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Best Ohio Employment Discrimination Attorney Answer: Is it against the law for my boss to treat me differently than my coworkers? What should I do if I am being discriminated against at work? How do I prove my discrimination claim?

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Even today, unlawful discrimination in the workplace remains a serious problem. However, many people are surprised to learn that just being treated unfairly, or even bullied, is not necessarily against the law. Instead, a victim of unfair treatment must show that the reason why they are being treated unfairly is illegal. Thus, to have claim for unlawful discrimination, an employee has to at least be able to arguably show that the unfair treatment was because of their race, gender, sex, pregnancy, national origin, disability, religion, military status, ancestry, or age. Likewise, an employee may have retaliation claims if they can show that they have been treated unfairly because they took leave under the Family Medical Leave Act, (“FMLA”), complained about not being paid minimum wage or overtime, opposed or reported discrimination or harassment, or if they reported criminal activity or unsafe conditions at work.

Sometimes our clients worry that because they don’t have any direct evidence that something illegal motivated the unfair treatment they experienced, they will have a hard time winning their case. The truth is, however, that direct evidence often doesn’t exist. Most employers aren’t stupid, and know better than to engage in overt behavior that will hand a future plaintiff an easy victory – although our employment discrimination lawyers are regularly surprised how often employers do overtly discriminate.

I am being discriminated at work because I’m Black. My boss discriminates against women. I am being treated unfairly at work because of my religion. Can I sue for race discrimination?

Due to this reality, circumstantial evidence is often critical in discrimination cases. And, since discrimination is really just another way of saying “treated differently,” evidence about how other employees were treated can become very powerful evidence. Such employees are generally called “comparators.”

Who makes a good comparator? A comparator can generally be any employee with similar job duties, or who is subject to the same rules and guidelines as the plaintiff, even if their respective job duties or job title differs somewhat.

A good comparator can transform a case. If, for example, the evidence shows a pattern of White employees being given laxer discipline than Black or African American employees, or if it shows that male employees got raises every year while female employees did not, a strong inference of discrimination can arise. Thus, if you know that you are being treated differently than another employee, and you think it even might be because of your being in one of the protected classes discussed above, you may have a strong discrimination case, even if there is no direct evidence that your protected status has ever been an issue.

The Federal District Court for the Eastern District of Michigan addressed this issue in Alberts v. Motion Indus., holding:

More recently, the Sixth Circuit has taken another look at the dimensions of the fourth element of the prima facie case in circumstantial-proof employment cases, suggesting that a plaintiff must show that she holds similar qualifications as the comparitor employee in order to be “similarly situated,” at least in a failure-to-promote case. See White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 241-42 (6th Cir. 2005). Of course the danger in looking too closely at the relative qualifications at that stage of the analysis is the tendency to conflate proof of the prima facie case with proof of the defendant’s legitimate, non-discriminatory reason for its action. See Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 584-85 (6th Cir. 2002); Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir. 2000). The White court seems to reconcile that concern by limiting the focus of proof at the prima facie stage to objective measures, reserving an employer’s subjective determinations to the second part (i.e., proof of a legitimate, non-discriminatory justification) of the analysis. See White, 429 F.3d at 242-43 & n.6.

The Court believes that the magistrate imposed too great a burden on the plaintiff to prove the fourth element of her a prima facie case. “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); see also Cline, 206 F.3d at 660 (same) (quoting Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). Here, the plaintiff and other inside sales staff at the Lansing and Saginaw offices of the defendant have the same supervisor, that is Gary Moore. Moore was “in charge of the branch, the sales activities, all activities that occur,” which included the Saginaw and Lansing offices. …. Reading the record in the light most favorable to the plaintiff, an inside sales representative is a standard position in the defendant’s offices and employees with such duties work at the Lansing office. As sales staff within the same corporate entity, with the same supervisor, selling the same product, any differences in the expectations and duties among inside sales personnel at the Lansing and Saginaw offices are minor for the purposes of the prima facie-stage consideration of the case. See Ercegovich, 154 F.3d at 353 (stating that “when an employer makes selective offers of transfer following a reduction in force or a reorganization, differences in the job activities previously performed by transferred and non-transferred employees do not automatically constitute a meaningful distinction that explains the employer’s differential treatment of the two employees”).

The magistrate judge suggested that the plaintiff failed to introduce evidence of the titles and duties of four employees at the Lansing office to show that she was similarly situated with them. However, the plaintiff does not have to show absolute similarity to the employees that received this reduction in hours. She only has to show that others similarly situated were treated better. The evidence in the record reflects that none of the inside sales members at the Lansing branch suffered the adverse action of a severe reduction in hours in order to enact the cutbacks ordered by Moore’s supervisor, because the reduction was divided equally among four others.

The defendant contends that the plaintiff’s performance sets her apart from her otherwise similar co-workers. See Johnson, 319 F.3d at 867 (holding that “Johnson has failed to identify any similarly-situated employees who were treated differently for exhibiting managerial problems comparable to his own”). At a time after the plaintiff’s hours were reduced, this contention may be supported by the record. However, the plaintiff’s performance does not categorically distinguish her from other inside sales personnel before the reduction in the plaintiff’s hours. Although Garcia noted deficiencies, the plaintiff received an evaluation on January 19, 2001, before the reduction, that rated her performance as generally satisfactory. The record contains evidence that her supervisors only received three complaints prior to the reduction. None of these complaints were serious enough for the supervisors to record them in writing or to provide the plaintiff with a written warning of poor performance. These circumstances do not distinguish Alberts materially from the three Lansing employees or suggest a difference in their objective qualifications.

The Court finds that the plaintiff established the fourth element of her prima facie case because she offered evidence that similarly-situated employees outside her protected class were treated more favorably because they were not called upon to bear as great a burden of the defendant’s economic cut-back as the plaintiff.

This case also importantly points out that you don’t have to suffer a wrongful termination in order to have an employment discrimination claim. Any adverse action in comparison to similarly situated employees outside your protected class may serve as the basis of an employment discrimination claim.

Because of the many subtleties involved in a discrimination or retaliation case, your best bet is not to wait, and to call the right attorney if your are being treated unfairly at work. Even if you are not sure whether the unfair treatment is because of something illegal, our discrimination attorneys and retaliation lawyers will help you figure your options with a free, over the phone consultation.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at (216) 291-4744. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

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