Taylor Legal recently represented a client in an administrative appeal of a negative employment action imposed by the Howard County Public School System. Through a careful review of the client's personnel record and detailed meetings with the client to review the facts of the case, a considered, respectful argument was presented to the Superintendent's designee explaining why the employment action was unfair – it was retaliatory and a potential violation of the Americans with Disabilities Act (ADA). The action against the employee was rescinded.
Employment discrimination cases can be difficult to argue and even more difficult to win. The facts need to support that the employer's motivation was legally improper. Unfortunately, employers often can articulate non-discriminatory reasons for a negative employment action (poor review, suspension, termination, or other discipline), so it can be complicated to parse out and prove an illegal motivation. However, following in-depth discussion and review with a client, an attorney can hopefully get to the heart of the matter and establish a narrative that shows that an employer was acting in a harassing, retaliatory, and/or discriminatory manner.
The legal requirements for employment cases cannot be generalized because they depend in large part on the particular contractual rights of the employee. Some employer behaviors, however, are simply not permitted, for example racial, gender or age discrimination or violations of the ADA. When claiming discrimination, a current or former employee typically has the burden of proof and, as an initial matter, must make a basic showing that there is reason to believe that an illegal act has occurred. For example, the employee may be a member of a racial minority and was terminated or may be over the age of 50 and was not hired for a job he or she was qualified for. The employer can counter the employee's claims by establishing that the employer had a non-discriminatory reason for making the contested employment decision – the terminated employee was incompetent; the non-hired applicant was competing against individuals with more impressive credentials. The employee then has the opportunity to show that the employer's defense is pretextual, a rouse to cover a truly illegal motive – the terminated employee was consistently evaluated as superior; the person hired instead of the older applicant did not have more extensive credentials.
When dealing with harassment or retaliation, it may be critical to show a pattern of behavior or a suspect motive to undermine any argument that an employer may make about the validity of a negative action.
All cases are very fact-specific and very much depend on a detailed development of events and behaviors.
Typically, when a government agency is the employer, after an initial review by the supervisor of the employee or prospective employee, the next step is an appeal to an agency representative, for example the University President or the COO of a school system. If that appeal is unsuccessful, there may be additional levels within the agency to appeal to or an outside appeal to the State Office of Administrative Hearings or the Circuit Court may be appropriate. It depends on the specifics of the employer's contract and the agency's rules and regulations. EEOC or local watchdog agency involvement (like the Howard County Office for Human Rights) are also possible, sometimes necessary steps. When feasible, attorney assistance at the earliest stage is preferable, to ensure that no deadlines are missed and that the fullest record is created for appeal.