Can I Sue My Employer for Discrimination?

Unfortunately, discrimination in the workplace is all too common. Many victims of workplace discrimination wonder what, if any, legal recourse they have. The answer can be complicated.

Generally, in order to bring a lawsuit for discrimination, you will have to prove:

  1. That you are a member of a protected class;
  2. That the employer took an adverse action against you; and
  3. That the adverse action was because of your protected class.

In layman’s terms, you must be able to prove that the employer discriminated by taking some action against you because of your protected class.

Protected Classes

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Federal law defines protected classes and prohibits employers from discriminating against employees based on those protected classes. Title VII of the Civil Rights Act prohibits discrimination based on race, color, sex, sexual orientation, gender identity, pregnancy, religion, and national origin. 42 U.S.C. § 1981 also prohibits discrimination based on race but provides for more severe penalties.

The Americans with Disabilities Act (ADA) prohibits discrimination based on disability. The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age, but limits coverage to employees over 40 years of age. The Family and Medical Leave Act (FMLA) prohibits an employer from retaliating against an employee for using FMLA leave.

Finally, the Uniformed Services Employment and Reemployment Rights Act (USERRA) prevents employers from discriminating against employees for military service.

In addition, almost all states have laws prohibiting discrimination based on these protected classes. State laws, however, may be broader, and may prohibit discrimination based on additional protected classes such as weight or height.

These federal anti-discrimination laws combine to prohibit an employer from taking adverse actions against employees because of race, color, sex, sexual orientation, gender identity, pregnancy, religion, national origin, age, disability, FMLA leave, and military service.

Unfortunately, this means that if your employer is taking adverse actions against you solely because of a personality conflict, you likely cannot sue for discrimination.

Adverse Actions

In order to sue for discrimination, the adverse action must be what the law refers to as a “materially adverse action.” Up until recently, this meant that the adverse action must have resulted in a material or significant change to an employee’s terms or conditions of employment.

This generally limited discrimination claims to denial of promotion, non-hire, denial of job benefits, demotion, suspension, discharge, and a few other actions.

However, in 2024, in the case of Muldrow v. St. Louis, the United States Supreme Court broadened the definition of adverse action, holding that an employee need only show “some harm” to an “identifiable term or condition of employment.” This has opened up the possibility for discrimination claims based other adverse actions, such as where an employee is transferred.

Causation

Lastly, the employee must demonstrate that the employer subjected the employee to an adverse action because of the employee’s protected class.

There are numerous ways to do this. One is where there is direct evidence. For example, if the employer told the employee that it was terminating the employee because she is pregnant, there would be direct evidence that the employer terminated the employee because of the pregnancy.

Another method is to provide circumstantial evidence that gives rise to an inference of discrimination. For example, evidence that members of a different race were treated differently than the employee may qualify as circumstantial evidence giving rise to an inference of discrimination.

Retaliation

In addition to the prohibition on discrimination based on protected classes, many laws prohibit what can often be thought of as discrimination, but what is legally defined as retaliation, for engaging in certain protected activity.

In the context of the civil rights statutes, this includes opposing or reporting, or participating in an investigation of, discrimination.

There are also numerous whistleblower statutes that prohibit retaliation for reporting illegal conduct. However, these statutes usually define protected activity more narrowly and require the employee to have reported illegal conduct to a public body to fall within the ambit of protected activity.

For a retaliation claim, similar to a discrimination claim, the employee will have to prove that the employer took adverse action against the employee because the employee engaged in protected activity.

However, many retaliation statutes provide for a broader definition of adverse action, prohibiting the employer from taking any action that would dissuade a reasonable employee from engaging in protected activity.

Hostile Work Environment

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The same federal statutes that prohibit discrimination based on certain protected characteristics also prohibit the employer from permitting a hostile work environment to exist.

For a hostile work environment claim to be viable, the harassment must be based on the employee’s protected characteristic, i.e., race, sex, religion, etc.

The harassment must also be unwelcome and severe and/or pervasive enough to alter the terms and conditions of employment. There is no bright-line rule for what qualifies as severe and pervasive enough to alter the terms of employment. However, as a general rule, the more severe the harassment, the less pervasive it needs to be to satisfy this requirement.

The last requirement is that there must be a basis for employer liability. This means that the employer must have had notice of the harassment, but failed to take prompt, remedial action reasonably calculated to stop the harassment.

What recourse do I have?

If you believe your situation meets the above requirements, you may have a viable claim for discrimination, retaliation, or hostile work environment. In such a case, you have two options to pursue recourse externally.

First, you can file a claim with the appropriate federal agency. For instance, the Equal Employment Opportunity Commission covers claims of discrimination based on race, color, sex, sexual orientation, gender identity, pregnancy, religion, disability, age, and national origin. The EEOC will investigate and attempt to resolve the case. However, these agencies usually cannot bind the employer to any settlement. Moreover, studies estimate that the EEOC only brings a charge on behalf of the employee in about two percent of cases.

A much more effective means of recovery is to seek representation from an attorney. It is important that you research and find the best employment lawyers in your area. The skills and experience of employment lawyers vary greatly, and ensuring you obtain the best representation possible will help you maximize your recovery.

This page is for general informational purposes only and should not be considered legal advice.