An Experienced
Employment Lawyer

I have focused my practice on Alabama
employment law for more than 25 years.


NOTICE: The following is for general information only. Laws and court rulings are subject to change, so you should consult with a lawyer about your case.

Q: What types of discrimination are illegal?

A: It is illegal to discriminate against an employee or applicant because he/she belongs to any of the following “protected classes:” race (including Caucasian), ethnicity, gender, age (40 and over), religion, and disability. Except for race and ethnicity discrimination, the federal employment discrimination laws apply only to employers who have 15 or more employees, and 20 or more for age discrimination. There is no minimum number of employees for claims of race or ethnicity discrimination.

Q: What actions by employers are covered by the discrimination laws?

A: Discrimination laws do not apply to every act that is taken against an employee, even if it is discriminatory. The laws only apply to adverse actions that affect a tangible aspect of the employee’s job. For example, a bad evaluation or disciplinary action is not illegal unless accompanied by some adverse effect on the job, such as loss of a raise or significant job duties. Adverse discriminatory job actions that are covered include failure to hire, denial of promotion, demotion, unequal pay, consistent unfavorable job assignments, failure to accommodate a disability, significant loss of job duties, harassment, and termination.

Q: What do I do if I feel I have been discriminated against?

A: Most discrimination claims begin with the filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC is a federal agency that investigates job discrimination, and for many types of discrimination claims a person MUST file a charge of discrimination with the EEOC and go through its process before filing a lawsuit under discrimination laws in court. Most lawyers will draft EEOC charges for their clients and file them, so finding a lawyer is the best first step. However, you do not have to have a lawyer to file a charge with the EEOC, or even to file a lawsuit. The EEOC will investigate the charge and issue a determination as to whether there is cause to believe that a violation of the law has occurred. The EEOC may rule that it does not find such cause, but this has no effect on your right to file a lawsuit. The EEOC may also offer to mediate the charge. Mediation is a voluntary settlement process where an EEOC mediator brings you and the employer together to try to work out a mutually agreeable resolution. If the charge is not resolved, the EEOC will issue a right to sue letter when it concludes its investigation. You then have the right to file a lawsuit in court.

Q: What can I recover in a discrimination lawsuit?

A: That depends on the law that applies. In cases under the age discrimination laws, the monetary relief is tied to lost wages. If it is proven that the employer was aware of the illegality of age discrimination, lost back wages can be doubled. The same is true for the Family and Medical Leave Act (FMLA). For other types of discrimination, you can recover compensatory damages for emotional, psychological, and physical injuries. You may also be able to recover punitive damages, but these are more difficult to recover and are not generally available against governmental employers. The amount of available compensatory and punitive damages depends on the size of the employer in cases other than race discrimination and range from $50,000 to $300,000. These amounts do not include lost back wages, which are also recoverable.

Q: What are the time limitations to pursue a claim?

A: In cases other than race, ethnicity, or age discrimination, in Alabama you MUST file a charge of discrimination with the EEOC within 180 days of the discriminatory act or you lose your right to bring a lawsuit under the federal laws against non-governmental employers. In harassment cases, the time period generally begins to run when the harassment ends. However, failing to file a charge for a significant period of time after the harassment begins will run the risk of having some or all of the harassment considered untimely. So, do not delay in filing a charge. Once the EEOC issues you a right to sue letter, you have 90 days to file a lawsuit from the date you receive the letter.

There is a law against discrimination based on race and ethnicity that the EEOC does not deal with. Under this law (Section 1981 to Title 42 of the United States Code), you have two years to bring a lawsuit in court if your claim involves the creation of a new employment status, such as a failure to hire or promote you. If your claim involves something other than this (e.g., hostile work environment or termination), you have four years to bring a lawsuit. Be advised: The U.S. Supreme Court only recently issued an opinion holding that employees have as long as four years to bring a lawsuit under section 1981 for claims other than a failure to hire or promote. Lower courts have not yet had time to interpret this opinion, so you should not wait more than two years to file suit for such claims under this law if possible.

The EEOC also does not handle claims under the FMLA. You have 2 years to bring an FMLA lawsuit and 3 years if the violation is willful.

Alabama has a state law against age discrimination. It mirrors the federal age discrimination law but does not require filing of an EEOC charge. To pursue a claim under Alabama’s age discrimination law, you can do either of the following: (1) file a lawsuit in state court within 180 days from the date of the act you are complaining about, or (2) go through the EEOC process as described above, and then file a lawsuit within 90 days from the date the notice of dismissal of the charge is sent by the EEOC.

Q: How do you prove a discrimination case?

A: That depends on the type of claim. Most claims involve proving discriminatory intent. That is, you are saying that the employer took some adverse job action- such as firing you or not hiring you- because of intentional discrimination. The following does not apply to harassment cases, which are analyzed differently because they do not usually revolve around the proof of intentional discrimination.

Generally, there are three ways to prove intentional discrimination. The first way is through direct evidence. Direct evidence is that evidence which, by itself, suggests discrimination. For example, if the supervisor tells a female employee, “We’re not going to give you that promotion because we need a man for that job,” or he tells an older employee, “We’re letting you go because you’re getting too old for this job,” this is likely direct evidence. Direct evidence cases are rare, as most people today know better than to voice such opinions.

The second way of proving discrimination is through statistical evidence. For example, if an employer is located in an area where the available pool of qualified applicants is thirty percent African-American but the employer’s workforce is only three percent African-American, this can suggest that the employer discriminates against African-Americans.

However, the vast majority of intentional discrimination cases is proved through the third method: circumstantial evidence. That is, you are proving your case through the circumstances surrounding the adverse job action. Courts have fashioned different tests for proving circumstantial evidence cases based on the nature of the act. These tests are the same in that they involve three steps. The first step involves proving favorable treatment to a person outside your protected class. For example, if an African-American person unsuccessfully applies for a job he is qualified for but the employer hires a Caucasian person for the same job the next day, the first step is likely established. Or, if a disabled employee is terminated for missing a deadline but a non-disabled person who also missed the deadline is not terminated, the first step is likely met.

The second step is for the employer to provide a legitimate, non-discriminatory reason for its action. The employer in the first scenario might claim that the African-American applicant was not hired because he did not have a college degree. The employer in the second scenario might claim that the non-disabled employee had a legitimate reason for missing the deadline but the disabled employee did not.

The third step is for the employee to prove that the reason given by the employer is a “pretext” or cover-up for discrimination. Proving pretext is usually the biggest hurdle for an employee to overcome and the most contested issue in intentional discrimination lawsuits. Generally, proving pretext requires that the employee either demonstrate that the reason given by the employer is false or otherwise show that it is a cover-up for discrimination. For example, in the scenario with the African-American applicant who was not hired, he could show that he does have a college degree, that the Caucasian person who was hired did not have a college degree, or that the employer has hired people into the position in the past who did not have a college degree. In the scenario with the disabled employee who was terminated, she could show that the employer fabricated the non-disabled employee’s excuse or that the employer knew that she also had the same excuse. Proving that the reason given by the employer is false should suffice to establish pretext, unless the evidence used to prove the falsity of the reason is particularly weak or there is other evidence from the employer not contested by the employee that clearly shows that discrimination was not involved in the decision.

There are two important points to remember in proving pretext. First, where an employer gives more than one reason for the employment action, the employee must prove that each one is false. If an employer gives a multitude of reasons and the employee proves that all but one or two are clearly false, pretext may be found, but that is questionable. The second point is that courts focus not on the actual truth of the reason given by the employer but on the reasonableness of the employer’s belief that it is true. For example, assume a restaurant cook tells the manager that the sixty year old cashier took money from the register, and the manager fires the cashier for this reason and replaces her with someone much younger. Further assume that the cook fabricated the story and lied to the manager about it. Without some other independent evidence of discrimination, the manager’s decision will likely hold up in court unless the cashier can prove that the manager could not have reasonably believed the cook’s lie.

Q: What is the process of an employment discrimination case?

A: After the EEOC finishes its investigation and issues a right to sue letter, a lawsuit is filed. Employment discrimination claims brought under federal laws are usually filed in federal court, but they can be brought in state court. After the suit is filed, there is a period called discovery. This is the investigation phase. Lawyers for both sides request documents and submit written questions to the other side, take statements from witnesses, subpoena documents from non-parties, and take depositions. Depositions are where the lawyers question witnesses under oath with a court reporter taking the testimony down. If it is your case, you have the right to be at all depositions and should be there if you can. Discovery periods generally run from six to eight months, but may be longer or shorter.

After the discovery period ends, lawyers for employers most always file a request with the court for what is called summary judgment. This is where the employer is asking the court to throw the case out without a trial. Grounds may be technical, such as that the suit was filed too late or that the employer does not have enough employees to be subject to the discrimination law, but usually the grounds are that the employee does not have enough evidence to prove discrimination. There has not been a lawyer for employers born yet who did not think he could win summary judgment in every case, so if you file a discrimination lawsuit and do not settle it, you will most likely have to go through summary judgment.

Getting past summary judgment can be difficult in discrimination cases because there are many defenses to employers and proving someone’s intent to discriminate is often hard. The court will view the evidence in the favor of the employee because it is trying to determine whether a jury could find discrimination if it believed everything the employee offered. So, if the employer says that the employee was terminated because he cussed the supervisor out, and the employee denies this, the court will accept the employee’s version at summary judgment unless there is some reason indicating that the employee’s version is clearly unbelievable. If summary judgment is denied or not pursued, the case will bet set for a trial.

Q: Are there any risks in pursuing an employment discrimination claim?

A: There are monetary risks in pursuing a lawsuit. If you sue your employer and lose, the court will likely require you to reimburse the employer for the costs it incurs in defending the suit. Costs would include things like copying, subpoenas, and the costs of depositions. The amount would of course vary, but it can be thousands of dollars. Also, if you lose and the court finds that your case was frivolous (meaning that it had very little substance), the court can also order you to pay the employer back for the attorneys’ fees that it pays in defending the case. This is not common, but it does happen and can be a great deal of money. It is important to know that, once you sue your employer and the employer files in court an answer to your complaint, if you later change your mind and decide to dismiss the case, the court can require you to reimburse the employer for its costs and perhaps even its attorneys’ fees if the employer doesn’t agree for the suit to be dismissed without such reimbursement. So, before you decide to sue your employer, make sure you have a strong case and are willing to go the distance.

Q: What are my rights regarding workplace harassment?

A: The federal employment discrimination laws cover only harassment that is related to those classes protected by the laws: gender, race, ethnicity, etc. So, general harassment that is not based on one of these protected classes is not covered by the employment discrimination laws. The most common form of harassment that is covered by discrimination laws is sexual harassment, but the following applies to harassment based on the other protected classes. In order for harassment to fall under the federal law, it must be sufficiently severe or pervasive. This means that there must be at least a few fairly severe incidents or numerous incidents that, by themselves, are not severe. For example, a few instances of physical groping would probably suffice on the one hand, and sexual remarks made on a regular basis for weeks or more should suffice.

It is important to note that the harassment must be discriminatory in nature. For example, if a supervisor puts his arm around female employees, but he also does this in the same manner to male employees, this is probably not sexual harassment because women are not treated differently than men. Also, sexual harassment is not limited to conduct that is sexual. It also includes chauvinism. So, if a supervisor frequently makes derogatory remarks about women as a gender, this can be sexual harassment.

Q: What do I do if I have been subjected to sexual harassment?

A: Report it to your employer. Generally, if an employer has a policy against harassment and a procedure for reporting it that is published to the employee, the employer will not be responsible for sexual harassment unless and until the employee reports it. If you feel you are being subjected to unlawful harassment, look in your company handbook or the break room bulletin board for a notice procedure. If you do not see one, ask a supervisor or someone in human resources for how to report it. If all else fails, report it to your supervisor or, if he/she is the problem, their supervisor. Also, report the harassment in writing, keep a copy, and make a written note of when and to whom you report the harassment.

There are types of unlawful harassment for which the employer will be responsible without a report being made. These include the situation where your job is brought into the harassment. For example, if a supervisor requires you to go out on a date (or more) to get a promotion or keep your job, this is a type of harassment for which the employer will be responsible for regardless of notice. However, in most every case, it is still a good idea to report the harassment to your employer to give it the chance to fix the problem.

Q: I feel I was terminated from my job because of discrimination. However, if I put down on an application with another employer that I was terminated, I won’t get hired. What do I do?

A: This is one of the biggest problems for people with employment discrimination claims who have lost jobs. If you put down that you were terminated (even though you feel you were discriminated against), this could prevent you from being hired by another employer. It is a tricky situation, and one which really has no easy answer. However, you must remember that, if you plan to pursue a discrimination claim against your former employer, you are leaving a paper trail that their lawyer will most likely follow. She will subpoena every application you fill out or claim for unemployment compensation you file in hopes that you have stated something false or inconsistent with your employment discrimination claim. Consequently, you CANNOT state on an application that you quit or were laid off; this is the sort of thing lawyers for employers salivate over. A possible way of handling this is to list the reason given to you. For example, if you were told you were terminated for excess absences (but you think that was a cover for discrimination), you can state “I was told I was terminated because of excess absences, but I dispute that.” Or, you can state that you will discuss the reason in an interview.

Q: If I think I have a discrimination claim, is there anything I should do to preserve it?

A: Yes. First, take some time and write down all the events that are important to your claim as thoroughly as you can. Memories fade, so it is important to do this. Try to determine when these events occurred as best you can.

Also, if your claim involves the loss of a job, you have an obligation to reduce your lost wages. So, you must make a reasonable effort to find a comparable job. People who have lost a job (through termination or not being hired) should keep a record of all efforts to find another job, even if it is just a phone call. If you wait until unemployment runs out to look for a job, you may run the risk of losing your right to lost wages.

Q: I am in bankruptcy and want to pursue an employment discrimination claim. Does that make any difference?

A: Definitely, especially if the discrimination happened before you file bankruptcy. A discrimination claim, like any legal claim, is an asset of the bankruptcy estate. If you do not list the discrimination claim in your bankruptcy, you may lose your right to monetary and other remedies for which you would otherwise be eligible, or you may lose your right to pursue the discrimination case completely. So, tell your bankruptcy lawyer about your discrimination claim. Before your bankruptcy lawyer assigns an estimated value to the claim in the bankruptcy court, it is a good idea to have him/her consult with your employment discrimination lawyer so that you don’t place a value on the claim in bankruptcy that is drastically lower than what you’re seeking. It can be hard to explain why you think your claim is worth $100,000 when your bankruptcy lawyer assigned a value to it of $5,000.

Q: I think I was terminated because of my disability and am thinking about filing for Social Security Disability. Will this have an effect on my employment discrimination claim?

A: It certainly can. If you claim to the Social Security Administration that you are completely disabled and cannot work in any job, even with an accommodation, then you may lose your right to pursue a disability discrimination claim. The Americans with Disabilities Act only protects disabled persons who are otherwise qualified for their jobs.

Adam M. Porter

Adam M. Porter