send a copy directly to the employer. The reason for quick action is that as soon as the employer gets notice of the complaint (even a verbal complaint), he or she cannot retaliate against the employee. Retaliation should result in another EEOC/PHRC complaint being filed. The employee should file additional complaints if necessary to stop the retaliation.

Any complaint with the EEOC should be cross-filed with the Pennsylvania Human Relations Commission.

Even If You Are Not Discriminated Against

Even if you are not discriminated against - you may still have a case. If you have been terminated because you served in the armed forces, because you filed for workers' compensation, or because you were on jury duty, or because you refused to participate in a crime, you may well have a case against your employer under state or federal law.

New Federal Whistleblower Protections for Employees

After the Enron and Worldcom debacles, the federal government extended additional protections to employees who complain about illegal behavior by their employers. Most recently, the Sarbanes-Oxley Act (SOX) gives enhanced protections for employees who report corporate fraud and adds penalties for retaliation taken against whistle blowers who complain about, or provide truthful information to a supervisor or law enforcement officer regarding the possible commission of activities that violate federal laws against fraud.

Although there are many federal and state laws protecting employees from retaliation by employers for disclosing illegal activities to government regulators or to law enforcement, Sarbanes-Oxley is unique in that it imposes civil liability for any negative employment action taken against the employee for reporting activities the employee believes to be illegal - even if the report is only to a supervisor. SOX provides protection for employees of publicly traded companies who provide information or otherwise assist in an investigation regarding any conduct the employee reasonably believes to constitute a violation of various federal laws. Complaints under SOX must be filed with the Secretary of Labor, who (through the Occupational Safety and Health Administration) investigates and adjudicates the matter. If the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that the delay is due to the bad faith of the claimant, the claimant may initiate an action for de novo review in any United States district court. Where the Secretary does issue a decision within 180 days, the matter may be reviewed de novo before an Administrative Law Judge (ALJ) of the Department of Labor. The remedies available under Sarbanes-Oxley are the same regardless of whether an appeal is taken before a federal district court or an ALJ, and the ALJ discovery procedures closely follow the Federal Rules of Civil Procedure.

SOX is extremely broad in that it protects employees who complain to any person with supervisory authority over the employee.

An employee alleging retaliation under SOX needs to file a complaint with the United States Department of Labor within ninety days of the alleged retaliation. This is a very short time period, and it means that any employee who believes they may have a SOX case must talk to a lawyer at once.

In order to prevail under SOX, the complainant only needs to show that the protected activity was a contributing factor in whatever negative employment action was taken. The employer, for its part, then needs to show by clear and convincing evidence that the employee's report had no effect on the personnel action taken.

An employee prevailing in a civil whistleblower action under Sarbanes-Oxley is entitled to "all relief necessary to make the employee whole." This includes reinstatement with the same seniority status, back pay with interest and compensation for any special damages including litigation costs, expert witness fees and reasonable attorneys' fees. An employee bringing an action under SOX can also bring actions under any other areas of state law.

There are numerous other laws protecting your rights as an employee. This section discusses a few of the more common provisions protecting employees. Call Us With Questions

We hope that you have found these categories useful in determining if you have a case for harassment or discrimination. Please be advised that the foregoing is only a guide and there are as many different kinds of discrimination as there are people and companies. You should call us if you believe you are a victim of any kind of discrimination. We will be able to tell you immediately if the kind of discrimination you are suffering is illegal under the law. There will be no cost to you for talking to us.

Bear in mind that not all harassment is illegal. There are plenty of companies and work situations that are abusive and harassing but, because the harassment is not on basis of sex, race, gender, ethnic origin, religion or age, it can continue without the employee having any remedy.

Again, please do not hesitate to call us should you feel that you have a problem. We are available and privileged to serve you.