Discrimination in the Workplace
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Both federal and state law prohibit discrimination in the workplace based on certain characteristics known as "protected classes." If you belong to one or more of these classes, you can still be terminated or disciplined for a legitimate reason. But if you are facing termination or discipline, you may want to consider whether you are being singled out for different treatment because of who you are.
Simply being treated differently is not by itself unlawful discrimination. For example, an employer may favor members of his own family, or people with similar political views. The important question is whether the different treatment is because you are in one or more protected classes. Below is some basic information about employment discrimination in Massachusetts. You can also read about some examples of employment discrimination cases we have resolved, and answers to frequently asked questions about employment discrimination. |
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What is a Protected Class Under Discrimination Laws
Both Federal and Massachusetts law protect against discrimination in the workplace based on certain characteristics. These include race, color, religion, national origin, sex, age (over 40), pregnancy, disability, and perceived disability.
In addition to these federally protected classes, Massachusetts employment law prohibits discriminating on the basis of:
Discrimination based on race. This most commonly involves actions by a white supervisor or manager against an african american or latino employee. It could also apply to any other set of people from different races. Strictly speaking, a white employee could claim racial discrimination based on actions of a supervisor of a different race, though this is rare.
National origin discrimination. This covers discrimination based on your country of origin. It sometimes overlaps with race, but reaches more broadly. It could cover discrimination between two people who are the same race but from very different countries and cultures. This theory could also combine with racial discrimination. An example would be bias against a latino immigrant both because he is latino and because he is an immigrant.
Age discrimination in employment. Only older workers are protected by this law. "Older" means over 40 years old. The most common age discrimination claims we see involve employees in their 50's or 60's. It is often harder to prove age discrimination the closer you are to 40 because so many people in the workforce today are 40 or older.
Disability discrimination. The Americans with Disabilities Act as well as Massachusetts law prohibit discrimination based on disability. Whether you have a disability discrimination claim depends in part on whether you could do your job with reasonable accommodations for your disability. These laws also protect against discrimination based on perceived disability. This means you might have a claim if you have a condition that is not actually disabling, but your employer believes you are disabled and takes action against you for that reason.
Sex discrimination. Sex discrimination covers both discrimination and harassment claims, where harassment is sexual in nature. Discrimination can include negative employment actions or unequal access to promotions or opportunities. It can also include unequal pay for comparable work, which is also covered by the equal pay acts.
Sexual harassment includes overt unwanted sexual attention. It also covers pervasive sexual behavior or commentary that creates a hostile work environment. Read more about your right to be free from sexual harassment and what counts as sexual harassment.
Sexual orientation and gender identity. LGBTQ employees are not protected under federal law. In Massachusetts these are protected classes. If you believe you have been singled out based on your LGBTQ status, you may be able to prove discrimination.
In addition to these federally protected classes, Massachusetts employment law prohibits discriminating on the basis of:
- Gender Identity
- Sexual Orientation
- Genetic Information
- Ancestry
Discrimination based on race. This most commonly involves actions by a white supervisor or manager against an african american or latino employee. It could also apply to any other set of people from different races. Strictly speaking, a white employee could claim racial discrimination based on actions of a supervisor of a different race, though this is rare.
National origin discrimination. This covers discrimination based on your country of origin. It sometimes overlaps with race, but reaches more broadly. It could cover discrimination between two people who are the same race but from very different countries and cultures. This theory could also combine with racial discrimination. An example would be bias against a latino immigrant both because he is latino and because he is an immigrant.
Age discrimination in employment. Only older workers are protected by this law. "Older" means over 40 years old. The most common age discrimination claims we see involve employees in their 50's or 60's. It is often harder to prove age discrimination the closer you are to 40 because so many people in the workforce today are 40 or older.
Disability discrimination. The Americans with Disabilities Act as well as Massachusetts law prohibit discrimination based on disability. Whether you have a disability discrimination claim depends in part on whether you could do your job with reasonable accommodations for your disability. These laws also protect against discrimination based on perceived disability. This means you might have a claim if you have a condition that is not actually disabling, but your employer believes you are disabled and takes action against you for that reason.
Sex discrimination. Sex discrimination covers both discrimination and harassment claims, where harassment is sexual in nature. Discrimination can include negative employment actions or unequal access to promotions or opportunities. It can also include unequal pay for comparable work, which is also covered by the equal pay acts.
Sexual harassment includes overt unwanted sexual attention. It also covers pervasive sexual behavior or commentary that creates a hostile work environment. Read more about your right to be free from sexual harassment and what counts as sexual harassment.
Sexual orientation and gender identity. LGBTQ employees are not protected under federal law. In Massachusetts these are protected classes. If you believe you have been singled out based on your LGBTQ status, you may be able to prove discrimination.
Termination of an Employee in a Protected Class
A "legitimate" reason does not necessarily mean a fair or correct reason. It means a reason that is not based on discrimination. Often the reason cited is poor performance or conflicts in the workplace. It is much easier for an employer to demonstrate this kind of legitimate reason if there is a history of performance evaluations or warnings in the employee file.
The employer may claim another reason that you think is unreasonable but may not be discrimination. For example, they may have decided wrongly that you broke a rule. Even if they are wrong, the reason could be legitimate. A personality conflict with a supervisory can be a legitimate reason as long as the basis of the conflict is not your protected status.
The employer may claim another reason that you think is unreasonable but may not be discrimination. For example, they may have decided wrongly that you broke a rule. Even if they are wrong, the reason could be legitimate. A personality conflict with a supervisory can be a legitimate reason as long as the basis of the conflict is not your protected status.
Discrimination in the Workplace: What You Can Do About It
For most employees, you can either bring an internal complaint to human resources or file a claim with the Equal Employment Opportunity Commission (EEOC) or the Massachusetts Commission Against Discrimination (MCAD). The law requires you to start in one of these two agencies. You can eventually remove your claim and bring a lawsuit in state or federal court.
If you bring an internal complaint first, your employer is not allowed to take action against you because you filed a complaint. You are protected from retaliation as long as you raised the complaint based on a good faith belief that you were subject to discrimination or harassment.
If you work for an agency of the federal government, you have to follow slightly different rules. There should be an Equal Employment Office in your agency. Federal employees have to first try to resolve their complaint with this office. You will eventually have the opportunity to file in court if the issue is not resolved or if too much time goes by without agency action. Read more about proving an employment discrimination claim and bringing a discrimination or harassment claim.
If you bring an internal complaint first, your employer is not allowed to take action against you because you filed a complaint. You are protected from retaliation as long as you raised the complaint based on a good faith belief that you were subject to discrimination or harassment.
If you work for an agency of the federal government, you have to follow slightly different rules. There should be an Equal Employment Office in your agency. Federal employees have to first try to resolve their complaint with this office. You will eventually have the opportunity to file in court if the issue is not resolved or if too much time goes by without agency action. Read more about proving an employment discrimination claim and bringing a discrimination or harassment claim.
When Can You Bring a Discrimination Complaint?
Usually these claims are brought after someone is fired from a job. But there are times when you might consider a claim even without being terminated. If you are being subjected to sexual harassment, you have a right to seek relief even if your job is not in peril.
There are other actions short of termination that could trigger a right to sue. If you are demoted or have your pay cut, for example. A transfer to a less desirable position or location could be considered a negative employment action. Usually, a bad review or performance improvement plan alone does not trigger a discrimination claim. They do, however, become part of your evidence of discrimination if you are later fired or demoted.
Sometimes discrimination occurs before you become an employee, if an employer decides not to hire you because of your protected status. Discrimination in hiring is just as real as discrimination in firing. It can be harder to prove because often you just doing have any information about what went into the hiring decision. Sometimes it is clear, though. For example, a person with a disability who is not hired because he can't pass a certain part of a test that is impossible with his disability.
Finally, there are times when a workplace environment is just too stressful and you feel you have no choice but to resign. When this involves discrimination or harassment, you may be able to claim constructive discharge.
If at all possible you should consult a lawyer before taking this step. It is much harder to prove a constructive discharge claim than a discrimination claim after you are fired. This is because in addition to discrimination you have to prove that the environment was so awful that no reasonable person could have put up with it. Resigning also can affect your ability to collect unemployment benefits if you can't find a new job right away.
Read more about what to expect as a plaintiff in a civil lawsuit.
There are other actions short of termination that could trigger a right to sue. If you are demoted or have your pay cut, for example. A transfer to a less desirable position or location could be considered a negative employment action. Usually, a bad review or performance improvement plan alone does not trigger a discrimination claim. They do, however, become part of your evidence of discrimination if you are later fired or demoted.
Sometimes discrimination occurs before you become an employee, if an employer decides not to hire you because of your protected status. Discrimination in hiring is just as real as discrimination in firing. It can be harder to prove because often you just doing have any information about what went into the hiring decision. Sometimes it is clear, though. For example, a person with a disability who is not hired because he can't pass a certain part of a test that is impossible with his disability.
Finally, there are times when a workplace environment is just too stressful and you feel you have no choice but to resign. When this involves discrimination or harassment, you may be able to claim constructive discharge.
If at all possible you should consult a lawyer before taking this step. It is much harder to prove a constructive discharge claim than a discrimination claim after you are fired. This is because in addition to discrimination you have to prove that the environment was so awful that no reasonable person could have put up with it. Resigning also can affect your ability to collect unemployment benefits if you can't find a new job right away.
Read more about what to expect as a plaintiff in a civil lawsuit.
Time Limits for Discrimination Claims
In most situations, the statute of limitations for discrimination lawsuits is 300 days, or approximately 10 months. You may see articles on the internet that say the deadline is 180 days or six months. This is true under federal law but in Massachusetts you have some additional time even for federal claims.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court then.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court then.
Discrimination Damages
If you are terminated and are successful in proving that it was the result of discrimination, there are a number of damages you can recover.
Back wages: this is an amount meant to compensate you for your wages from the time of termination to the time of judgment. It is important to remember that this amount is subject to mitigation. That means that you are expected to look for other employment. It also means that income you receive from unemployment and/or a new job offsets your back wages amount. For example, if you prove one year's lost wages, the back wages damages will be that number minus what you received in unemployment or other replacement income.
Emotional distress: you can receive compensation for emotional distress in a discrimination or harassment claim. The amount of these damages is harder to predict than back wages. It will depend in part on how concrete and severe your distress is, and in part on how outrageous the jury thinks your employer's conduct was.
Attorneys' fees: if you win a discrimination or harassment lawsuit, the employer is responsible for reimbursing or paying your costs and attorneys' fees.
Reinstatement or front pay: a court can, but does not have to, award reinstatement to your job as a remedy. This is extremely rare, because courts are generally hesitant to force people to work together after a dispute. It is possible but not required for the court to award "front pay" damages instead of reinstatement. This is essentially a continuation of back pay damages past the time of judgment. This kind of compensation is also rare, because you have to demonstrate why you can't get replacement employment at this stage despite efforts to mitigate.
Punitive damages: if the employer's conduct is sufficiently outrageous, you may be able to recover punitive damages. Punitive damages are meant not to make you whole, but to punish and discourage the behavior. Like emotional distress, this amount is difficult if not impossible to predict at the outset of a case.
When considering settlement of a discrimination claim, you and your lawyer will assess all of these potential damages. Your lawyer will also assess your chances of success if you were to go all the way to trial on your claims.
It is important for you to remember that things like emotional distress and punitive damages are hard to quantify before trial, and that how lawyers look at the settlement value of your case is likely to be driven more heavily by damages that are easier to calculate, like back wages and attorneys' fees. It is also important for you to remember that a good lawyer will discount the available damages to reflect the risk and uncertainty of taking your case to a jury.
Read more about how to prove an employment discrimination claim.
Back wages: this is an amount meant to compensate you for your wages from the time of termination to the time of judgment. It is important to remember that this amount is subject to mitigation. That means that you are expected to look for other employment. It also means that income you receive from unemployment and/or a new job offsets your back wages amount. For example, if you prove one year's lost wages, the back wages damages will be that number minus what you received in unemployment or other replacement income.
Emotional distress: you can receive compensation for emotional distress in a discrimination or harassment claim. The amount of these damages is harder to predict than back wages. It will depend in part on how concrete and severe your distress is, and in part on how outrageous the jury thinks your employer's conduct was.
Attorneys' fees: if you win a discrimination or harassment lawsuit, the employer is responsible for reimbursing or paying your costs and attorneys' fees.
Reinstatement or front pay: a court can, but does not have to, award reinstatement to your job as a remedy. This is extremely rare, because courts are generally hesitant to force people to work together after a dispute. It is possible but not required for the court to award "front pay" damages instead of reinstatement. This is essentially a continuation of back pay damages past the time of judgment. This kind of compensation is also rare, because you have to demonstrate why you can't get replacement employment at this stage despite efforts to mitigate.
Punitive damages: if the employer's conduct is sufficiently outrageous, you may be able to recover punitive damages. Punitive damages are meant not to make you whole, but to punish and discourage the behavior. Like emotional distress, this amount is difficult if not impossible to predict at the outset of a case.
When considering settlement of a discrimination claim, you and your lawyer will assess all of these potential damages. Your lawyer will also assess your chances of success if you were to go all the way to trial on your claims.
It is important for you to remember that things like emotional distress and punitive damages are hard to quantify before trial, and that how lawyers look at the settlement value of your case is likely to be driven more heavily by damages that are easier to calculate, like back wages and attorneys' fees. It is also important for you to remember that a good lawyer will discount the available damages to reflect the risk and uncertainty of taking your case to a jury.
Read more about how to prove an employment discrimination claim.
When Should You Consult an Employment Discrimination Lawyer?
A lawyer can help you at any stage in this process. Even if you haven't been terminated yet, an attorney can help you understand your legal rights and advise you from behind the scenes.
If you are fired, you can hire a lawyer to make a demand from your employer and try to negotiate a fair and reasonable severance package.
You can file a complaint in MCAD or at the EEOC without an attorney. Both agencies typically have staff that will help you fill out the forms and start the process. Having a lawyer at this stage still has its benefits. This can help ensure that your complaint puts your best case forward and that you meet all deadlines and requirements.
You are also allowed to pursue your claims in court without an attorney. This is called proceeding "pro se." You should know if you choose to go this route that pro se litigants are at a serious disadvantage in court. This is because the rules in court are more numerous and strictly enforced, and the law itself is somewhat specialized in this area.
If you are fired, you can hire a lawyer to make a demand from your employer and try to negotiate a fair and reasonable severance package.
You can file a complaint in MCAD or at the EEOC without an attorney. Both agencies typically have staff that will help you fill out the forms and start the process. Having a lawyer at this stage still has its benefits. This can help ensure that your complaint puts your best case forward and that you meet all deadlines and requirements.
You are also allowed to pursue your claims in court without an attorney. This is called proceeding "pro se." You should know if you choose to go this route that pro se litigants are at a serious disadvantage in court. This is because the rules in court are more numerous and strictly enforced, and the law itself is somewhat specialized in this area.
How Our Employment Lawyers Can Help
We can help you navigate these issues and get clarity on your rights and obligations in the face of an actual or imminent employment termination. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
