Is this retaliation or discrimination?
I was recently "Laid-Off" and the company I work for said it was due to lack of work (Construction CO). I found out through co-workers that the same day they laid me off they hired a male employee at a higher pay rate. I am female, and I made several complaints to my supervisor about another employee, then I was let go. Do I have a lawsuit?
1 answer | asked Oct 10, 2005 7:54 PM [EST] | applies to Ohio
Answers (1)
This looks like discrimination, but retaliation tu
Retaliation and discrimination are two separate claims. If the company laid you off in order to hire a male, then you would have a claim for discrimination. Factors that matter for the success of that claim include whether the male filled the position vacated by your termination and whether factors other than sex could explain the employer's actions.
In order to have a retaliation claim, however, the complaints that you made about a co-worker had to involve so-called "protected conduct." If you complained about a co-worker's sexually harassing behavior, for example, your conduct (the complaint) is protected. If you complained about the way the co-worker did his job, however, the complaint is not protected.
Assuming that your complaint amounted to protected conduct, then the question is whether your termination was caused by the complaint. Factors considered by courts in deciding that question include direct evidence of retaliation, such as a statement by your boss that "complainers are not tolerated", as well as circumstantial evidence, such as timing. If you were fired within days of the complaint, for instance, the timing would point to retaliation.
Another issue here is whether the stated reason for your termination, lack of work, is a "pretext," meaning that it is not true but was stated to cover up the real reason. If you can prove that the company did not lack work, as would be the case if it hired a male to do the work, then a jury can infer unlawful discriminatory or retaliatory motive from the employer's effort to cover it up with a false reason.
If you would like to explore the viability of your claims, as well as the options, costs and benefits of pursuing them, call for a consultation at 330.665.5445, ext. 0, which will connect you with our Office Manager.
Best,
Neil Klingshirn
posted by Neil Klingshirn | Oct 11, 2005 08:40 AM [EST]
Retaliation and discrimination are two separate claims. If the company laid you off in order to hire a male, then you would have a claim for discrimination. Factors that matter for the success of that claim include whether the male filled the position vacated by your termination and whether factors other than sex could explain the employer's actions.
In order to have a retaliation claim, however, the complaints that you made about a co-worker had to involve so-called "protected conduct." If you complained about a co-worker's sexually harassing behavior, for example, your conduct (the complaint) is protected. If you complained about the way the co-worker did his job, however, the complaint is not protected.
Assuming that your complaint amounted to protected conduct, then the question is whether your termination was caused by the complaint. Factors considered by courts in deciding that question include direct evidence of retaliation, such as a statement by your boss that "complainers are not tolerated", as well as circumstantial evidence, such as timing. If you were fired within days of the complaint, for instance, the timing would point to retaliation.
Another issue here is whether the stated reason for your termination, lack of work, is a "pretext," meaning that it is not true but was stated to cover up the real reason. If you can prove that the company did not lack work, as would be the case if it hired a male to do the work, then a jury can infer unlawful discriminatory or retaliatory motive from the employer's effort to cover it up with a false reason.
If you would like to explore the viability of your claims, as well as the options, costs and benefits of pursuing them, call for a consultation at 330.665.5445, ext. 0, which will connect you with our Office Manager.
Best,
Neil Klingshirn
posted by Neil Klingshirn | Oct 11, 2005 08:40 AM [EST]
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