A Successful Case

To better understand your rights, consider the typical layoff-discrimination case of McCabe v. Champion International Corp. Fred McCabe was a senior systems analyst at Champion's facility in Hamilton, Ohio. At the time of his termination, he was 49 and had an excellent work record during 15 years of service.

Prior to Champion's restructuring, only one-third of its work force was over age 40. Yet 60% of those laid off were age 40 or older. Evidence of age bias abounded. Mr. McCabe's boss said he would prefer to "have junior people." Another spoke glowingly of the college recruits that Champion hired during the layoffs.

Mr. McCabe was able to show that the company's methods for selecting who would be laid off were subjective, flawed and violated its own policies. In addition, top management paid no attention to a warning of possible age bias issued by the company's EEO office. Finally, Mr. McCabe was able to show that the company's stated reason for selecting him to be laid off--his alleged lack of design skills--simply wasn't correct. A jury found age discrimination and awarded him $110,000, which included back pay, front pay and liquidated damages. In addition, Mr. McCabe was awarded attorney fees.

Testing Your Evidence: Direct and Circumstantial

If you decide to sue for discrimination, having direct evidence will ease your burden of proof. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the action against you to your protected class status.

For example, if your employer tells you that you're being let go because you're near retirement age and the company wants a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos or notes.

Unfortunately, the likelihood of obtaining direct evidence is extremely slim. Supervisors often are too sophisticated and well-trained by their attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence.

According to the McDonnell-Douglas Test, named for a famous Supreme Court decision, a positive response to the following four questions raises a presumption of discrimination, also called a "prima facie" case:

1. Are you a member of a protected class? For example, if you're claiming age discrimination, are you over age 70? If you're claiming disability discrimination, are you disabled?

2. Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?

3. Did your employer take adverse action against you? For instance, were you demoted or fired?

4. Were you replaced by a person who isn't in your protected class (or in the case of age discrimination, someone substantially younger than you)?

The law will presume, since you were qualified for your job and discharged in favor of someone not in your protected class, that your protected-class status was the reason for the adverse action. Yet, the circumstantial-evidence test is flexible.

The law recognizes that employees can be discriminated against even if they weren't replaced by someone outside their protected class. The following questions will help you determine if you have sufficient circumstantial evidence to raise a presumption of discrimination:

Answering Yes to these first three questions may be used to establish a presumption that your protected-class status caused the adverse employment action. No single piece of circumstantial evidence is sufficient. There's no "magic" amount or type of evidence you must have to prove discrimination. Here are several more McDonnell-Douglas Test questions.

Countering Employer Denials

Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you. In court, an employer has the opportunity to offer a legitimate, non-discriminatory explanation for its conduct. This isn't difficult for a company to do. All the law requires is that the employer "articulate," or state, a reason. The employer doesn't have to prove that the reason is true. A company can almost always come up with some rationale for a termination. Once the employer articulates this reason, your presumption of discrimination is gone. You'll then have to offer additional evidence showing that the stated reason is just a cover-up for discrimination.

To do this, you must show that the stated reason is

You also want to show that your protected status is more likely to have motivated your employer than the stated reason. If you demonstrate any of these, you may be able to prove that the employer's stated reason is a pretext for discrimination.

The law requires you to show not only that company's stated reason is false, but that the unlawful factor was the real reason, or that the employer's stated reason and your protected status both played a role in your termination.

Discrimination also can occur when your company makes an employment decision that seems to be free from discrimination and based on neutral factors, but has an effect that adversely impacts a protected group more severely that a non-protected group. For example, your employer may adopt a policy during a layoff to terminate all employees without a four-year college degree, which causes a disproportionately large percentage of blacks to be laid off. Unless the employer can show a legitimate business necessity for the policy, it's unlawful because of its "disparate impact" on blacks, a class of employees protected from discrimination.

Injustice Happens

Unfortunately, there are many claims of stark injustice that the courts refuse to recognize. An example was Simpkins v. Specialty Envelope, in which plaintiff Carol Simpkins alleged disability discrimination and defamation. She had worked for a Cincinnati company for 23 years and had never been disciplined, although she had previously suffered from clinical depression. On Friday, Oct. 9, 1992, she had a nervous breakdown at work. She ran into the bathroom, where she began hysterically beating on the walls. The production manager told her "the best thing for her would be to leave the building" and go home, accompanied by the traffic manager, which she did. Her immediate supervisors and the general manager were then advised of her departure.

Over the weekend, Ms. Simpkins' husband took her to a doctor, and she was admitted to a psychiatric hospital. On Monday, her husband advised the company of her hospitalization. The general manager told Mr. Simpkins that she was terminated because she "left the company premises without notification to or compliance with supervision" and she was considered to have "quit and walked off the job."

The U.S. District Court held she wasn't a disabled employee and, in any event, she hadn't notified the company of her mental disability. The Sixth Circuit Court of Appeals agreed, ruling she never specifically requested an accommodation and that her disability was only a temporary, non-chronic impairment. The Court noted she was "treated unfairly," but that there was no falsehood or malice and, therefore, no defamation.

The Simpkins case is an example of the new trend of conservative judicial activism where judges decide the facts for themselves, rather than leave disputed issues for a jury to decide.

The EEOC

Federal and state governments have established administrative agencies that can investigate most claims of discrimination or wrongdoing by employers. If you don't have (or for whatever reason, don't want) an attorney to represent you, you can use these administrative channels to challenge a wrongful termination.

If you've been employed by a company with 15 or more employees or by a state government and believe that you've been discriminated against based on

The EEOC, headquartered in Washington, D.C., is a federal agency charged with the responsibility of investigating claims of discrimination under Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act. EEOC district and area offices are located throughout the country (see your local telephone directory).

The length and thoroughness of an EEOC investigation will vary. some last many months or even years. Eventually, the EEOC will isue a determination. In 90% of the cases, the EEOC declares there's no probable cause or showing of discrimination. On rare occasions, the EEOC will find probable cause and threaten to file a lawsuit.

Because of its huge backlog and lack of resources, the EEOC often is unable to provide adequate assistance. Occasionally, it will file a lawsuit on your behalf, particularly if you're part of a large class or group of employees, or if there's an important legal issue at stake.

After the EEOC has closed its file, it will issue its 90-day "right to sue" notice. After that, you have the right to inspect your file by filing a request with the EEOC under the Freedom of Information Act. The file often contains important information and documents supplied by your former employer that will be valuable if you intend to move ahead with a suit. If you don't file suit within 90 days, you'll have forever lost the right to contest discrimination in federal court.

Seeking Resolution

Proving discrimination is difficult. Lawyers are often unwilling to take cases unless there's a clear probability of success. Litigation is expensive, aggravating, time consuming and stressful. The best course often is to settle discrimination claims through negotiation or mediation. Frequently, the victim will have to accept a modest amount in exchange for a release of rights.

However, in egregious cases, there are legal remedies that provide a good opportunity for vindication and adequate compensation.

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