NOT KNOWING WHICH WAY TO TURN

Employers may be forgiven for scratching their head when trying to figure out whether they may be liable for an employee’s alleged unlawful discrimination.  The state of the law is, to say the least, confusing.

Imagine for instance the case of an employee whose employment was just terminated and who claims discrimination.  The company’s liability will be more easily invoked if the miscreant is a supervisor rather than a co-worker.  But who’s a supervisor? Within the federal government alone, the definition changes from agency to agency, when there is one at all.  For private employers sued under the Civil Rights Act, we now know from a recent Supreme Court decision that “supervisor” means one with hire/fire or similar authority over the complaining employee.  But that may not hold true under other laws.

The confusion does not stop there.  When the alleged discrimination is based on, say, race or gender, liability will depend on race or gender being a factor in the decision to terminate employment.  But when a complaint is brought under federal law on age discrimination, age must be the sole reason for the firing.

Let us add a few other layers.  The employee who claims to have been fired for race discrimination, again for example, and must only prove under the federal Civil Rights Act that race was a factor, would face a different burden if the company had retaliated against the same employee for reporting race discrimination.  Then the employee would have to show that retaliation was the sole reason for termination of employment.

Or consider that under federal law, only older employees are protected from age discrimination.  But under Florida law, adverse employment actions are actionable if due to age discrimination against the young or the old.

As is often the case, navigating the legal waters of employment discrimination will take a skilled attorney.