INFORMATION ABOUT
EMPLOYEES' RIGHTS UNDER
FEDERAL AND STATE EMPLOYMENT LAW

Over the years many people have felt the sting of discrimination at work because of their race, religion or gender. For others, abusive and intolerant supervisors have turned the workplace into a battle zone. To combat this conduct, Congress has enacted three major laws over the last thirty years to protect workers from discriminatory and otherwise hostile work environments that may affect a person's job performance as well as their lives outside the workplace. Similarly, many state legislatures have also enacted laws prohibiting discrimination and harassment in the workplace. The following is an overview of the protections afforded by these laws.

We hope that the questions and answers presented here will assist you in familiarizing yourself with employment discrimination issues and terms. While the material below attempts to answer common questions in this area, State and local laws may significantly modify the facts set forth. Because all legal problems are unique, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

WHAT IS DISCRIMINATION?

"Discrimination" means unequal treatment. In Pennsylvania, it is against the law to treat a person unequally in employment, housing, places of public accommodation, and educational institutions because of a person's race, color, religion, national origin, ancestry, sex, age, handicap or disability, use of guide dog because of blindness, or possession of a G.E.D. instead of a high school diploma. The Pennsylvania Human Relations Commission was created to enforce the law. There are many unfair situations in our world. Some are unfair but legal; others are unfair and illegal.

WHAT KIND OF TREATMENT IS UNFAIR AND ILLEGAL, AND WHAT KIND OF TREATMENT IS UNFAIR BUT LEGAL?

Some examples are as follows:

UNFAIR AND ILLEGAL	UNFAIR BUT LEGAL
Two persons of different race are absent and tardy the same number of times; one is suspended or fired, the other is not.	Two persons of the same race are absent and tardy the same number of times; one is suspended or fired, the other is not.
Two persons of different race have a loud argument; one is suspended, the other is not.	Two persons of the same race have a loud argument; one is suspended, the other is not.
Female employees are required to make coffee daily and clean up the lunchroom, but males are not.	All clerical staff, both male and female, are required to make coffee and clean up the lunchroom, but management personnel are not.
The boss regularly offers overtime work to men but not women who have equal seniority.	The boss regularly offers overtime work to his/her "pets" but discriminates against those he/she doesn't like by refusing overtime; both are of the same sex.
Two persons of different race or sex were hired about the same time and do the same work. One is paid $4.85 per hour, but the other is paid $6.15 per hour.	Two persons of the same race or sex were hired about the same time and do the same work; one receives $4.85 per hour, the other receives $6.15 per hour.

These examples are simple. Most real life situations are more complicated and you should discuss with an attorney any situation that you think is unfair AND illegal.

WHAT FEDERAL LAWS GOVERN CONDUCT IN THE WORKPLACE?

Title VII of The Civil Rights Act of 1964, found in volume 42 of the United States Code beginning at section §2000e, provides that no person employed or seeking employment by a business with more than 15 employees may be discriminated against due to his or her race, color, religion, sex, or national origin.

The Americans With Disabilities Act (also known as the "ADA") and found in Volume 42 of the United States Code beginning at section 12101, is intended to remove the barriers preventing qualified individuals with disabilities from enjoying the employment, transportation, communication, and cultural opportunities available to persons without disabilities. The ADA makes it unlawful for an employer with 15 or more employees to discriminate in all employment practices such as recruitment, hiring, promotion, training, lay-off, pay, firing, job assignments, leave, and/or benefits because of an employee's disability.

The Age Discrimination in Employment Act (also known as the "ADEA") and found in Volume 29 of the United States Code beginning at section 621, provides that no person shall be discriminated against because of his or her age. If an employer terminates an individual who is older than 40 years of age and there appears to be no valid reason for the termination other than the employee's age, the former employee may have a valid complaint against the employer for age discrimination under this law.

WHAT SHOULD I DO IF I THINK I AM THE VICTIM OF DISCRIMINATION?

The Federal Equal Employment Opportunity Commission (also known as "EEOC") is the federal agency charged with the responsibility of initially investigating charges of discrimination. If you believe your employer has violated Title VII of the Civil Rights Act, the ADA or the ADEA and you want to pursue a claim against your employer, you must report the discriminatory conduct by filing a complaint with the EEOC within 180 days of the discriminatory conduct. Under certain circumstances this time limit is extended to 300 days from the date of the discriminatory conduct.

If your claim arises under the ADA, in addition to the employer's discriminatory conduct, you will have to prove that you have a "disability" as defined under the Act. If you do not have such a disability, you may not be able to sue the employer under the ADA, but you may still have a right to sue under appropriate state law.

WHAT WILL THE EEOC DO?

After you file your complaint with the EEOC, the agency will contact your employer for its version of the events set forth in your complaint. The EEOC may also request documents from your employer and interview witness. The EEOC has 180 days to complete its investigation. If the EEOC determines that your complaint has merit, it will attempt to resolve the issue with your employer on your behalf. If it is unsuccessful, it may sue your employer in Federal Court. If the EEOC chooses not to pursue your claim it will, after 180 days, issue a "Right to Sue" letter. This letter is your authorization or permission to file a lawsuit in Federal Court against your employer if you so desire. If at the end of 180 days the EEOC has not concluded its investigation, you may request a right to sue letter from the EEOC or wait for it to finish its investigation.

CAN I SUE IN FEDERAL COURT WITHOUT GOING TO THE EEOC?

NO! You must file a claim with the EEOC within the proper time limits before you can sue in Federal Court.

WHAT IS SEXUAL HARASSMENT?

Sexual harassment is, unfortunately, a common form of discrimination in the workplace. The most obvious type of sexual harassment is a demand by a superior that a subordinate engage in some type of sexual conduct in exchange for a promotion or raise. Sexual harassment is not limited to this type of conduct, however. Sexual harassment also includes any pattern of harassing or demeaning comments by one person to another merely because of the receiving person's sex. This includes a man harassing a woman; a woman harassing a man; or a man or woman harassing another of the same sex. The law is violated if the discriminatory or harassing behavior creates a hostile work environment, regardless of whether the unwanted behavior is "sexual" in nature. If a person is subject to such behavior merely because of his or her gender, the behavior is considered to be sexual harassment and is actionable under federal law.

HOW DOES THE ADA DEFINE A DISABILITY?

The ADA defines a disability as:

· A physical or mental impairment that substantially limits one or more of your major life activities; and

· There is a record of such impairment; or

· You are regarded as having such an impairment.

ARE THERE OTHER LAWS THAT GOVERN DISCRIMINATION IN THE WORKPLACE?

Yes. Most states have enacted laws that prohibit employment discrimination. These laws may have different remedies than the Federal laws and may, in certain circumstances be more favorable than the Federal laws. If you believe you have been discriminated against, your attorney will investigate the remedies provided under both the federal and state statutes.

DOES AN EMPLOYER NEED A REASON TO FIRE AN EMPLOYEE?

Most states follow the doctrine of "employment-at-will." This means that either the employer or employee may terminate the employment relationship with or without cause and with or without notice. However, an employer cannot violate Federal or State laws by unlawfully discriminating against an employee. In addition, several exceptions to the at-will doctrine have developed. For example, certain states permit at-will employees to sue their former employers for wrongful termination based on theories such as violation of a clear mandate of public policy, whistle blower laws, or breach of a recognized duty of good faith and fair dealing. Further, certain states also recognize employee handbooks as an employment contract and, thus, a termination may give rise to a breach of contract claim. Of course, an outright employment contract or union contract may also give rise to a breach of contract claim. Since the at-will doctrine and exceptions to it varies from state to state, you should consult with a local attorney.

WHAT IF I HAVE A COMPLAINT ABOUT MY WAGES?

If you disagree with the amount your employer believes he or she owes you, or if your employer does not pay you for hours worked, your local Department of Labor, Wage/Hour Division can help you. Look in the blue pages of your local telephone book to find the telephone number of this agency. Also, attorneys' bring lawsuits for non-payment of overtime, etc., so consult with an attorney if necessary.

I AM A TEMPORARY EMPLOYEE. DO I HAVE FEWER RIGHTS THAN A REGULAR EMPLOYEE?

No. Temporary employees have the same rights as any other employee to sue over illegal discrimination, sexual harassment, ADA violations, or labor disputes. Even though your employment agency is technically your employer, you may have legal rights against both the employment agency and the company itself. This likelihood increases if you have been a long-term temp at the company, and the company exercises supervisory control over your work assignments, hours and means of performance.

DO I HAVE ANY RIGHTS AS AN INDEPENDENT CONTRACTOR?

Even if your employer considers you an independent contractor, as is the case for example with physician employees, your work conditions may make you a de facto employee, rendering you eligible for legal protection. The labor laws most likely to pertain to independent contractors, in general, and physician employees, in particular, include: Americans with Disabilities Act, Family and Medical Leave Act of 1993, COBRA, ERISA, Title VII, Age Discrimination in Employment Act of 1967, and Equal Pay Act of 1963.

DO I NEED AN ATTORNEY?

You may file a complaint with the EEOC and any state or local agency that deals with employment discrimination without the assistance of a lawyer. The agency employees will help you complete the necessary forms to start your case.

If your case has already been reviewed by the EEOC and you now want to file a lawsuit in Federal Court, you will need an attorney. The Rules of Procedure in Federal Court as well as the various laws are complex and confusing. Your employer will have an attorney and you will be at a severe disadvantage if you try to handle the case on your own.

HOW WILL MY ATTORNEY GET PAID?

Each of the Federal laws discussed above authorizes the Court to order the defendant to pay your attorney's fees and costs if you are successful in your claim. This firms, like many firms, will not charge you a fee if you are unsuccessful. It is also our policy not to ask a client to reimburse us for out of pocket expenses we incurred if you lose your case. That is not the policy of all attorneys, however. As in all cases where you retain an attorney, the two of you should agree in writing to the fee arrangements before any work is done on your case.

This is just a brief summary of very complex and far reaching laws. If you or someone you know believe they have been the subject of discriminatory conduct prohibited by Federal law, a DESSEN, MOSES & ROSSITTO attorney will be happy to review the facts of the incident. Just press the button below to submit a factual history form.

If you have other questions or comments about this area or any other area in which we practice, please send us an E-mail message with your questions or comments and we will be happy to try to assist you.

LINKS TO OTHER INTERESTING INFO

ADA and Disability Information
Age Discrimination in Employment Act
Americans with Disabilities Act (ADA)
Benefits Link
Bureau of Labor Statistics
Civil Rights Law
Department of Health and Human Services
Department of the Interior
Department of Justice
Department of Justice (ADA Home Page)
Department of Veterans Affairs
Employee Benefit Research Institute
Employee Benefits Resource Site
Facts About Pregnancy Discrimination
Federal Rules of Civil Procedure
Federal Rules of Evidence>
Feminist Majority Foundation
General Information on the Fair Labor Standards Act>
Job Accomodation Network (JAN)
Occupational Safety and Health Administration>