Articles Posted in Employment Discrimination

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disability.jpgThe American Disabilities Act prohibits employers from discriminating against employees on the basis of their disability. To be considered disabled under the ADA, you must have “a physical or mental impairment that substantially limits one or more major life activities” be a person who has a record or history of such an impairment, or be a person that is perceived to have such an impairment.

Title I of the ADA requires employers who have 15 or more employees to provide equal opportunities to qualified individuals with disabilities. For example, under Title I employers are prohibited from discriminating in hiring, recruitment, training, pay, and other employment privileges. Title I also prevents questions that an employer can ask about a prospective employee’s disability before the job offer is made. It also requires that employers provide reasonable accommodation to the known qualified individual with disability unless it creates undue hardship for the employer.

How do you ask for a reasonable accommodation?

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teacherstudent.JPGThe Official Code of Georgia §§ 20-2-940, et seq., governs the demotion,

dismissal, and suspension of professional, certificated school district employees in Georgia. This law also governs the termination and suspension of school district employees who have a contract for a definite term. The law applies equally to all employees who have contracts with the school district, but does not apply to at-will employees without contracts.

Termination or suspension can only be based only on the eight grounds listed in

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Protecting your name and reputation means a lot, especially in the world of government jobs where employment files are kept and shared on mostly all employees. If a government employee’s employment file has something negative regarding her name and reputation, she may find it impossible to get another government job upon being fired. In this respect, the government-employment world is slightly different than the private-sector world where, for example, a person may hide past employers and reasons for dismissal.

So, in Georgia, what does an unclassified government employee do when he or she is fired and his or her reputation has been damaged during the termination process?

Classified employees can be terminated. But these type of employees generally have the right to appeal the reason(s) for their termination. That means that classified employees generally have privy to a more complete administrative process that allows them to fight more forcefully against their termination and thus protect their name and reputation. However, unclassified employees are, generally, not so fortunate.

Once an unclassified employee is terminated, the employee generally cannot appeal the decision. So what can you do, if you are terminated, and during the termination process things are said about you that damage your reputation and chances to get another government job? Unclassified employees may have an option that protects their name and reputation.

The option is called a “name clearing hearing.” The idea behind this type of hearing is that damage done to a government employee’s reputation qualifies as a “liberty interest.” Essentially that means that you “may” be entitled to procedural due process, a hearing regarding the matter that has affected your name and reputation.

There are several factors that a lawyer must examine to ensure that a client may seek this remedy. Of those factors, here are six (6): (1) A false statement must have been made; (2) that statement must have been of a “stigmatizing nature” and related to (3) the discharge of the government employee; (4) the statement must have been made public by (5) the government employer; and (6) the discharged employee must not have had a meaningful opportunity to clear his or her name. Although these are not all the factors that will determine whether you are entitled to a name clearing hearing, they represent a good starting point, for the analysis of your case.

Of the above-mentioned six (6) criteria, point six may prove to be the most difficult. For example, if the unclassified employee was given an opportunity to provide a statement/report in his or her defense, did she have a meaningful opportunity to clear her name? This question and others are best suited for an experienced attorney in this area.
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Age discrimination is a “hot” topic right now due to a recent Supreme Court case, which some members of Congress are trying to combat with proposed legislation. Neither the case or the proposed legislation changes some general points you should consider.

So what can you do if you’ve experienced age discrimination? One of the first responses to that question is, what type of age discrimination did you experience? That will affect which federal law applies to your case and importantly, which agency you should file your complaint with. For example, you may be protected by the Age Discrimination Act (“ADA”), which applies to person of all ages. However the ADA does not apply to employment situations. Age discrimination related to your employment may be protected by the Age Discrimination in Employment Act (“ADEA”) and only applies to people aged 40 and over. The Office of Civil Rights handles ADA complaints, while the Equal Opportunity Employment Commission handles ADEA complaint.

Be mindful that before an employee can sue his or her employer in court, after filing a complaint with the appropriate federal agency, you must wait for the agency to issue a “right to sue letter,” which will entitle you to sue, within a specified period of time, an employer in court. You can request a right to sue letter at anytime.

In court, if an employee has experienced anything less than age discrimination related to hiring and firing, courts have frequently found that he must prove that the discrimination she experienced was a “materially adverse employment action.” What is materially adverse is tricky. For example, merely being transferred to another department where there is a minor discrepancy in working conditions, work hours, and previous pay may not be enough. The facts of your case are vital.

In addition, after an employee complains formally or informally to their employer about feeling discriminated upon because of age, employees often experience retaliation. Employer retaliation comes in many forms: verbal abuse; threatening emails; exclusion; unjustified demotions; groundless accusations that affect an employees reputation; and unsubstantiated suspensions without pay and other disciplinary actions, amongst other things. Sometimes employer retaliation becomes so severe that an employee experiences what is known as “constructive discharge” from their job.

Simply, constructive discharge is an environment that would compel any reasonable person to resign or consider resigning. Proving constructive discharge is not so simple, however, and requires being able to obtain essential information related to the hostile climate in which you were working in. In today’s technological age, that information involves more than witness testimony. A good lawyer should understand electronic discovery, how to get the emails, text messages, and other electronically transmitted information that can more forcefully argue your case.
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