Discrimination Lawsuit Defense for Employers

Experienced Defense Counsel for Employment Discrimination Claims

Elizabeth K. Stepp
Discrimination Lawsuit Defense for Employers Team Lead
Partner & Yale Graduate

Employment discrimination claims can present substantial risks for employers. When accused of workplace discrimination, employers can face liability not only for compensatory damages, but also for punitive damages in some cases. Facing workplace discrimination claims can cause substantial reputational harm as well.

All of these factors make it critically important to engage an experienced employment attorney to defend your company when necessary. At Oberheiden P.C., we handle employment discrimination cases on behalf of employers of all sizes. If an employee has filed a discrimination complaint against your company, our attorneys can get to work immediately protecting your company by all means available.

Common Allegations in Employment Discrimination Cases

Workplace discrimination claims can take a variety of forms. Under Title VII of the Civil Rights Act of 1964 and other state and federal discrimination laws, employees can pursue claims when they experience a disparate impact based on their membership in a protected class or protected group. While protected classes and protected groups vary under different discrimination laws, these laws broadly prohibit employers from taking adverse actions that are directly related to an employee’s:

Age
Color, race, ethnicity, or national origin
Disability
Gender identity or gender expression
Marital status
Religious beliefs or practices
Pregnancy or expected pregnancy
Sex, sexual orientation, or sexual preference

As noted above, taking adverse action against an employee based on a protected characteristic under Title VII or other applicable federal or state law can expose employers to liability for compensatory damages (including emotional distress damages) and even punitive damages in some cases. If your company is facing any type of discrimination complaint, engaging experienced legal counsel will be the first step toward executing an effective defense.

Employees can pursue discrimination claims when their employers pursue adverse employment actions that are directly related to their protected characteristics. This includes, but is not limited to, adverse actions such as:

Refusal to hire, promote, or provide a pay raise
Refusal to approve a job transfer or remote work
Assignment to an unfavorable work site
Assignment to unfavorable job duties
Suspension or furlough
Termination of employment
Disparate treatment regarding working conditions or compensation
Unwarranted negative job performance reviews or accusations of poor performance

Sexual harassment (including subjecting an employee to a hostile work environment) is considered a form of employment discrimination as well. Federal and state discrimination laws entitle employees to pursue legal action in a wide range of circumstances—and, in all cases, avoiding unnecessary liability involves working closely with experienced legal counsel to dispute the employee’s claims and assert a valid defense (or valid defenses) based on the specific circumstances at hand.

Along with discrimination claims, we handle retaliation claims for employers as well. Employees who feel that they have been treated unfairly after filing a workplace discrimination complaint or reporting discrimination on behalf of a co-worker may choose to pursue retaliation claims under applicable federal or state law. Retaliation claims can also expose employers to substantial liability; and, here too, avoiding liability often involves showing that there is a legitimate non-discriminatory reason for the adverse action taken.

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Employer Defenses to Employment Discrimination Claims

While employees can assert discrimination claims on several grounds, there are also several employer defenses to these claims. With that said, employers won’t necessarily have defenses in all cases, and making informed and strategic decisions when faced with a workplace discrimination claim requires a clear and comprehensive understanding of the circumstances at hand. With this in mind, some examples of potential employer defenses to employment discrimination claims include:

No Applicable Protected Class – Different state and federal laws apply to different employers and employees. If an employee would fall within a law’s protected characteristics but the law does not apply based on the employer’s size, location, or other pertinent factors, this is a valid defense to liability.
No Discriminatory Treatment – Employment discrimination claims can broadly be based on discriminatory treatment or disparate impact. If an adverse employment action is intentionally and overtly discriminatory, then liability may be warranted. On the other hand, if an employee who is seeking to challenge an employment decision cannot prove discriminatory treatment, then liability may not be warranted.
No Disparate Impact – Even if an employer’s practices or policies are not intentionally and overtly discriminatory, they may still warrant liability based on disparate impact. If an employer’s policies or practices disproportionately affect employees in a protected class or protected group, this can give rise to liability under Title VII and other federal and state laws.
Legitimate Non–Discriminatory Reason – The fact that an employee falls within a protected class or protected group does not mean that the employee is immune from adverse employment action. If an employer has a legitimate non-discriminatory reason for taking adverse action, this can serve as an affirmative defense in court or before the U.S. Equal Employment Opportunity Commission (EEOC).
Failure to Provide Evidence of Discrimination – Employees pursuing discrimination cases based on discriminatory treatment and disparate impact have the burden of proof. If an employee fails to provide sufficient evidence of discrimination, an experienced employment attorney should be able to raise the employee’s burden of proof as a defense to liability.

Age discrimination, racial discrimination, national origin discrimination, sexual orientation discrimination, and other types of discrimination claims can all present substantial risks for employers. However, employers will often have strong defenses available. When facing a workplace discrimination lawsuit, the key is to identify these defenses as quickly as possible, and then to work closely with legal counsel to assert these defenses as necessary.

FAQs: Responding to a Discrimination Complaint From a Current or Former Employee

What Discrimination Laws Apply to Employers?

The discrimination laws that apply to employers depend on their size and where they have a physical presence, among other factors. Different laws also apply to public and private employers in some cases. Both state and federal laws may apply—including federal laws such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and Title VII of the Civil Rights Act of 1964.

When Can Employment Decisions Give Rise to Liability for Discrimination?

Employment decisions can give rise to liability for discrimination when they are based on one or more employees’ membership in a protected class or protected group. While poor performance and other issues can justify adverse employment actions (and while at-will employment laws allow employers to make employment decisions without any specific reason), making employment decisions based on an employee’s protected characteristics is generally prohibited.

Is Business Necessity a Defense in Employment Discrimination Cases?

Business necessity is a defense to employment discrimination liability in limited circumstances. Certain discrimination laws excuse employment practices that disproportionately affect employees with protected characteristics when there are no other reasonably viable alternatives. If your company is facing a discrimination complaint and you believe that your company’s action was justified based on a business necessity, you will want to discuss your company’s defense with an experienced employment attorney as soon as possible.

Is a Bona Fide Occupational Qualification a defense in Employment Discrimination Cases?

Making employment decisions based on bona fide occupational qualifications is generally a valid employer defense to employment discrimination liability. Employers are entitled to consider bona fide occupational qualifications when making hiring, compensation, job assignment, and termination decisions—even if these decisions have disproportionate effects on employees in protected groups. Considering bona fide qualifications in good faith is considered fair treatment; and, generally speaking, it should not expose employers to liability.

With that said, when facing employment discrimination complaints, employers must be able to demonstrate that they truly made their decisions based on bona fide occupational qualifications—and that reliance on these qualifications is not simply a pretext for discriminatory action. While relying on bona fide qualifications is among the most common defenses to discrimination complaints, asserting this defense effectively requires clear documentation.

What Should I Do if My Business is Facing a Discrimination Complaint?

If your business is facing a discrimination complaint, you should engage experienced legal counsel as soon as possible. Allegations of discriminatory actions, discriminatory intent (or discriminatory motive), and disparate impact can lead to serious reputational and financial harm. Keeping these allegations from being made public (if possible) is essential, and employers must be prepared to promptly investigate employees’ discrimination allegations so that they can formulate and execute sound defense strategies.

What you should not do if your business is facing a a disparate impact claim or any other type of discrimination complaint is retaliate. Retaliation claims are common in this scenario as well, and they can also present substantial risks. Employers must investigate their employees’ discrimination complaints in good faith, and then they must make informed and legally compliant decisions based on the specific facts and circumstances at hand.

Schedule a Free Consultation with an Experienced Employment Attorney at Oberheiden P.C.

At Oberheiden P.C., we provide experienced legal representation for employers facing all types of discrimination complaints from their current and former employees. If you would like to speak with an experienced employment attorney at our firm in confidence, give us a call at 888-680-1745 or tell us how we can help online today.