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Legal
standards have evolved that try to prevent frivolous cases from
going forward into the heart of the legal system, trial by jury.
Each case of sexual harassment, discrimination or retaliation must
first pass a Prima Facie test. Prima facie is a term that means,
"at first glance", and creates specific criteria to determine if
you can proceed with your charge of harassment, discrimination or
retaliation. Different jurisdictions may use different prima facie
standards. It is incumbent upon you to find out what the current
prima facie standards are in your jurisdiction, and ensure that
you meet them.
Prima Facie Case for Gender Discrimination- The standard
for determining gender discrimination was established in a Federal
case, McDonnell Douglas v. Greene, 411 U.S. 792 (1973). McDonnell
Douglas created a four part test to establish a prima facie case
for gender discrimination. This is the first big obstacle you must
overcome.
1. You must be a member of a protected
class. Protected classes are defined by race, gender, national origin,
religion, age and disability. As a woman, you are a member of a
protected class. The premise is that people in protected classes
should be treated no differently than someone who is not a member
of that class. You are legally "protected" from discrimination based
solely upon the fact that you are a woman.
2. You must be qualified for the position
you were in. This is not always that easy to prove. Typically there
will be criticism of your performance as justification for whatever
job action was taken. Employers are wise enough to know that they
must have adequate criticism of your performance to protect themselves
against lawsuits. Defense attorneys are trained to have you admit
that you were criticized, and then use that against you. Many judges
are influenced by this tactic and even use your own testimony in
their decision, e.g. "plaintiff has admitted that her superiors
criticized her job performance".
You will need to show that you were performing your job satisfactorily
and can do this in a number of ways. Know the details of all your
assignments and be able to recall them clearly, quickly and consistently.
Use copies of your prior performance appraisals showing your typical
ratings. Use any and all letters of commendation that you can obtain.
Ask your clients, co-workers, customers, staff, etc. to give you
letters of commendation. Keep copies of all your work to demonstrate
the quality of your work.Obtain copies of other employees work to
show the comparison. If possible, obtain copies of a white male's
work who is similarly situated to you. Demonstrate that his work
was similar to yours, but he was not criticized. Obtain the company
policy manual describing performance appraisals and performance
criticism. Demonstrate that the criteria used to criticize you was
not in accordance with company policy.
Many companies use subjective criteria, e.g." she is not a team
player, she does not communicate well, etc". Establish that criteria
for making job decisions should be objective, time bound, measurable
and realistic. If possible, demonstrate that prior appraisals or
appraisals of other employees fit this criteria while yours did
not. Try to find contradictions in what your superiors have said.
Did they criticize you for poor communications when they have previously
awarded you for good communications? Did they laud you for your
technical skills in one timeframe, and then criticize you for lack
of technical skills in the same timeframe, or close to it? Did your
job performance deteriorate rapidly according to them? Courts and
juries will tend to disbelieve a precipitous drop in your job performance,
if you have a strong history before the drop. Rebut your discriminatory
job action. Get it on record that you do not agree with the discriminatory
action and its fraudulent justification.
If you know that your superior is documenting you and criticizing
you due to discrimination, document it and tell him so in a letter.
List all of your accomplishments and reasons for contesting the
adverse job action. File a complaint with your Human Resource department
and/or EEOC, and ask for an investigation. Continually rebut all
unfair job actions taken against you, and get it on record. This
will help you when you get to court.
3. Despite your qualification for
the position, an adverse employment decision was made against you,
e.g.,you were discharged or demoted, received a bad performance
review, did not get a raise, did not receive a bonus, did not receive
training, were transferred to a lesser job, etc. This should be
easy to show by the adverse job action taken against you.
4. The position was filled by someone
outside of your protected class. This is another difficult point
to prove, especially in companies that are legally savvy. Many companies
have learned that they can cheat the legal system by discriminating
against women, and then replacing one woman with another woman.
If the company downsizes or restructures, and does not fill the
position, it may be possible to substitute other evidence of gender
discrimination for this fourth element. For layoffs, you do not
need the fourth prong of McDonnell Douglas.
For all elements of your case, you will need as many examples of
case law as you can find where the court found discrimination on
facts similar to yours. You will want your case law to be at the
highest court possible in your jurisdiction, and to still be the
current standard. You may also want to supplement the most persuasive
case law with additional case law from other jurisdictions and lower
courts.
Prima Facie for Sexual Harassment -
To establish a prima facie case for sexual harassment, you must
show that:
There were unwelcome sexual advances, requests for sexual favors
and other verbal or physical conduct of a sexual nature when
1. Submission to such conduct was
made either explicitly or implicitly a term or condition of an individual's
employment,
2. Submission to or rejection of
such conduct by an individual was used as the basis for employment
decisions affecting such individual, or
3. Such conduct has the purpose or
effect of unreasonably interfering with an individual's work performance
or creating an intimidating, hostile, or offensive working environment.
Prima Facie for Sexual Harassment, Hostile Environment- To
establish a prima facie case for hostile work environment sexual
harassment, you must prove
1. You suffered intentional discrimination
because of your sex.
2. The discrimination was pervasive
and regular.
3. The discrimination detrimentally
affected you.
4. The discrimination would detrimentally
affect a reasonable person of the same sex.
5. Management knew about the harassment,
or should have known, and did nothing to stop it.
Prima Facie for Retaliation- To establish a prima facie case
of retaliation, a woman must show by a preponderance of evidence
that
1. She engaged in a protected activity
known to the employer.
2. The employer thereafter subjected
her to an adverse decision.
3. There was a causal link between
the protected activity and adverse employment decision. Protected
activities usually encompass making discrimination and harassment
activities known to management, participating in Managing Diversity
programs, assisting another employee with a discrimination complaint
and other similar activities.
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