The Pundzak Law Office has helped numerous employees recover from unlawful workplace discrimination. Lynn Pundzak also has provided advice to employers contemplating adverse employment actions and has defended many employers unjustly accused of discrimination.
Ohio law and federal law prohibit employment discrimination based on age (40 and over), disability, gender, genetic information, pregnancy, citizenship status, national origin, race/color, religion and veteran status. These laws do not protect an employee in one of these protected classes from suffering an adverse employment action. Rather, the laws simply make it illegal for employers to base their employment decisions on these characteristics. In other words, employers may fire (or otherwise take adverse action against) a pregnant employee, a disabled employee, an older employee, etc. However, an employer may not take that adverse action because of that protected characteristic.
Obviously, few supervisors tell employees that they are being disciplined or fired because of they belong to one of these protected groups. Discrimination is often subtle, and claims usually are proven by circumstantial evidence. Experienced counsel can help determine if discrimination can be proven.
What is adverse employment action?
This is decided on a case by case basis. The action must be (i) materially adverse (ii) to a reasonable employee or applicant. The Supreme Court of the United States has explained that “materially adverse” means that the harm must be significant. It also explained that the determination must be made objectively, and thus must be measured against how a “reasonable person” would feel or act.
Examples of adverse actions include:
- employment actions such as termination, refusal to hire, and denial of promotion;
- other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance; and
- any other action such as an assault or an unfounded civil or criminal charge that is likely to deter reasonable people from pursuing their rights.
Adverse actions do not include petty slights and annoyances, such as stray negative remarks in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history.
In the case of religious discrimination and disability discrimination, it may also be illegal for an employer to deny reasonable accommodations to an employee.
In July 2015 the Equal Employment Opportunity Commission (EEOC) addressed the question of whether discrimination against LGBT individuals is covered by the ban on sex discrimination in Title VII of the Civil Rights Act of 1964. In a 3-2 vote by the five person independent commission, the EEOC ruled that existing civil rights laws do bar sexual orientation-based employment discrimination. The ruling will apply to federal employees’ claims as well as any private employee who files a claim with EEOC offices nationwide. The decision states that sexual orientation is inherently a sex-based consideration and the agency will look to whether the employer relied on any sex-based considerations or took gender into account when taking the alleged employment action.
On April 4, 2017, a federal appeals court held for the first time that federal discrimination laws protect persons from discrimination based on sexual orientation. The Seventh Circuit Court of Appeals, which encompasses Illinois, Indiana and Wisconsin, ruled that sexual orientation is covered by Title VII of the Civil Rights Act of 1964. The landmark decision created a circuit split between the Seventh Circuit and every other court of appeal to have addressed the issue. Such a split may prompt the Supreme Court to eventually determine the scope of Title VII’s coverage.
Lynn Pundzak has the experience and knowledge to help both employees and employers deal with these complex legal issues. Call her at 513-564-9999 for help with your unique situation.