Not everyone who calls my office for a free consultation has a viable employment discrimination claim. Certain factors make cases too weak and too risky to take on under the New Jersey Law Against Discrimination (the “LAD”). Here are three of the most common reasons why I have to tell potential clients I’m unable to represent them:
Lack of Documentation
Longtime followers of this blog know that the failure to “put it in writing” can torpedo a claim. That’s why, if you believe you’re being subjected to workplace discrimination, retaliation or harassment, it’s imperative that you document it and report it to management. Preferably, you should do so in a letter or email that simply (1) gives a neutral and matter-of-fact account of the conduct against you (no dramatics, please); and (2) states your belief that such conduct amounts to unlawful discrimination. Also preferably, this documentation should be copied to relevant individuals up the chain of command, as well as to your HR representative.
Without such documentation, your claims of discrimination often depend upon witness testimony, which carries its own risks, the main being: Will the witness be willing to cooperate and give truthful testimony on your behalf if the witness still works for your employer? In my experience, the majority do, but a few are reluctant because they don’t want to “stir the pot” with the boss. Documentation gets around these risks and ensures you have a threshold of proof for your claim.
You Can’t Show You Were Treated Differently Than Others In Your Protected Class
In general, LAD claims require you to show that your employer fired you or otherwise treated you adversely based on the fact that you belong to a “protected class” – in other words, based upon your race, gender, age, pregnancy, or other status the LAD legally protects. To make this showing, you often have to prove that your employer treated you differently and at a disadvantage to those employees outside your protected class.
This becomes much more difficult to do in circumstances where:
- You were fired along with a diverse mix of co-workers. For instance, if your employer’s lay-offs only targeted workers over 60 while leaving younger workers in place, that’s a stronger showing that you were discriminated against due to your age. But if the lay-offs included workers of all ages? Not so much.
- You were replaced by a worker in the same protected class. For instance, let’s say you’re an African-American worker for a company that is largely not African-American. Perhaps you’re even one of only a few African-American workers in your department. If you are terminated and then replaced with another African-American worker, you will have a hard time convincing a judge or jury that your termination was due to your race.
Problems In Your Personnel File.
You don’t have to be an outstanding, exceptional worker to file an LAD case – but it certainly helps. Unfortunately, I have consulted with far too many employees who undermined their own claims by giving their employers the excuse to fire them. Excessive absenteeism or showing up to work late, arguing with co-workers or managers, failing to complete assigned projects on time . . . you may have perfectly good personal excuses for these, but they will have little sway on a judge or jury. (And as an aside, if you do file a claim or even threaten a claim, please rest assured that your employer will produce your personnel record – often in fairly short order. For this reason you should always be forthright and truthful with your attorney about any deficiencies in your job performance.)
Of course, sometimes a substandard personnel record can be discredited and shown to be “pretextual” – meaning the employer was fabricating or exaggerating the severity of a worker’s shortcomings as an excuse to discriminate against the worker. “Pretext” is often found where:
There is a sudden and drastic drop in the quality of an employee’s record.
Perhaps a worker earns stellar evaluations for years until she turns 60 and a new, thirty-something manager steps in; this new manager downgrades her from “exceeds” to “does not meet” expectations in most performance categories. Or perhaps a worker starts receiving the first warnings and write-ups of his career, only after he complains to the boss about his co-workers’ racist jokes and comments. Sudden drops like these indicate that the poor reviews and disciplines were bogus and simply an excuse for employers to unlawfully target workers for termination and retaliation.
Those outside the worker’s protected class are treated differently for the same infractions.
As an example, let’s say a pregnant nurse was written up and fired for multiple coding errors. If the nurse can show that other, non-pregnant nurses made the same or similar errors without suffering any discipline and termination, then she may be able to prove that her employer’s justification for firing her was bogus and a cover for pregnancy discrimination.
The scenarios I’ve sketched in this post are just that: scenarios. The relative strength or weakness of any LAD claim is highly dependent upon the individual and the circumstances. If you would like to speak to an attorney for an honest opinion on a prospective claim, call our offices today for a free consultation.