What is discrimination?
When we meet with our clients, one of the most frequent complaints we hear is their concern that they have been discriminated against. Discrimination, of course, is not necessarily unlawful. Indeed, we all discriminate many times every day. For example, a person might decide to go to a movie rather than a football game – this is a form of discrimination. The real question that we focus on is why has a person been discriminated against.
The law provides that certain types of discrimination are unlawful and prohibits employers from making decisions based on some of these illegal criteria. For example, an employer generally can not decide not to hire a person because of their gender. Likewise, an employer can not make an employment decision based upon a person's race. What we look to is whether our clients are in what is known as a "protected class" and then whether the employment decision they complain about is because of their membership in that protected class (e.g. disability, gender, race, religion). In short, discrimination occurs when an employer makes a decision because a person is a member of a protected class. Here are the questions that guide a discrimination analysis:
- Am I a member of a protected class?
- What action by my employer am I complaining about?
- Was this action caused because of my membership in a protected class?
When we first meet with our clients we look carefully at the facts to see if there is a reason to believe that they might have been subjected to unlawful discrimination.
How is a discrimination claim handled?
While there are a variety of ways in which a discrimination claim can be brought, the most common way of challenging an employment decision as discriminatory is to file a charge of discrimination with an administrative agency. In Illinois, these claims can be filed before the Illinois Department of Human Rights and/or the Equal Employment Opportunity Commission. Additionally, a number of different municipalities have mechanisms by which individuals can file employment discrimination claims. Unfortunately, the majority of people who file claims before either the Department of Human Rights or the EEOC do so themselves, or worse, with the assistance of someone processing those claims at those agencies. These administrative agencies will engage in an initial investigation.
Unfortunately, many people go directly to these different administrative agencies and have the agencies help them with their claims. This oftentimes becomes problematic because the people who help at the agencies are not lawyers and oftentimes do not understand the significance of the different issues that are being addressed by an employee.
How BB+K can help you if you feel you have been discriminated against
Typically the first thing that we will do is meet with you in person or over the phone to discuss your particular concerns. We typically charge a flat fee for this initial consultation and you can contact us to arrange such a conference. Once we do that we will then outline a plan that is narrowly tailored to serve your specific interests. That might include preparing an administrative complaint on your behalf and representing you before either the EEOC or the Illinois Department of Human Rights. Again, we typically charge a flat fee for this representation. From time to time, clients come to us and they have already filed a charge with one of the different administrative agencies and they feel as though they need our assistance and we do so.
- Consultation for flat fee - we will work around your schedule to discuss your concerns and help you develop a strategy for dealing with discrimination in your workplace.
- Assistance in drafting a charge of discrimination - Many people make the mistake of drafting a charge of discrimination with the assistance of an administrative agency and not with the assistance of an attorney. This can come back to be problematic because the agency might not include the critical claims that are likely to be successful. We work with clients to draft an administrative claim that has the greatest chance of being successful. Unfortunately, the claims processors at administrative agencies are not trained to spot different issues and they typically fail to include some of the key facts and legal theories that are the most advantageous to your claim. At BB+K we, for a flat fee, assist people in preparing their claims of discrimination to be filed.
- Representing them before an adminstrative agency - Administrative agencies will conduct some type of an investigation. While the types of investigation differ, once a complaint is filed with an agency, it will do some type of an investigation. Unfortunately, we see instances where an individual has been cajoled by an investigator into dropping all or a portion of their claim and they turn to us after having done so. Investigators and employer's attorneys know that individuals are not overly knowledgeable of both their legal rights and the procedure and they tend to take advantage of this lack of knoweldge. We represent individuals in these investigations for a flat fee.
- Representing employees in court - When matters are not resolved, it is often necessary for the matter to be litigated in either state or federal court.