Articles Posted in Employment Discrimination

Douglasville, Georgia recently settled a federal lawsuit brought by an American Muslim woman named Lisa Valentine, who was jailed due to wearing a hijab, a Muslim headscarf while at the courthouse.

ACLU lawyer Azadeh Shahshahani stated: “Obviously the manner in which Ms. Valentine was treated was inexcusable and unconstitutional,” said Shahshahani, a lawyer with the American Civil Liberties Union of Georgia. “We hope that through this settlement, no other people will be subject to this same humiliating treatment Ms. Valentine had to suffer.”

As part of the settlement, Douglasville agreed to adopt new policies that allowed those who wear religious head coverings the option to be screened privately by a same gender person. Those who have religious headwear will no longer be forced to remove them and can wear them while in court. The Georgia Judicial Council made this nonbinding recommendation to all local courts after the Valentine incident was reported.

Valentine, is an African-American woman who converted from Christianity to Islam 15 years ago and was jailed back in 2008 after she wore a hijab while taking her nephew to Douglasville Traffic Court. When a security guard told Ms. Valentine to remove her hijab she refused, protested, and then tried to leave. But the Judge ordered her arrested and jailed for ten days due to contempt of court. She was later released that day.

A similar incident occurred this past May in Henry County, when a state judge refused to allow a Muslim man to wear his religious head cap, called a kufi, while in court. Fortunately, the judge reversed his decision.

The First Amendment of the United States Constitution guarantees us freedom of religion. The U.S. Commission on Civil Rights defined freedom from religious discrimination as being guaranteed by the Fourteenth Amendment to the U.S. Constitution–thus the state of Georgia and its respective state court in Douglas County must also comply with such laws.

Religious discrimination happens when someone is denied equal protection of the laws, including equal treatment in the administration of justice and access to the courts because of the exercise of their right to religious freedom. Thus, it would be a violation of one’s constitutional right to freedom of religion through the 14th amendment whenever a Muslim, Jewish, or Christian are banned from a courtroom because they are wearing religious clothing or headgear (think a nun’s habit or Jewish yarmukle).

The largest growing number of religious discrimination cases however involve the area of employment. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discharge any employee or to discriminate with respect to compensation or other terms of employment due to the employee’s religion, as well as race, color, sex, or national origin. 42 U.S.C.S. § 2000e-2(a)(1).

When a plaintiff uses circumstantial evidence to prove religious discrimination, the court applies the McDonnell Douglas burden-shifting approach. This approach requires a plaintiff the initial burden to establish a prima facie case showing: (1) she is a member of a protected class; (2) she was qualified for his job; (3) she was subjected to an adverse employment action; and (4) her employer treated similarly-situated employees outside her class more favorably or replaced him with someone outside her class. Mackmuhammad v. Cagle’s Inc., 379 Fed. Appx. 801 (11th Cir. Ga. 2010)

Once the plaintiff does this, the employer must prove a non-discriminatory basis for its actions and if those are given, then the plaintiff must show that those reasons are simply pretextual (false, a cover up to hide true motives and intentions.) Id.

It is illegal to harass someone because of their religion in an employment setting. The law also requires employers to reasonably accommodate an employees religious beliefs or practices unless doing so would create more than a minimal burden on the employer’s operation. An example of reasonable accommodation would be making sure an Orthodox Jew was not scheduled during Sabbath, or a Christian on Sunday morning worship hour.

If you believe you have been a victim of religious discrimination, you can file a charge with the EEOC but there are time limits and you must do it within 180 days of the discriminatory treatment.

It is also highly recommended to seek legal counsel.
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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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