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Discrimination and Retaliation

Perera Barnhart has extensive experience representing both employers and employees in discrimination/harassment and retaliation matters. For many individuals, the workplace becomes a second home. Co-workers become a second family. More time is often spent at work than at home. As a result, we consider it critically important to establish and preserve a workplace environment free of discrimination/harassment and retaliation.

At the Perera Law GroupPerera Barnhart, we do not accept every case. We are not that kind of firm. We do not have a “volume based” practice. Our cases are carefully screened to ensure that there are viable claims or defenses. We do not needlessly thrust individuals into litigation. Sometimes, litigation can be counterproductive. Yet, when we do accept a case, our clients can expect personal attention and a zealous advocate. This is because we consider it a great privilege, honor, and responsibility to handle some of the most sensitive and personal issues an individual or organization can face. Below are some answers to commonly asked questions.

A. What Are My Financial Responsibilities In Cases Involving Discrimination/Harassment and Retaliation.

If the Firm believes you have a case for discrimination/harassment and retaliation, we accept such cases on a contingency basis.  This means that no payment is due from you to the Firm unless we successfully recover on your behalf, either through a judgment or settlement.  As a Firm, we understand that most employees are not in a position to afford and sustain the costs of expensive litigation.  If it becomes a battle of finances, employers would have an unfair advantage in litigation.  In order to level the playing field, the Firm would not seek payment of attorney’s fees from you unless and until we recover on your behalf.

When representing employers, the Firm typically handles such representation on an hourly basis.

B. What Is The Process For Brining A Lawsuit Discrimination/Harassment and Retaliation.

Under most discrimination/harassment and retaliation cases, individuals may not go directly to court.  Before doing so, employees must “exhaust administrative remedies.”  This just means that there are certain steps that need to be followed before going to court.

For example, in most cases, an employee is required to file a Charge of Discrimination with a governmental body, such as the Equal Employment Opportunity Commission (EEOC) of the Florida Commission on Human Rights (FCHR).  The governmental body must investigate the charge and issued a determination.  It is after the determination is made by the EEOC or the FCHR that a lawsuit may be filed.

If this process seems a bit complicated, don’t worry.  If we accept your case, we will walk you through the entire process.

C. What Can I Recover If My Claim Of Discrimination/Harassment or Retaliation Is Successful?

The remedies you may be entitled to if a judgment is obtained in your favor varies depending on the law(s) that apply in your situation.  The remedies available through labor and employment laws include back pay (payment you would have received if you kept working for the employer), front pay, compensatory damages, liquidated damages, and/or punitive damages.

Compensatory and punitive damages may be awarded in cases involving intentional discrimination.  Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life).  Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.

In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, victims cannot recover either compensatory or punitive damages, but may be entitled to “liquidated damages.”

Liquidated damages may be awarded to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded the victim.

Please note that not all damages listed above are necessarily recoverable.  We would need to be provided with the actual facts of your situation to assess what remedies may be available to you.

 

SUMMARY OF RELEVANT LAWS      

There is a myriad of federal, state, and local laws that must be navigated when address issue of discrimination/harassment and retaliation in the workplace.  As a general manner, employers are generally prohibited from taking adverse employment actions against an employee (such as termination, suspension without pay, demotion, etc.) because of an employee’s protected class, such as his/her age, religion, sex, color, national origin, disability, etc. Below are some of the relevant laws.

A. Title VII of the Civil Rights Act of 1964

Title VII is a federal law that makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Title VII requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

B. The Pregnancy Discrimination Act

The Pregnancy Discrimination Act amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

C. The Florida Civil Rights Act of 1992 (FCRA)

The FCRA is a Florida law that makes it illegal to discriminate against someone on the basis of race, color, religion, sex, pregnancy, national origin, age, handicap or marital status.  The law also makes it illegal to retaliate against a person that has elected to protect their rights under the FCRA.

D. The Equal Pay Act of 1963

The Equal Pay Act is a federal law that makes it illegal to pay different wages to men and women who perform equal work in the same workplace. The EPA also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

E. The Age Discrimination in Employment Act of 1967 (ADEA)

The ADEA is a federal law that protects people who are 40 or older from discrimination because of age. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

F. American with Disabilities Act of 1990 (ADA)

The ADA is a federal law that makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.

G. Family and Medical Leave Act (FMLA)

The FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • for the birth and care of the newborn child of an employee;
  • for placement with the employee of a child for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

Employers are generally prohibited from retaliating against an employee because he/she has sought to exercise his/her rights under the FMLA.

H. The Rehabilitation Act of 1973

The Rehabilitation Act is a federal law that makes it illegal to discriminate against a qualified person with a disability in the federal government. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Employers must reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.

I. The Genetic Information Nondiscrimination Act of 2008 (GINA)

GINA is a federal law that makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members (i.e. an individual’s family medical history). The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

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