Employee Rights Attorney
Mission Viejo, California
Martin Luther King would have turned over in his grave had he read Herdie Baisden’s article, “Advice for Unemployed Black Professionals” in a recent issue of this publication.
Mr. Baisden, a consultant hired by companies, essentially encourages employees to focus on future jobs, to eliminate anger toward their former employers, to not dwell on past job discrimination and to not pursue their rights against employers who discriminate against them.
As an attorney who exclusively represents employees, my advice to victims of job discrimination would be far different.
1. Understand your anger. Rather than simply “moving on” with your life, first understand the anger that causes such anxiety. If your termination really had nothing to do with improper discrimination, then Mr. Baisden’s advice would be appropriate. However, if discrimination was an issue, ignoring the injustice won’t solve the problem. If anything, failure to understand and demand your rights will cause you to suffer financial losses, further insecurities and a lack of confidence in subsequent employment.
2. Determine if there was discrimination. You need to find out whether discrimination was, in fact, involved in your employment or termination. To do so, you can consult self‑help books, available at any bookstore; the U.S. Equal Employment Opportunity Commission (which offers free advice, investigation and resolution of discrimination issues); state agencies that offer services similar to the EEOC’s; private support groups focusing on particular types of discrimination (such as race, sex or age); or local bar association or newspaper telephone help‑lines that review discrimination laws. Also, many attorneys offer free or inexpensive initial consultations to evaluate discrimination claims. Knowledge of your rights, or lack of them, will bring you power to control your feelings.
3. Determine the strength of your case. You’ll likely conclude that discrimination may have played a role in your employment problem or termination. Most people have a theoretical “case.” The key is whether it’s strong enough to justify the investment of time, money and stress necessary to pursue your rights. When evaluating a case, attorneys look at several factors:
a. Liability. Can you prove-through witnesses, biased statements, documentation or evidence of a “double standard”-that discrimination was a factor in an improper employment action against you?
b. Damages. Even if you’re confident you can win, it may not do any good if the employer’s improper actions have caused you little harm. Evaluate your current and future wage loss and emotional distress. A weak case of liability can be offset by a strong case of damages, and vice versa.
c. Sensitivity. Even without a lawsuit, cases that involve “sensitive” or embarrassing facts about the employer usually are resolved quickly.
d. Collectability. Even if you win your case and are awarded a large amount of money, it does you no good if you can’t collect it because the employer has financial problems.
e. Other factors. You must consider a long list of other important issues, many of which have nothing to do with law: such as your cash needs, re‑employment options, stress and potential for harm to your reputation.
4. Consider your options. Mr. Baisden’s article discourages you from pursuing a “long, drawn‑out legal battle” or trying to “milk” the employer because it distracts you from your real task of finding a new job. The real task should be both finding a new job and evaluating all your rights and options, as follows:
a. Employer’s internal grievance procedure. The employer’s system for addressing grievances, if any, is usually a prompt method you can follow. You should fully evaluate your case first to determine the appropriate settlement amount.
b. Informal negotiation. A disgruntled employee certainly can confront the employer personally and make a demand for a resolution. The worst the employer can do is say no. However, in most cases, the employee doesn’t really know what to ask for or how to “push the right buttons” to make things happen. Thus, he won’t be taken seriously.
c. Government agency. The EEOC and various state agencies provide investigation and resolution of discrimination complaints without charge. The disadvantage is that it often takes a year or more to go through the process and the agencies limit their investigation to this issue.
d. Small claims lawsuit. You don’t need a lawyer and the case can be wrapped up in a matter of weeks or months, but you’re limited to a nominal award, such as $5,000. Also, even if you win, the case can be appealed to a higher court with attorneys present.
e. Attorney negotiation. Most companies would prefer this option over resolving employee disputes through litigation. It’s estimated that the average cost to defend these types of cases in court is more than $100,000, giving the employer a strong incentive to resolve legitimate discrimination claims.
f. Lawsuit. Not all lawsuits are long, expensive and drawn‑out. Many courts throughout the country have prompt, expedited procedures. Also, prompt arbitration is becoming more popular. Some attorneys take these case on a contingent‑fee basis, in which most or all of the fee is paid only if you win.
g. Seek job transition income. The stress of financial pressures during job transition can be lessened by unemployment compensation, workers’ compensation or money recovered from pursuing your rights against the employer. Although nothing can eliminate the hurt of discrimination, money helps.
Back in the ’60s, Martin Luther King said his unforgettable words, “I have a dream.” Although we have a long way to go, much of his dream has become reality with new laws against discrimination. Ignoring your right to fight discrimination in the workplace makes his efforts meaningless. Understanding his dream and making it reality is the true cure for employment discrimination and the financial trauma and anger it causes.