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  1. #1
    Join Date
    Sep 2016
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    Default Making a Discrimination Claim Based on Different Treatment

    An employer operates a business in which most of the employees are caucasian females, and most of them are over the age of forty. There are a few male workers, but they also tend to be both white and older.

    The business hired a younger man, in his twenties, who is also of Latino heritage. Since he was hired, he has been treated differently than other workers doing similar tasks, not because of race or gender but because he is seen as more physically capable. For certain tasks for which two female employees might be assigned, due to a physical component, he is expected to perform the work alone. He is also more productive than female employees performing the same tasks, again due to his relative physical strength and endurance, but he is not paid any more than them. When he asked for the same level of help with more difficult tasks as is given to his co-workers, he has been told by his supervisor that he doesn't need the help.

    The employee also had trouble getting permission to take breaks or go on lunch, because the supervisors didn't want to let him go on break at the same time as other employees. He might ask for a break and be told "no" because the supervisor essentially treated him like he was two workers, but a woman who asked to go on break immediately after he was declined permission would often be given permission.

    He has hired a lawyer, who has suggested that the employer pay a pretty significant sum as severance pay, such that he will resign without making a discrimination claim. Should the employer consider that offer, given that none of the employer's actions were actually based on race, or anything other than his physical capacity to perform work?

  2. #2
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    Sep 2005
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    Default Re: Making a Discrimination Claim Based on Different Treatment

    The employer should discuss the full facts with the employer's own lawyer.

    That said, this is a problematic scenario for the employer. The employee was not treated like other employees, even when he explicitly asked for equal treatment, and it is possible to infer a racial motivation for his supervisor's different treatment of him and his requests even if none existed. With a colorable case, the chance of a lawsuit go up and, should this go to court, the amount requested as severance may turn out to be considerably less than the cost of simply defending against a discrimination lawsuit, and much less than it would cost if that case ultimately settled or resulted in a loss in court.

    The employer should discuss with its lawyer how it might avoid getting itself into this type of situation in the future.

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