Employment Law Presentation - July 29, 2013

Hi, my name is Travis Talboys, and I'm a law clerk here at University of Illinois Chicago Student Legal Services. This workshop here is to teach you all a little bit about employment law and the in's and out's of employment. I have with me Mr. Paul Strauss. He's currently the Co-Director of Litigation at the Chicago Lawyers' Committee for Civil Rights and the Law, as well as the director of the Chicago Legal Clinic Employment Opportunity Project. Mr. Strauss. Yeah, so again my name is Paul Strauss. I'm from the Chicago Lawyers' Committee for Civil Rights. The Lawyers' Committee is a consortium of leading Chicago law firms, the lawyers at which will provide legal services in civil rights cases for free. We have a staff of approximately 12 lawyers, I'm one of those staff lawyers. I'm Co-Director of Litigation and head of the Employment Opportunity Project and we have other staff lawyers that do housing discriminations, hate crimes cases, and I do any type of civil rights litigation that we feel is important and precedent setting. And then we have a group that does transactional work for not-for-profit organizations. I'm going to talk today about employment discrimination cases. So let me make it clear, I'm talking about employment cases. There's lots of other types of discrimination cases. There may be discrimination when there's back to the operation of public schools, for instance. We just finished a case, although it could be appealed, we just finished a case in which the school district that includes Elgin took Hispanic students that were gifted, who were native-born Spanish-speaking students, and put them in a separate gifted program separate from the mainstream program that was mostly white students, and we got a ruling that that was discriminatory and had to stop. You could have discrimination, for instance, with respect to police practices. Who's stopped on the highway or on the street based on racial profiling. But those are other types of discrimination, I'm here today to talk about employment discrimination. That's my first caveat. My second caveat is that there are laws that prohibit; the laws that prohibit employment discrimination are only one set of laws that govern employment generally. First of all I should just explain that there are federal laws and state laws.The federal laws are made by the federal government. They are passed by the United States Congress, and govern law in all the 50 states. So those are federal laws. Each state has its own state government, state legislature, and its own state laws. So if you're in Illinois, you have protection from federal government laws, federal laws, from Illinois state laws and you also, in Illinois, in Chicago, have some protection by laws that are passed by the Chicago City Council and the Cook County Board. Now besides discrimination laws, in Illinois there are federal and state laws that govern payment of wages. The federal Fair Labor Standards Act, the Illinois Minimum Wage Law, the Illinois Wage Payment and Collection Act: these laws provide that you have to get paid for the work that you do. You have to be paid the minimum wage; the Illinois minimum wage is higher than the federal minimum wage, you have to be paid the Illinois minimum wage; and you have to be paid overtime wages if you work more than 40 hours per week. I'm not going to talk in detail about those laws except I want to point out that under the Fair Labor Standards Act, the law that provides that you need to get paid overtime, there's a significant problem in many companies with saying that a certain class of employees is exempt from the overtime laws, and doesn't have to be paid overtime. Salaried, professional employees do not have to be paid overtime. Many employers though are taking employees that perform essentially non-managerial, non-professional functions and calling them exempt from the overtime laws, so you might have a fast food chain that has assistant managers that they are saying are salaried, management employees when in fact what they mainly do is exactly what the other sales employees, cashiers do, production employees, and the employer is wrongfully saying that they are exempt from the overtime laws. If you get in a job and you're not being paid overtime and you believe you should be or you have questions about that, you can call the Illinois Department of Labor, the United States Department of Labor, or you can call us at the Lawyer's Committee for Civil Rights and we'll be able to talk to you about that. Another major workforce law is the Occupational Safety and Health Law, it's a federal law administered by OSHA. That's particularly important obviously when you have safety concerns and you can contact the OSHA Administration. There are also laws that protect your right to discuss working conditions with your co-workers or to work to organize a union. Then governing union elections and mandatory bargaining, that's under the National Labor Relations Act and it's administered by the National Labor Relations Board, so if you work at a company and you are fired, for instance, for engaging in union activities or just engaging in activities like discussing what you're paid with other people at work, you can contact the National Labor Relations Board for help being reinstated at your job. So these are important laws that govern employment and give people employment protection outside of what I'm talking about today, which is employment discrimination, but you want to remember about those other laws. OK so, it's important to remember where we start from. Our starting point is that unless you are represented by a union, and have a union contract, or unless you're typically a high-management employee with an individual employment contract, if you don't have one of those things, then you're an employee at will. The starting point is that when you're an employee, if you aren't governed a by a union contract and you don't have any promise that you'll be employed for a set amount of time, that means you can be fired at any time for any reason, or for no reason at all, as long as it's not for one of the discriminatory reasons that are prohibited by law. So, if you're working on a job and you get fired because your employer doesn't think you dress professionally enough, even though that was unfair and you were not given proper notice, or you weren't given a fair chance, or there wasn't anything wrong with your dress, there's nothing you can do about it. They can fire you for any reason including a bad reason or a stupid reason, if it wasn't a discriminatory reason. You can get fired just because your boss took a dislike to you. You're an employee at will, and you can quit anytime you want to, for any reason or no reason, and you can be fired at any time for any reason or no reason. So you can fired as long as it's not because of your race, or your sex, or your age, or religion, or one of the other protected categories. And in fact it's not illegal to be unfair. An employer can be unfair to its employees if it's not discriminatory and it's not illegal. Everything that is unfair is not necessarily illegal, it's an important, sad fact to remember. It's here also that I should say something about unions, and I'm giving you my own ideological preferences here. Unions are terrifically undervalued in the United States and have an undeserved bad reputation right now. Unions offer some protection against arbitrary and unfair actions like firing someone for no good reason. Unions have typically negotiated a collective bargaining agreement that requires that someone could be fired only for cause and there's a grievance and arbitration procedure to enforce that. Wages and benefits are typically much higher when the workforce is represented by a union and union representation is really the only way that workers have the power to bargain over wages and working conditions. The very severe decline in union representation in the United States coincides in stagnation, actually with the decline in wage rates. There are many industries, like meat-packing for instance, where we used to have jobs in which people were represented by unions and made relatively high or decent wages, and we've gone in that industry to jobs in which there are no unions and the workforce is made up almost entirely by immigrants getting wages that aren't much higher than the minimum wage. So if you want people to be paid sufficiently to provide a living wage and the possibility of earning at least wages above the poverty line, we need to support unions. And if you want job security of some kind, you really need union representation. OK so having said that, let me talk about what types of discrimination are prohibited by law. The federal law, which is known as Title VII of the 1964 Civil Rights Act, and also the Age Discrimination in Employment Act, is enforced by an agency called the Equal Employment Opportunity Commission, the EEOC. The federal law prohibits discrimination on the basis of race or color. It prohibits discrimination on the basis of sex including the prohibition of *** harassment, or discrimination because of pregnancy. It prohibits discrimination based on national origin or ancestry, for instance if you were Hispanic or Polish. The Age Discrimination Act prohibits discrimination against people who are over 40. There is a law prohibiting discrimination based on disability. There is actually a prohibition on discrimination based on genetic information, and there's a prohibition on retaliating against anyone who has complained about one of these forms of discrimination. If someone files a complaint or charge of race discrimination and the employer fires them for that, that person has an ability to sue for the retaliation whether or not their underlying complaint of race discrimination was sound or not. The employer can't retaliate against someone for making a charge or complaint. Each of the laws in Illinois, the federal law and the state law, and the Chicago and Cook County laws cover at least these types of discrimination. And let me just tell you a little bit about the federal process before I go into the other types of agencies that are enforcing discrimination laws. If you feel that you have been discriminated against on one of these grounds, you can file a charge with the EEOC. A charge is a simple statement of what happened to you. I was employed at such-and-such a company from this date to this date. I was a satisfactory employee, performed well and up to my employer's expectations. I'm African American, I was fired. My work performance was as good or better as other people who are white who were kept. I believe I was discriminated against because of my race. That's all the kind of thing a charge has to say. You can go into the EEOC, they will help you draft a charge. Once a charge is filed, within seven to ten days it gets served on the employer. The employer knows that you have filed a charge. The EEOC is supposed to investigate the charge and gather information from each side. Eventually the EEOC will make a determination and issue a right to sue letter, which means you can then file suit if you want to in federal court. You have a court proceeding then in front of a federal judge and a jury to adjudicate your discrimination claim. So that's the federal law and the federal process. There are other laws that prohibit those types of discrimination and other types of discrimination as well. Maybe the most important is *** orientation. The federal law does not prohibit discrimination based on *** orientation but the Illinois Human Rights Act, which is enforced by the Illinois Department of Human Rights, does prohibit discrimination based on *** orientation. So does the Chicago Human Rights Ordinance that's enforced by the Chicago Commission on Human Relations, and so does the Cook County Commission on Human Rights enforce discrimination against *** orientation. So let me explain what these other organizations are. The Illinois Department of Human Rights enforces the Illinois Human Rights Act, which prohibits many different types of discrimination. It's similar to the EEOC in that the process starts with filing a charge of discrimination with the Illinois Department of Human Rights. They investigate the charge and make a determination, and then after that determination you can appeal to a hearing officer of the Illinois Department of Human Rights, and you get a hearing in front of that hearing officer. It's different than the federal process in that you don't get a judge and you don't get a jury. Now there is a point in the process where you can opt out and file a case in the Circuit Court of Cook County and then get your jury trial with a judge, and lawyers will make determinations about where they think they're likely to get the most favorable jury, whether it's in the Circuit Court of Cook County or the federal court. The Chicago Commission on Human Relations starts again with filing a charge. They'll do an investigation, and then you can get a hearing in front of a hearing officer who is a lawyer in private practice and is hired to do these types of hearings. The Cook County Commission on Human Rights is similar. Now there's relatively short timelines, time limits for you to file your charge of discrimination. If you want to file it in the Illinois Department of Human Rights, or the Chicago Commission on Human Relations, or the Cook County Commission on Human Rights, you have 180 days from when the decision was made against you to file a charge. If you're filing with the federal EEOC, you have 300 days to file your charge. OK so the state and local agencies cover *** orientation where federal law does not. They also prohibit discrimination based on marital status. The Chicago Commission and the Cook County Commission also handle claims of discrimination based on parental status - that is, whether you have children. They also cover discrimination based on source of income. The Chicago Commission on Human Relations, the Cook County Commission, and the Illinois Department of Human Rights all handle prohibitions on discrimination based on military discharge status. Now the Illinois Human Rights Act, enforced by the Illinois Department of Human Rights, also prohibits discrimination based on having an arrest record. So in Illinois it is illegal to refuse to hire someone because they have been arrested. The law on prior criminal convictions is more complicated and I'll talk about that in a minute, but it's very clear in Illinois that an employer cannot fire someone or refuse to hire someone because they have an arrest record. And you know that makes a certain amount of sense, a person with an arrest record was never found guilty of anything. They were arrested but not convicted and there's no reason why they should be subject to discrimination on the basis of that reason. Now there's also some nuances about how big the employer has to be for you to be able to bring a claim against them. For the federal law, and for the state law that's enforced by the Illinois Department of Human Rights, the employer has to have at least 15 employees, so a very small employer, you cannot sue them under the federal law or the state law. There is one exception for race discrimination, there is way to sue small employers for race discrimination under another law that's called 42USC, section 1991. If you are dealing with a small employer though, you can file a charge with the Chicago Commission on Human Relations or the Cook County Commission. Any employer, no matter how small, can be liable, and individuals can be liable so if you work in a small restaurant that only has five or ten employees, you can bring your charge to the Chicago Commission on Human Relations or the Cook County Commission. If the owner or the manager of the restaurant was personally involved in managing the company and the discrimination, you could sue that person individually at the Chicago Commission or the Cook County Commission. I'm hoping I'm not being too technical, but I do want to try to explain things the best I can. So let's talk about how these types of discrimination most commonly occur, starting with race discrimination. Claims of race discrimination are most typically brought with respect to discharge, promotion and hiring. Now most claims of discrimination are made these days by people who've been discharged. That makes a certain amount of sense in that people who are currently employed by a company don't typically want to file a charge or a claim against the company because they're afraid that they will lose their job or be retaliated against in one way or another. You know it is illegal to retaliate against somebody but it does happen all the time, and people's worry that they don't want to bring a claim because of potential retaliation is a sensible worry. So once people have been fired though, they don't have that reluctance obviously and they're out of a job, and they need income, and so they think about bringing the discrimination claim that they've been thinking about for a while, or they feel they were discriminated against at discharge. So that's not just race claims, those are sex claims, religion claims, age claims typically are brought by employees who have been discharged. But in race cases you also claims of discrimination in promotion and discrimination in hiring. Hiring discrimination is particularly tough because when the potential plaintiff comes into my office to talk about it, he or she doesn't really know what the hiring pattern at the company was. There's some reason to be suspicious but you know you don't know how many white people they hired or how many black people they hired or how many Hispanic people they hired. So it's hard to know even at the outset if there's a good case or not. I will say that in race cases there tend not to be these days a sort of smoking gun, direct statement that we don't want black people, or we don't want to hire black people or some direct expression of prejudice. Most supervisors and managers and HR people at almost every company in every aspect of society know that they're not supposed to say those kind of things no matter what they think. And most, not all, but a lot of race discrimination now is not conscious in the sense that the people who are engaged in it are thinking about stereotypes. They're not really thinking, they're acting out internal biases that they have that almost everyone in our society has based on race. But if you ask them if they are prejudiced, they would say no, and they would say that they acted for reasons other than race. Even if studies show that people are heavily, heavily influenced by race in their decision-making. Sex discrimination typically involves issues about pay, not being paid as much as men doing similar work or in the same job position, and promotions, being passed over for promotions is a common complaint. And also, I would say being assigned; in businesses that have accounts or customers that people get assigned to, not getting assigned to good accounts is a constant problem. *** harassment is a very common issue. There can really be two types of *** harassment. One is of a boss or a co-worker demanding *** favors; a boss demanding *** favors with the threat of losing your job is not uncommon. And then there's the different kind of *** harassment which is harassment by employees, often co-workers, to drive women out of the workforce. Very common in traditional male occupations, in construction or truck driving or other jobs that are held almost entirely by men. Pregnancy discrimination. The situation where a woman becomes pregnant and goes out on pregnancy leave and her job is officially eliminated while she's on pregnancy leave. The thing about pregnancy is an employer is only required to treat a pregnant employee the same way they treat other employees that have some disability. So if the employer would allow someone who had a heart attack to take a disability leave for some period of time then they have to also allow someone who has a pregnancy disability, if you want to call it that, to be able to take a disability leave for some period of time. But they don't have to treat pregnant employees any better than they treat other employees, so if they don't allow any time off for disability for other employees then it appears from my reading the law anyway, that they don't have to treat pregnant employees any different. Although I would say that area is not settled. Religious discrimination. The two most common complaints one hears are about being discharged by someone who has a religious bias. We see this most commonly now by employees who are Muslim who feel that they've been fired by someone who has an anti-Muslim bias. Or failure to accommodate a person with religious needs. For instance, forcing someone to work on a Saturday who celebrates the Sabbath on Saturday when it would be possible to schedule that person to work other days of the week. That's a kind of religious discrimination claim we have. Disability discrimination is typically about the failure to provide reasonable accommodations to someone with a disability. The federal Americans with Disabilities Act requires an employer, if someone has a disability, to allow reasonable accommodations so that could be additional equipment, rescheduling of some hours, making the workplace wheelchair accessible. I have a disability case now for a man who had multiple sclerosis, who worked for the post office in a facility where for years he was allowed to park his van that had a ramp that took down his wheelchair, he can't walk, and he could wheel in his motorized wheelchair up the ramp into an automated garage door that opened and let him into the building. And he was suddenly told he was no longer allowed to park there and his van would be towed, and the problem is there's no other accessible way to get in the building for him. So he was forced into retirement and we have a lawsuit about that. National origin discrimination. That means what country you come from or your ancestry. Typically these are discharge cases. Often people who are African American may feel that the employer is favoring people who are Hispanic. People who are Hispanic may feel that they are being discriminated against by people who are running the company who are Polish. People who are Muslim may argue that they were discharged because of an anti-Muslim bias. And age discrimination, very common to have age discrimination discharge cases. People saying that they were fired because the employer felt that they were too old. This is one where actually there are often statements made by people about the employee's age, with managers asking "Are you thinking about retirement? Aren't you old enough to be thinking about retirement? At your age, you out to be thinking about retirement." All sorts of comments can be made or found, or happen about people's age. So let me talk a little bit about when you need to get a lawyer, or if you need to get a lawyer. You can probably do the charge filing process yourself without a lawyer. And you can probably go through the investigation process and answer the questions from the EEOC that they'll ask you, or from the Chicago Commission on Human Rights, without a lawyer. If you're at the Illinois Department of Human Rights, I think you might want to get a lawyer because that's more of a legal-type proceeding, and there is this opportunity to get out of there and get into the Circuit Court with a jury. And to do that, you're really going to need a lawyer to help you do that. After you have filed the charge and the investigation is over and you get the results of the investigation you're given at that point, you can file a lawsuit. At that point, you really need to be talking to lawyer or several lawyers, and finding out what they think about your potential case. People try to represent themselves in these cases but court proceedings really are too complicated for people who are layman to expect to handle it themselves. For instance, in an employment discrimination case, the defendant will move for something called summary judgement, almost certainly and if the defendant wins that motion, your case is over, forever. You lose. Now most people don't even know what a summary judgement motion is, much less how to respond to it. To respond to it, you need to marshal your evidence in a way that can be introduced into evidence. Most of us don't really know what qualifies as evidence. You know what is hearsay, and what's not hearsay? How do you draft an affidavit? What does that even mean? What do you have to do to authenticate your documentary exhibits? And what do you have to do to establish a foundation for those exhibits to go into evidence? Those are all questions that laypeople wouldn't be expected to know the answer to, and you won't have to write a brief with legal precedent in it with citations to cases and discussion of what they mean. Laypeople don't know how to find those opinions, how to cite them, how to make sure that they haven't been reversed. So it'd be very difficult to respond to a summary judgement motion without a lawyer. And that's only one of the steps that you need to cover before you even get to trial, if you get to trial. And of course trial is complicated and governed by all sorts of rules a layperson can't possibly be expected to know. So when you get past the charge-filing state and you're at the point where you're thinking about whether you should file a lawsuit, you need to talk to some lawyers and find out whether you have a case that's worth bringing, and whether a lawyer will represent you. Now remember when you're looking for a lawyer, you're looking for a lawyer who will take the case on a contingent-fee basis. Let me explain what that means. There's two different ways that a lawyer can charge for his or her legal services. The first is they can charge you by the hour for every hour they work. They work 3 hours drafting your complaint, they send you a bill for 3 hours of time. They work 8 hours for taking the statement from a witness, they're going to send you a bill for 8 hours of time. Lawyers charge $250 an hour, $350 an hour, $450 an hour, $400 an hour - it's a lot. It builds up really fast. You can't afford it if you're a normal, middle-class, modest income person. Even if you're well-off, you really can't afford it. It builds up to tens of thousands of dollars very, very fast. The other way that lawyers charge for their services is they will take a contingent fee, meaning that they don't get paid anything if you don't win or settle. If you do win or settle, they get a share of your recovery. That's what you want, you want a lawyer who will take your case on a contingent-fee basis. Lawyers are more able to take employment discrimination cases because these laws have provisions that say that if you prevail, the defendant can be required to pay your legal fees. So the lawyer can look at your case and say if this case is a winner, I'm going to get paid at the end by the defendant. And that's good news for you because you may have to pay a portion of your recovery to the lawyer, but a lot of your fees can be paid by recovery from the defendant. So a lawyer will take your case if he thinks it's a good enough case, that he has a good chance to win or to settle. He's not going to take your case if he doesn't think he has a high chance of winning or settling. A lawyer is going to judge your case by the likelihood of getting paid. The lawyers who do this work are sympathetic to claims of discrimination, they're usually in this field because they are committed to trying to end discrimination, but they're practical-minded. They know they have to make a living. They're not doing anybody a service by taking cases that lose or going out of business, so they're going to be looking for cases that they can win. And if they don't think it's a winning case, then you should not be bringing it, you should never be in the position where you can't find a lawyer to take it on a contingent fee so you pay a lawyer to do it. We have people come to us, it happens quite frequently, that they had paid some lawyer $5,000 or $10,000 to handle their case. The lawyer's done some work but is nowhere near finished and says he won't do any more work without getting paid more money. And at that point, the people are without funds and they've lost their $5,000 or $10,000. That's not a situation you want to be in. How do you find a lawyer? You want someone experienced at doing this kind of work. The easiest thing to do is to call the Chicago Lawyers Committee for Civil Rights. We will interview you, we'll give you our sense of whether you have a good case or not. If we think you do have a good case, we'll help you find a lawyer. If for some reason we can't do it with our people, we can suggest lawyers who are experienced in this field and do a good job. One other thing that you have to keep in mind is whether you can, whether it's worthwhile bringing a suit. It might not be worthwhile because the employer is so small that it's going to go out of business or declare bankruptcy or already has. We have a case right now for an African American man who was discharged from a restaurant where he was subjected to all sorts of racial comments and indications of really gross racial bias, but the company that owned the restaurant has dissolved, and so we don't know whether we'll actually be able to collect money from anyone even if we prove that this company discriminated against our client. I'm going to tell you now just a little bit about what happens in a lawsuit, so that you understand if you were in the situation of being subject to employment discrimination, what's going to happen. First of all, time will have passed before you file your lawsuit because there will time where your charge has been at the EEOC or at the Chicago Commission on Human Relations or whatever. And maybe a year has already gone by by the time you file your lawsuit. I'm going to explain now what happens in federal court after you've filed your charge with the EEOC and you've found a lawyer, and you're suing. The first thing that happens is both sides are required to give each other some information. Information about the witnesses that they know about that will help their side, documents that they have that will help them, and information about insurance coverage. Each side just has to give that information at the beginning to start the process of letting each other know what evidence there is in the case. Then there's a process called discovery in which you can get more information from the other side. You can ask the other side to produce documents, you can give them written questions that they have to answer called interrogatories, you can take depositions which mean you can require witnesses to come into a room like this and answer questions under oath. Typically as I said, after that the defendant will try to get the case dismissed without a trial. If you get past that stage there is a trial in front of a jury or judge in which the plaintiff, the person bringing the lawsuit, has the burden of proving that discrimination occurred more probably than not. The burden's on the plaintiff to prove the case. In lawsuits in general, it's hard to hear this, and people don't really believe it, but slanting evidence and lying about things is endemic; it happens all the time on both sides of cases. It's just very easy for people to say things that aren't true without feeling that they're going to suffer any consequences from that. So if you're a plaintiff you have to be ready for former supervisors to come on and say bad things about you, co-workers who are still employed there to say bad things about you, even if they're not true. That's very common. I do want to say I think race discrimination against African Americans is particularly difficult to prove unless you have some kind of blatant statement. The jury on your case is typically going to be made up of a majority of white people. It's my belief that white people on the whole are resistant to believing that there is race discrimination against blacks. White people tend not to identify with that situation and they will be skeptical, and it's hard without some kind of gross statement of racial prejudice to prove that was the reason for an action. You know age discrimination is different. Everybody is going to get older at some point, and they can imagine that situation. Or they have parents who are older and whatever their race, they can identify with someone who's worked a long time for a company and suddenly been fired. That seems unfair and juries tend to be sympathetic to people with age cases. Sex is more complicated. Religion is complicated. But I think race is particularly hard. The one situation that is not as hard is that there is some very gross racial harassment that occurs in some workplaces with employees being harassed by their co-employees. Those kind of things are often gross, gross racial statements and slurs, and those cases can be brought and won. The employer's liability is established if the employer knew about the harassment but didn't take prompt action to prevent it from occurring anymore in the future. So how do you prove a discrimination case? There's really two types of proof. The first and the most common is you have to prove that the defendant acted with a discriminatory intent, that they treated you differently because of your sex, or your race, or your national origin, or your religion. You have to prove that that's what the decision-maker was thinking about. You sort of have to be able to prove what's in their head and obviously it's hard to prove what someone is thinking about. You have to prove that by inferring things from their actions or from their statements. The employer in these cases will almost always argue that the plaintiff was a bad employee, and they will gather testimony from supervisors or co-workers that the plaintiff was a bad employee. They will rely on whatever documentary evidence they have, any performance figures or any warnings that were ever previously given. There's almost nobody as an employee that can't be criticized in some way or another, so you're going to have contest about that. And the plaintiff's job is to prove that the reasons given for the decision, the failure to hire, the firing, failure to promote, the plaintiff has to prove that that's not the real reason that the action was taken, and the real reason was because of race or sex or age or whatever. Now in theory, the plaintiff is supposed to win if the plaintiff shows that there was another person of a different race, or different sex, or whatever who was treated better, and that the reason given by the employer for its actions are false. That's all the plaintiff is supposed to have to prove; that they were treated differently than someone of the other race or sex or age, and that the reasons given by the employer for the action are false. The truth is though, it's hard to win without some other evidence of discriminatory purpose. It's hard to win in a race case without some statement having to do with race. Same in an age case, same in a sex discrimination case. Those discriminatory intent cases, it's just difficult to win based on some inference without something more to help you prove. The second way, and this is used much less often, the second way that you can win a discrimination case is if there is a policy or practice of the employer that has a disparate impact. And what we mean is there's a neutral rule, it doesn't say we're discriminating against black people or we're discriminating against women, but there's a rule on its face that's neutral that has the effect of excluding one group at higher rates than another, and that's illegal where the employer can't show that the practice is a business necessity. So a disparate impact case for instance might challenge a height requirement. You have to be over 5'6 for this job, where that height requirement has the effect of excluding women at higher rates than men, if the employer can't show that you really need to be that tall to do the job. Or, a disparate impact case might be a case involving a pen-and-paper achievement test that blacks fail at higher rates than whites, where the employer can't show that that test actually measures the aptitudes that are required for the job. The employer that uses a screening device that has a disparate impact will be found liable unless the employer can show that that screening device is a business necessity. So tests are a classic, constant source of discrimination claims, often that win. Now one thing I just want to take a second and talk about is a company practice of refusing to hire someone, anyone who has a criminal record of a felony conviction. That's not unusual that employers say we're not going to hire you if you have felony conviction, and this is becoming more and more of an issue because it's becoming more and more common for employers to run background checks on applicants they're thinking of hiring as a matter of course. As I said earlier, it's illegal in Illinois to refuse to hire someone because they have an arrest record, but what about someone who has a felony conviction record? There is an argument for blacks and Hispanics that a policy that says we are never going to hire someone who has a criminal conviction is illegal because it has a disparate impact on African Americans or Hispanics because African Americans and Hispanics have criminal conviction records at higher rates than whites. But you may be talking about a person whose last criminal conviction was 10 years ago, or 15 years ago, or 20 years ago, and there are sociological studies that show people whose convictions are that old are no more likely to commit another crime than someone who's never had any criminal conviction. So this is something that we're working on at the Chicago Lawyers Committee. It's a very important issue. We are in this country creating a class of people who are unemployable because employers are refusing to hire anybody with a felony conviction, even if at this point they're of no risk whatsoever to anyone. It's not something that is good for society to create a class of people who can't support themselves. So that's another potential discrimination there. So we should talk about what you might get if you win one of these cases. What's the damages, what's the recovery? There's three types of damages: back pay for the wages you lost, and when I say wages I mean wages and other benefits including medical insurance, pension benefits, 401(k) contributions. So there's back pay. Reinstatement, that is being put back into your job if you were fired. Compensatory damages for things like emotional distress and punitive damages to punish the employer. Let me go back over those for a minute. Back pay is to compensate you for the wages you've lost. So in a failure to hire case, for instance, it's the amount of money you would have earned in a job if you had gotten hired up until the point of trial minus the amount of money you earned from other jobs since then. There's that mitigation factor, you're going to subtract the earnings that you got from other jobs. If you were fired, your damages are the amount of money you lost by no longer having that job up until the point of trial minus the amount of money you earned in your other jobs that you've had since you were fired. You have to make an effort to look for other work and find comparable employment. If you could've found other work and didn't then the court will subtract the amount of money that it's determined you reasonably could have earned if you had looked adequately for work. OK that's back pay. Reinstatement. The typical order in a case if you win is that you get back pay and you get reinstated to the job that you were fired from in a termination case A lot of people don't want to go back to work for that company that they have sued, and it's not unusual when you get an order of reinstatement for the company to give you an amount of money instead of having you come back to work as a way to settle and resolve and get rid of the case. Compensatory damages are largely for emotional distress. There are people who suffer severe emotional distress as a result of discrimination. You know if you lose your job, you lose income and the ability to pay your mortgage or rent. There are people who go into deep depression, serious depression, clinical depression. Their lives really do fall apart. People get divorced because of stress over money. They feel helpless, they feel enraged. There are nightmares, there is sleeplessness, weight loss, all the aspects of depression. Some people don't have any of this at all, but damages for emotional distress can be fraudulent you know, people can make it up, but it's more real and common than you might expect. It's not a good thing to be unable to get a job and out of work and unable to pay for the place where you're trying to live. Punitive damages are granted to punish the defendant if the behavior is really outrageous. So you don't have punitive damages in all cases, but it's out there as a possibility. In all cases, one time or another, there's very likely to be discussions about whether the case can be settled. There may be discussions about that after you file your charge before any kind of lawsuit is filed. There might be discussions about that relatively soon after a lawsuit is filed. There are typically discussions about that shortly before a case is going to go to trial because everybody's scared about what could happen at trial. And after a trial, even after you've won or lost, typically more if you've won, there will be settlement talks where the defendant offers to pay an amount less than you won at trial, but it would give up its right to appeal. And when people talk about settlement, they're always talking about getting less or paying more than they might have to at trial. The plaintiff to settle a case takes less money than he or she would get at trial because that way they're sure of getting something and don't run the risk of losing and getting nothing at all. The defendant will pay money to settle a case less than it would pay if it loses, but much more than the zero it would pay if it wins because the defendant wants to manage the risk that it might lose and have to pay a lot of money. Instead of that, it would settle to pay less. OK let me just give some examples about how these cases might go, what might happen to your case. So for instance, I have a pregnancy case right now, I don't know for sure how it's going to go, this is what I think is going to happen. So my client worked at a bank where the boss, her supervisor. Oh, I'm sorry. This young woman was pregnant and unmarried, and her boss said derogatory things about young women who get pregnant and have babies without being married. This was a job where she had to go stand out in the aisles of a grocery store, the bank is in a grocery store, and tried to solicit customers for business. She's heavily pregnant and most people get sent out to aisles maximum an hour and a half or two hours at a time. She was sent out to do it four hours at a time, which is hard to do standing for four hours at a time when you're pregnant. She was not allowed to take a bathroom break even though other people were allowed to go use the bathroom. She was not allowed to take a break to get a drink of water even though other people were. And she was written up and disciplined if she did do things like that, or she sat down somewhere in the store when she was supposed to be standing up in the aisles. When she got near her due date she got fired. She was told when she fired, her boss said well now you'll have some more time to spend with your child, indicating that that's certainly what he was thinking about. She was told that the reason she was fired was supposedly for not bringing in as many accounts as she was supposed to. She says the records will show that she was one of the top producers there. We filed our charge with the EEOC several months ago. The EEOC has taken no action yet, so we've requested a right to sue letter so we can go on to federal court. We had a settlement conference run by the EEOC in which the employer was not offering anything close to what our client would or might settle for. The key evidence we think is going to be the record of account productivity. If our client is right and records show that she was one of the top producers, that will help her case tremendously that she was fired because of her pregnancy and not because of poor production. If the numbers don't show that, that's going to be a problem for us. What are we going to do? We'll take the deposition, that's the sworn statement under oath where we get to question. We'll take the deposition of her boss to get him pinned down to what he says he did and why. Does he agree that he had her working the aisle for four hours at a time? Will he agree that he would not let her take a bathroom break? Will he agree that he would not let her take a drink break? Does he admit what the numbers are with respect to productivity? Does he admit or does he deny that he made comments about unmarried women having children? We'll take depositions of anyone else who has bad things to say about our client. We'll get written statements of people who have favorable testimony, who saw our client being treated differently than other employees, who heard discriminatory comments. The defense lawyer will depose our client. They'll try to get her to agree that she was disciplined for sitting when in the aisle, that she was warned about it, that she was told she could be fired if it happened again. The defendant is likely to depose the other witnesses that we have that are favorable to the plaintiff. There will be some re-judgement motion. There will be settlement discussions prior to trial. Most cases settle, because people are judging what the risks are and willing to mitigate their risks by coming somewhere in the middle. So they avoid having disaster happen at trial. If the case doesn't settle it'll be a trial that will probably last 4-5 days. There will be issues both about whether we win, whether we've proven discrimination, and what her damages are. She has had her child, she is going to nursing school now. There will be a lot of arguments about what her back pay damages are since she's not gone into other employment but has gone into school instead. So that's one example of a case. Here's another example of a case that's over. This was a racial harassment case for an African American man who worked at a car sales place who received virulently racist email jokes, that were supposed to be jokes, that were sent to a number of employees by a young white man at the dealership who was the son of one of the owners. Our client sent a very mild email saying that the conduct had to stop, and the next day he was moved from selling used cars to selling new cars, which meant he would make a lot less money. He quit from the dealership about seven months later. His claim was that he was forced to leave because of the racial conduct, that he could not stand it, and that he should get damages for his lost pay because he didn't earn as much in the jobs he went to after the dealership, and for his emotional distress, punitive damages. And let me say, these emails were gross, I mean they used the word "***" and they used the word "***" and they just were gross. This case lagged at the EEOC for a number of years, causing a lot of frustration for our client who eventually just wanted to get it over with and try to get some money for his injuries, and get on with his life. We eventually had a settlement conference with the defendant. The defendant couldn't argue that the emails weren't sent. The plaintiff, our client, had copies that he had printed out. I mean they tried to argue, but there was no reasonable argument that these weren't overtly racist and offensive. So in that situation, what did they argue? First of all they argued that there was no retaliation. They said that the email our client sent complaining about it went to a manager at an email address that he didn't normally use. That the didn't see it until weeks later, so that their movement of him to a new job was not in retaliation, it was just coincidental, supposedly. They argued that moving from new car sales to used car sales was not actually a demotion. They argued that the plaintiff didn't leave because of emails where he left seven months later. They said he left for other reasons that didn't have anything to do with the emails. And hanging over all of this, there was an arbitration agreement, which the plaintiff had signed when he went to work, which is not unusual. There will be a form document that you have to sign that says if you have any complaint about what happens at your employment instead of going to court, you have to go to arbitration. That's very typical for employers to have people sign that, and it's worse for the plaintiff. Arbitration is not as favorable as being able to go to court. That case ultimately settled. The defendant presented these arguments, we argued about them, there's a negotiating process, we say we want this amount, they offer this, we go lower, they go higher. Ultimately hopefully the parties reach a point where there can be a settlement. That case settled for enough money so that it was worth taking rather than going through further delays and the risk of losing at arbitration or trial. That's the basic story. If anybody has any questions, I'm happy to answer your questions. I have a question. Some of our students, they do have criminal backgrounds and you know they try to come in and do expungement or sealing. The background checks that are being done by employers, what's the punishment that employers would get for using old background information? You mean background information that isn't accurate? Right because of the fact that now the record might be expunged or might be sealed but they're using something that's... The company that going to be liable for that is the background check company, not the employer. The employer has a defense, we got this from a background check company. The background check company has an obligation to provide accurate, up-to-the-date information under what's called the Fair Credit Reporting Act, but the damages are limited. So there's up to $1000 statutory damages. And then you arguably could get more damages if you could prove that you were not hired because of the inaccurate background check, but that's going to be hard to prove. So the students, who would they report that to if they believe than an old background check is being used rather than something that's more current? Well first of all they should tell the employer that, that this isn't accurate. Second of all, they need to contact the background check company and demand that the background check company update its information, and make it correct. If they're black or Hispanic and they did not get hired because of a felony conviction and it's more than seven years old, they should call me and we should talk about it. Awesome. OK. OK, thank you very much.