Why Not Me?
It has recently come to my attention that some people – and not just my wife and mom – are occasionally reading this thing. So, yeah, sorry about not posting since…uhm…March. If you posted a comment forever ago that wasn’t about Ambien or Russian porn, I probably didn’t approve it ’til just now. Sorry for that, too. I’ll try to make up for it over the next week or so with a few posts I’ve had brewing. At some point, I’ll work on the website too. Baby steps.
Part of the reason I can’t get into a groove with recreational writing is that I’ve been doing a lot of professional writing. I’m not complaining. I like research and writing better than any other aspect of lawyering. But after you crank out a couple of briefs right in a row, you don’t wanna write no mo’. It’s just like reading. After law school, recreational reading has basically become a thing of the past for me. It’s a shame; I still had a lot of books I wanted to read. But I digress.
Right now, employment discrimination cases are taking up the vast majority of my time. And a substantial percentage of the time I spend on those cases is occupied by telling people they don’t have a case. Most employment lawyers on the plaintiffs’ side will tell you: for every 20 people who want to sue their (former) employer, you might have one or two cases that will actually stand a chance at getting to a jury. That’s not to say those cases will get a lot of money, or even any money at all, for someone who’s been wronged. That’s just the nature of American employment law. Most people don’t understand it, and I can definitely see why. Turning someone away is the worst part of my job. After all, if someone does something wrong to you, you ought to have recourse, right? Not always.
So as a public service, both to you and to myself, I offer this tongue-in-cheek, (hopefully) plain-English FAQ to determine whether you have a case for employment discrimination. Take it for what it’s worth. I hope you find it edifying, enlightening, and entertaining.
Q: I was fired for being twenty minutes late. It’s the first time I’ve ever been late to work, and I told the manager I was sorry. Can I sue my employer for wrongful termination?
A: No. A maxim used by employment lawyers everywhere is: you can be fired for any reason, or no reason at all, but not for a wrong reason. So what’s a “wrong” reason? In a nutshell, your age, race, sex, religion, disability, or national origin. There are some exceptions to this, but not many. If you don’t think your termination was based on any of those factors, you probably don’t have a case.
Q: I was fired for being twenty minutes late. It’s the first time I’ve ever been late to work, and I told the manager I was sorry. I’m the only African-American at my workplace, and my White co-workers routinely show up twenty (or more) minutes late without any kind of punishment. Can I sue my employer for wrongful termination?
A: Getting closer. If workplace rules are applied to one race, sex, religion, etc. differently than another, it’s discrimination. It can be tough to prove, though. When you break an employer’s rules, the deck is stacked against you.
Q: I am a Mexican-American. I recently complained to my supervisor that the Mexican employees in the workplace were being being discriminated against. My supervisor told me that was none of my business and fired me on the spot. Can I sue my employer for wrongful termination?
A: BINGO. This is by far the most common scenario we see nowadays. If you make a good-faith complaint of discrimination, you can’t be sacked for that. In fact, you can’t be terminated for making such a complaint even if you belong to a different group than the one you’re complaining about. For example, if I complain about Company X discriminating against Black employees, and I’m White, I can’t be terminated for making that complaint.
Q: I have worked at Corporation X making clown shoes for 35 years. It’s a deeply unfulfilling job, but I was a loyal employee. Last month, a new supervisor was hired. This person made my life a living hell. She berated me in front of my co-workers every day, nitpicked my work, and called me horrible names. It was obvious that she was trying to make me quit, and eventually I did. Can I sue the company for creating a hostile work environment?
A: No. These are the worst cases to turn down. This kind of thing happens all the time, and it absolutely breaks my heart. But the law doesn’t prohibit your supervisor’s assholishness. A hostile work environment is only a “hostile work environment” in a legal sense if it is based on race, sex, etc. One of the unfortunate features of our ultra-capitalist system of employment is that you can put in 35 years making clown shoes, and then be fired just because some slick new supervisor doesn’t like the look on your face.
Q: I live and work in rural Kentucky. My boss fired me when he found out I’m a lesbian. He called me every name in the book, and he even admits that he hates homosexuals and doesn’t want them anywhere near his business. Can I sue the employer for wrongful termination?
A: No. There is no specific protection under the state or federal civil rights acts for sexual orientation. A lot of people are shocked to learn this, and rightly so. It is high time for Congress to get off its collective ass and extend some real protections to the LGBT community. Now, I hasten to add that there are some pretty big exceptions to this one. First, if you are in Louisville, or any of a growing number of cities in Kentucky, you’ve got the Fairness Ordinance. This gives you the right to sue for discrimination based on “sex, gender identity, or sexual orientation.” And fortunately, federal courts seem to be trending toward allowing protections for the LGBT community based on “sex” if a plaintiff can prove that s/he was discriminated against for not conforming to traditional gender roles.
Q: I am the only Jewish person out of a total of six employees in my workplace. My new supervisor told me I was fired because he didn’t like Jews. He used anti-semitic slurs against me and sent me home. Can I sue my employer for wrongful termination?
A: Believe it or not, no. At least not in Kentucky. I know, I know, this one’s crazy. The problem is that according to Kentucky’s civil rights laws, an employer with fewer than eight employees is not an “employer” at all. In the federal system, an “employer” has to have twelve employees or more. Thankfully, we don’t see this kind of thing happening too much in 2009. If it happens to you, you should talk to an attorney anyway, because there may be some other course of action you can take. For example, Louisville’s local anti-discrimination ordinance defines an “employer” as having only two or more employees.
Q: I work for a private corporation. I recently discovered that the owner murdered a whole troop of girl scouts and hid their bodies under Papa John’s Cardinal Stadium. I reported it to the police. As they dragged the guy away in chains, he yelled at me: “YOU’RE FIRED!” Surely I can sue the company for wrongful termination, right?
A: Wrong. The rule still applies: you can be fired for any reason except race, sex, etc. That includes reporting criminal activities of the employer under many circumstances. There are some big exceptions to this one, too. An employer can’t fire you because you refuse to commit a crime, for example. And if you work for the government, you might qualify as a whistleblower.
Q: Okay then, let’s say I work for local or state government. And let’s say I report that my supervisor is taking bribes, and HR fires me the next day. Game on?
A: You bet. You’re a whistleblower (at least in Kentucky). In fact, you don’t even have to be fired. If they diminish your job duties, suspend you, or discipline you in any way, you’ve got a potential cause of action.
Q: Good! But what if I’m a federal employee?
A: Oooh, that one’s tricky. It’s going to depend on the specific facts of your situation. Better talk to a lawyer. Before the Roberts-era Supreme Court, you would have had a pretty clear cause of action under the U.S. Constitution. Now, not so much.
Q: I was fired from my job for smoking half a pound of weed and driving the company dumptruck right into a giant trampoline full of nuns at a church picnic. I was high as a kite, but they can’t prove it. Also, uh…I think I was discriminated against. Yeah.
A: PLEASE STOP CALLING ME.
Let me be perfectly clear that THIS POST IS NOT LEGAL ADVICE. If you’re seriously thinking about taking legal action, you should definitely talk to a living, breathing attorney about the particulars of your situation. Do not, I repeat, DO NOT take the internet’s advice on legal matters. The internet is not a lawyer. This stuff is waaaaaay too nuanced to rely on some yahoo’s WordPress post. But hopefully this will give you an idea of how this stuff works.
And lawyers: please chime in with your thoughts in the comment section. I promise I’ll be a better moderator.
