Looking for a top-notch employment lawyer who can answer your employment law questions?

Wondering if you have a good employment discrimination case?

Under federal law, a “good” employment discrimination case will have the following elements:

ADVERSE ACTION

First, prove an adverse action:

This means you will have to prove a significant change in your employment status.  Examples include a demotion, a termination, or changes to your pay, career prospects or work conditions that bring a significant negative altercation in your workplace

(Not included are your boss being insensitive, mean, rude, a jerk, having a terrible personality, being disrespectful or not liking the same political candidate as you.)

PROTECTED CLASS

Second, tie the adverse action to your protected class:  You got fired?  No one will argue that is not an adverse action.

When you get fired you lose your income, benefits, and sometimes your career prospects.  But can you tie the firing to your protected class? If you got fired and it was not fair, you may be out of luck.

But if you got fired and you can prove it was because of your disability, pregnancy status, disability, age, gender identity, national origin, bona fide complaints of discrimination etc. then you may have a good employment discrimination case.

(If you are twisting your facts to fit the narrative, you likely don’t have an employment discrimination case. The protected class should not be an afterthought in a good employment discrimination case, but the reason why you experienced the harm.)

DAMAGES

What are your damages?

If you can prove you experienced an adverse action, and you can tie that experience to your protected class or protected classes, the next step is identifying your damages.  Did you have to find a lower-paying job?  Is your house in foreclosure because you can’t pay your bills?  Did you have to start seeing a therapist to deal with the emotional harm?

Damages can be proven with or without a calculator.  In most employment discrimination cases, the largest actual damages you can calculate can be back wages.  This is how much pay you lost because of the discrimination.  You have a duty to mitigate your damages or improve your circumstances, that is you must make the best of your situation.  If you guess no one will ever hire you again but have no evidence of actually looking for a new job, your damages will be cut.  However, if you apply to multiple jobs and take a lower paying job just to have income flowing in, it will help prove that you tried to improve your circumstances.

COMPARATORS

Who had the same job title, job duties and supervisor as you?

If you had a one-of-a-kind job like a school principal, it will be more difficult to compare yourself to others.

If you were part of team and shared the same title, job duties and supervisor with others, you may be able to compare yourself to others.

Who was treated better than you?

Who was treated worse than you?

Who was treated the same as you?

EVIDENCE

If you want to settle or litigate your employment discrimination case, the burden is on YOU to prove what you’re saying is true.

Anyone can make an allegation, but can you prove that you experienced an adverse action because of your protected class or your complaints of discrimination?

It’s not enough to say “I just know it had to do with my race!  My boss does not like Black people.“.

It’s also not enough to say “This is a clear case of age discrimination” with nothing more.

How do you know?  How can you prove it?  Do you have a text message of your boss discussing how you deserve less pay based on your race?  Do you have a witness who overheard your boss call you a racial slur?  Did you boss send an email that said you are too old to take on new projects?

Many employees are going off of hunch and fail to identify real evidence to support their allegations.  That is many cannot prove what they’re saying is true.  If you can’t prove your case, it will quickly become a “he-said”, “she-said” it will be left up to an investigator, judge or jury to sort out who they believe, and oftentimes the employer is the one who is believed.

In most states, an employee can collect unemployment benefits only if it’s the employer’s fault you lost your job.  For example, if your company can’t afford to pay you anymore or doesn’t like how you perform your job, the unemployment office will likely determine you are eligible to collect benefits as long as you are able and available to start a new job.  Sometimes employers will try to limit your collection of unemployment benefits in a severance agreement by writing a clause that states “You agree not to collect unemployment benefits while you are receiving severance pay”.  Terms that limit your ability to collect unemployment benefits, even if you don’t think you need the benefits, should be challenged.  This is because it’s allowable to collect severance pay and unemployment benefits at the same time.

*In Illinois, you can collect severance pay and unemployment benefits simultaneously.   According to Section 2920.45, amounts paid or payable to the individual as severance pay shall not render the individual ineligible to receive benefits under Section 2920.5.  The nature and purpose of such payments, rather than their characterization, shall determine whether or not such payments are considered severance pay under this Section.

Illinois is an “at will” state, which means an Illinois employer can fire an employee for any reason, at any time. This is powerful as it means many bad actions by your boss, supervisor or human resources are not necessarily illegal.

In other words you must experience an illegal adverse action to take action. While every case is different, you may be surprised to find out it’s perfectly legal for the following to occur in an Illinois workplace:

• Sudden job termination with no advance warning or real explanation
• A job transfer or demotion after 10+ years of employment
• Ostracism by your co-workers
• Unpaid discretionary bonuses
• Personality conflicts
• A mediocre performance evaluation, not made available to other employers
• Refusing to keep your job open after more than 6 months of leave
• Denial of unemployment benefits for alleged “misconduct”

•  Proper Pay:  Standards for minimum wage, overtime pay, recordkeeping
• A Safe and Healthy Workplace
• Equal treatment in the workplace free from discrimination based on race, color, age, genetic information, sex, sexual orientation, pregnancy, marital status, arrest record, gender identity, religion, national origin, disability or status as a protected veteran.
• Join with co-workers, without a union, to improve wages and working conditions
• Be free from retaliation as punishment for engaging in protected activity
• Medical accommodations, including a medical leave
• Collect unemployment benefits when an employer cannot prove “misconduct” or you voluntarily leave your job for “good cause”
• Accommodations for pregnancy, breastfeeding and sick child rights
• More!

In Illinois, your employer must give you your personnel records IF you or your representative timely request them and you ask within a year of your separation

Under Illinois law, you are entitled to see your personnel records as long as you or your representative request them in a timely manner.  Our team has reviewed hundreds of employee, management and executive personnel files.  Our comprehensive review helps you recognize evidence of illegal actions to advance your case.

Here are some of the key rights under the Illinois Personnel Records Review Act or the “PRRA”:

1. Under the PRRA, an employer is obligated to allow an employee to review his or her file within seven working days after the request, or within 14 days if the employer can show that it needs additional time. 820 ILCS 40/2.
2. Section 2 of the PRRA states that employees shall be allowed “to inspect any personnel documents which are, have been or are intended to be used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action, except as provided in Section 10 [820 ILCS 40/10].” 820 ILCS 40/2.
3. If the employee disagrees with information in the personnel file, the PRRA provides the opportunity to file a written statement correcting the information included therein. at 40/6.