Discriminatory Firing Claims

 

It happened to me:
A Real Life Story

 

I think I was fired because I am a woman, how do I prove it?

 

In Ohio, R.C. 4112.02 makes it illegal for your employer to fire you because you are a woman. There are four requirements you must meet to prove that you were fired because you are a woman. As the employee, you must show that:
(1) You are a member of a protected class;
(2) You were subjected to adverse employment action (in this case discharge);
(3) You were qualified for the position; and
(4) A comparable, non-protected person was replaced you.

 

If you have direct evidence that you were discriminated against by your employer because of your gender, you will automatically have a claim of discrimination and do not need to establish each of the four requirements above. For instance, if your employer tells you in a meeting that he or she is firing you because you are a woman, you have direct evidence of discrimination. However, an employer's true motivations are often hard to discern, which makes obtaining direct evidence difficult.

 

If you do not have direct evidence, you must provide adequate evidence that each requirement is more likely than not to be true in order to make out your discrimination claim. The evidence required in each case will vary depending on the specific facts and circumstances, but looking at previous cases in Ohio can help you learn what kind of evidence is necessary.

 

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

 

This element is easily satisfied. In Ohio, women are a protected class under R.C. 4112.02(A). Employment discrimination based on sexual orientation is not actionable under this statute. However, individuals who are perceived as, or who identify as homosexuals, are not barred from bringing a claim for sex discrimination under Title VII.

 

How do I illustrate that an adverse action has occurred?

 

You can do this by showing that you were actually fired or "constructively discharged."

 

What is constructive discharge and how do I prove it?

 

Constructive discharge occurs when your employer's actions make working conditions so intolerable that a reasonable person under the same circumstances would feel compelled to resign.

 

The court will look at whether the facts and circumstances of your work environment would lead a reasonable person to believe that your resignation was bound to occur. For instance, isolated uncomfortable incidents in the workplace, including unwelcome touching by male co-workers, as well as being told a dirty joke by male co-workers, does not necessarily amount to sexual harassment. As mentioned, the test is whether a reasonable person would have felt compelled to resign under the same circumstances. The jury will consider what constitutes "reasonable under the circumstances."

 

It should be noted that even if you choose to resign one year after the alleged discriminatory incident, it may still be considered constructive discharge if you attempted to take steps during your employment to resolve the discriminatory situation.

 

How do I show that I was qualified for the position?

 

To demonstrate that you were qualified for the position, you must show that you were capable of performing the work and that you also met the employer's legitimate needs and expectations.

 

How do I show that I was replaced by a comparable, non-protected person?

 

In order to meet this requirement of your claim, you must show that you were replaced by a man equivalent in skill.

 

You can do this by presenting evidence demonstrating that you had a different title than other directors with the same responsibilities yet received lower pay. You can also do this by showing proof of any discrepancies in salary and benefits between yourself and the current male employee who replaced you. From these facts the jury could conclude that your employer failed to provide the same position, salary grade, and benefits as they provided to the non-protected employee.

 

What happens after I establish the requirements of discriminatory firing?

 

Unfortunately, meeting the four requirements is not all that is required to win your case. Once you meet the requirements, your employer will be given a chance to show a "legitimate, non-discriminatory reason" for your discharge. A "legitimate, non-discriminatory reason" is basically any reason that the employer has for discharging the employee that is not discriminatory or illegal. Typically, it is relatively easy for the employer to give a non-discriminatory reason for the discharge.

 

For what reasons can I be fired?

 

You can be fired for any legitimate, non-discriminatory reason, such as a violation of your employer's policies. Other examples of legitimate reasons for termination include, but are not limited to, failure to work well with others, incompetence, and inability to perform the duties of the position.

 

If my employer gives a justification for my termination, but I still think I was fired because I am a woman, is there anything I can do?

 

If your employer offers a legitimate reason for your discharge, you must show that the reason given by the employer was "mere pretext" in order to win your case. Pretext is a false, non-discriminatory reason given to cover the real, discriminatory reason for the adverse action. You can show that the reason given was pretext by showing that it 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.

 

In one case, an employee filed a claim for wrongful discharge based on both age and sex. Her employer claimed that her discharge was simply part of a necessary reduction in the workforce. As part of her sex discrimination claim, the employee attempted to show that the workforce reduction was pretext by showing additional evidence that she was replaced and therefore, that her position was not eliminated. The court found that this evidence was enough for a jury to reasonably conclude that the employer's legitimate, nondiscriminatory reason for her discharge was mere pretext.

 

My employer has fewer than 4 employees -- is there anything I can do?

 

Yes. You may be able to bring an independent civil action under a claim of wrongful discharge in violation of public policy. The requirements for the claim are as follows:
(1) That a clear public policy existed and was manifested in a state or federal constitution, statute, or administrative regulation, or in the common law. This is referred to as the clarity requirement.
(2) That dismissing employees under circumstances like those involved in the employee's dismissal would jeopardize the public policy (in other words, your dismissal would run contrary to general societal expectations about how employees should be treated by their employers). This is referred to as the "jeopardy requirement."
(3) The employee's dismissal was motivated by conduct related to the public policy. This is referred to as the causation requirement.
(4) The employer lacked overriding legitimate business justification for the dismissal. This is referred to as the overriding justification requirement.

 

Just as with the requirements for claims brought under R.C. 4112, the employee must show that each element is more likely than not to be true in order to succeed.

 

How do I meet the clear public policy requirement?

 

There must be a clearly expressed public policy (i.e., a societal expectation about how employees should be treated by their employers) that is evident in the laws against discriminating on the basis of sex in order to succeed on a claim for wrongful discharge. For example, Ohio anti-discrimination law R.C. 4112.02 expresses a public policy against gender discrimination.

 

See the "jeopardy element" section below for an example of a clear public policy.

 

How do I meet the jeopardy requirement?

 

You must demonstrate that dismissing other employees under circumstances like your own would jeopardize the public policy (in other words, you must show that your employer's actions run contrary to general societal ideas about how employees should be treated by their employers). If you are fired because you are a woman, this would violate the public policy concerns regarding gender discrimination, which are expressed in Ohio's anti-discrimination law R.C. 4112.02.

 

In one case, a woman brought a claim for wrongful discharge in violation of Ohio's public policy against pregnancy discrimination. The court held that she met both the clarity and jeopardy requirements listed above because she demonstrated that firing pregnant employees would be in violation of Ohio's clear public policy against pregnancy discrimination expressed in R.C. 4112.

 

How do I meet the causation requirement?

 

You must show that your discharge was motivated by conduct related to the public policy. If there is a jury trial, the jury will decide whether this requirement is satisfied. Because this kind of case is infrequently brought, there are few examples of discriminatory firing cases that succeeded in proving this requirement.

 

How do I meet the overriding justification element?

 

The final requirement of the wrongful discharge claim is that you demonstrate that your employer lacked an overriding legitimate business justification for the dismissal. The jury decides if you have met this requirement. This is similar to the part of the case brought under the statute where the employer has a chance to offer a legitimate, non-discriminatory reason for the discharge, and the employee has to show that the reason given was pretextual. Again, since this cause of action is infrequently pursued, examples of successful claims are rare.

 

 

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