Discriminatory Firing Claims


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What is discriminatory firing?


Discriminatory firing, or wrongful termination, occurs when an employer discharges an employee without just cause because of his or her race, color, religion, sex, sexual orientation, national origin, disability, age, or ancestry.


How do I prove a discriminatory firing claim?


The following are the elements you must show to prove discriminatory firing:1. You belong to a protected class;
2. You performed your job satisfactorily;
3. Your employer took an adverse employment decision against you; and
4. Your employer continued to have your duties performed by a comparably qualified person.


You must show adequate evidence to meet each step above to prove your claim. The evidence required in each case will vary depending on the specific facts and circumstances of your claim.


If you can show direct evidence of discrimination, the above requirements are automatically met. Direct evidence is evidence showing a discriminatory motive, and not just evidence that infers a discriminatory motive. For example, a female employee who was told that she was fired because her only problem was "you sit when you pee," was able to show direct evidence of discrimination.


How do I show that I am a member of the protected class?


This element is easily satisfied. In Maine, women are a protected class under the Maine Human Rights Act (MHRA).


How do I show that I performed my job satisfactorily?


Courts will look at performance reviews and other objective standards in determining whether or not an employee performed satisfactorily. A court has determined that test scores placing a woman at the bottom of a list of applicants showed that she was not qualified for a position to be a police officer. While this case was based upon discriminatory hiring, it illustrates a standard that courts will use.


Your employer will be given an opportunity to rebut this by offering a legitimate non-discriminatory reason for your termination that may or may not be based on your job performance.


What is an adverse action?


In the case of discriminatory firing, this element can be met by showing that the you were actually fired or "constructively discharged." Constructive discharge occurs when employer's actions make working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign.


Courts have decided that constructive discharge has taken place when unwanted and unwelcome verbal and physical conduct of a sexual nature caused a woman to resign from her waitress job of three years.


How do I show my former position is filled by someone as qualified as me?


The final requirement is that the you must show that you were replaced by a comparable person following your discharge, whether it be constructive or actual. This element can be established fairly easily based on objective standards.


I can meet those requirements. Now what?


Once you have demonstrated that each of the four requirements for wrongful discharge claims is more likely than not to be true, the law requires that the employer provide a "legitimate, nondiscriminatory reason" for the adverse employment action.


In cases of discriminatory firing, the adverse action is discharge. Typically, it is relatively easy for the employer to give a non-discriminatory reason for the discharge. Poor work performance and slow business have been upheld as legitimate non-discriminatory reasons even in the face of some direct evidence of discrimination. See "requirements to prove a claim" for an explanation of what direct evidence is.


If the employer is able to offer such a reason, the employee must show that the reason given by the employer was mere pretext. Pretext is a false reason given to cover the real, discriminatory reason for the adverse action. The employee can show pretext by showing that the reason given is not supported by the evidence, the reason given did not actually motivate the discharge, or that the reason given was insufficient to warrant the discharge. For example, in one instance a woman was able to show that discriminatory comments her employer made were proof enough that the given reasons for her ultimate firing were a pretext.


Can I ever be fired because I am a woman?


The Maine Human Rights Act allows employers to discriminate against women when based on a "bona fide occupational qualification" (see below for examples and further explanations of a BFOQ). While this will not be an issue in many firing situations, it has arisen in regards to pregnancy.


What is a bona fide occupational qualification?


An employee's gender is a bona fide occupational qualification (BFOQ ) when gender is reasonably necessary to the normal operation of a particular business.


Examples of when courts have allowed a BFOQ include when privacy interests are involved. For example, courts have generally upheld that corrections departments can prohibit women from working in specific positions in male prisons.


However, the courts have consistently held that the bona fide occupational qualification should be limited to very specific circumstances. As a result employers may not use the defense of bona fide occupational qualification because the work environment would expose a pregnant woman's fetus to harmful chemicals.



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