You have the right to a workplace free of unlawful discrimination and harassment based on protected characteristics like race, national origin, sex, and religion. You also have legal recourse if those rights have been violated. However, the law doesn’t enforce itself; to hold your employer accountable, you need to document the unlawful behavior.

Make sure you have the evidence to protect your rights at work

The right documentation can make all the difference in a complicated employment discrimination case. Write down what happened, including the following:

What was said and who said it

If comments have been made at work related to your race, religion, gender, or another protected characteristic, who made those comments? Was it a supervisor or a coworker? Keep detailed records of those comments and each person’s rank in the corporate hierarchy.

When comments were made and actions were taken

Timing is critical in employment discrimination claims, for a few reasons. First, there are strict deadlines that apply to discrimination cases, so the timing of the discriminatory behavior or employment action can affect the amount of time you have to take legal action. Second, keeping records of time can help to establish patterns of behavior, which can be critical in your employment case.

Who, if anyone, witnessed the discriminatory or harassing behavior

Witnesses can play an important role in employment cases. They can verify what happened and provide powerful testimony in court if necessary. Make sure you write down the names and contact information of any witnesses so your lawyer can follow up with them later.

Whether you reported the behavior, formally or informally

Reporting discrimination or harassment puts your employer “on notice” that it’s happening under their watch. That’s why it’s important to keep a written record of any reports you made to a manager, human resources, or anyone else in charge in your workplace. You can make a report orally, but it’s best to put it in writing (a quick follow-up email will do) to ensure that you have a record of making the report.

Make sure you keep records outside your employer’s systems

It’s critical that you have your own records of the discriminatory or harassing behavior, outside your employer’s control. Keeping personal records ensures that you will have access to this information if your employer unexpectedly fires you or cuts off your access to their systems.

In addition to records of the discrimination or harassment itself, make sure you keep copies of your performance reviews, communications from supervisors, and any other information that speaks to your overall job performance. If you are fired, demoted, reassigned, or otherwise targeted, your employer will likely try to argue their decision was related to a non-discriminatory reason such as job performance. If you can verify that you met or exceeded expectations in your job, you will be in a better position.

Talk to an experienced employment lawyer today

Again, employment discrimination cases can be complex, and there are strict deadlines that must be followed. That’s why getting legal representation as soon as possible is so important. If you believe you have been illegally discriminated against or harassed at work, contact Nilges Draher LLC in Ohio for a free case evaluation. With offices in North Canton, Cleveland, and Columbus, our employment attorneys offer legal representation to workers nationwide.

“Was dealing with an issue and needed some advice, so I reached out to the firm. I got a callback within a half hour and was speaking to an attorney the very next day.” — James W.

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A recent lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) sheds a light on a contentious issue in 21^st century workplaces: remote work as an accommodation for disabled workers.

Under the federal Americans with Disabilities Act (ADA), employers with 15 or more employees must provide reasonable accommodations for qualifying disabled workers and cannot retaliate or discriminate against workers who need accommodations. Disability accommodations are a complex and evolving area of law, however, so it’s always important to get legal advice and understand your rights and options. Our disability discrimination attorneys can help.

What employers are and aren’t required to do to accommodate disabled workers

According to the EEOC, employers are required to provide reasonable accommodations to qualifying individuals with disabilities. A “qualifying” worker is someone who can perform the essential functions of the job, with or without a reasonable accommodation.

Note that under the ADA, employers are not required to provide the exact accommodation that an employee requires. For example, if an employee requests remote work as an accommodation, the employer might offer an alternative, such as allowing the employee to work in a different part of the office or a satellite location closer to home, depending on the nature of the disability and the reasons for the request. The key is that the employer must engage in an interactive process to find an accommodation that works for both parties.

In the EEOC lawsuit filed in September, the employee, a customer service representative, asked to work from home after suffering a stroke, both because she couldn’t drive and because the lights in her employer’s office exacerbated the headaches she suffered from as a result of the stroke. The employer denied the accommodation and eventually fired the employee for taking leave to attend medical appointments. According to the EEOC, the employer violated the employee’s rights under the ADA by denying the accommodation and by retaliating against her.

Key considerations in ADA cases

In disability accommodation claims, including remote work accommodation claims, a key question is what the “essential functions of the job” are and whether the employee can perform them with or without accommodations. These “essential functions” are based on the employee’s actual day-to-day job duties, not their written job description. For example, if the job description says, “must be able to lift 50 pounds,” but the actual job duties rarely, if ever, involve lifting heavy objects, then that is likely not an essential function of the job.

Another key question is whether a particular accommodation is “reasonable.” In addition to remote or hybrid work, reasonable accommodations might include modified work hours, extra breaks or leave (paid or unpaid), assistive technology, accessible parking, modified work locations (such as a first-floor office for an employee who can’t climb stairs), and assistive technology. However, the employer is not required to make an accommodation that would represent an “undue hardship;” that is, a significant difficulty or expense for the employer.

When there is a dispute over whether a particular accommodation is “reasonable,” one important consideration is whether the employer has already made the same accommodation for other employees (whether they are disabled or not). For example, if an employer has previously allowed hybrid or remote work for some workers, it’s much harder to argue that it would be an undue hardship to accommodate a disabled employee who requests remote work today.

If you are facing disability discrimination, we can help

Disabled workers face incredible challenges in the workplace, even though more accommodations are possible today than ever before. Too many employers don’t comply with the requirements of the ADA, and employees are left to suffer the consequences. If you’re in that situation, you have recourse. We can help.

The experienced employment law attorneys at Nilges Draher LLC have recovered over $50 million (and counting) for workers in Ohio and beyond. Give us a call or contact us online for a free, confidential case evaluation.

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The U.S. Department of Labor has unveiled a new tool designed to make hiring practices more accessible and fairer for people with disabilities. The AI & Inclusive Hiring Framework can guide employers in using artificial intelligence to help rather than hinder disabled job seekers.

Published by the Partnership on Employment & Accessible Technology (PEAT), the framework offers a blueprint for using AI hiring technology without unintentionally creating discriminatory barriers. This initiative was funded by the department’s Office of Disability Employment Policy.

What is the AI & Inclusive Hiring Framework?

The AI & Inclusive Hiring Framework provides employers with guidelines to ensure they use their AI tools inclusively. This will help prevent bias from slipping through the cracks. With the rise of AI in hiring, the risk of overlooking qualified applicants due to poorly designed algorithms is real.

PEAT’s framework was built on best practices from the National Institute of Standards and Technology’s (NIST) AI Risk Management Framework. The guidance helps employers see the benefits AI can bring to their hiring process while avoiding pitfalls that could harm applicants.

ODEP and PEAT developed the framework in partnership with NIST. It also factored in feedback from disability advocates, AI experts, industry leaders, and the public. The framework outlines 10 areas of focus for employers to follow. Each area focuses on practices, goals, and activities that can help businesses adopt inclusive hiring initiatives.

How will this framework promote inclusive hiring?

The AI & Inclusive Hiring Framework came to life following a PEAT Think Tank held in April 2023. The development process included listening sessions with experts and input from a national online public dialogue. ODEP, PEAT, NIST, and other partners worked together to create a tool that both employers and workers can use.

According to Assistant Secretary for Disability Employment Policy Taryn Williams, employers should use this framework to tap into the talent pool of people with disabilities.

“The Office of Disability Employment Policy works with many employers eager to hire people with disabilities and benefit from their talents,” Williams said. “These employers recognize that AI tools can improve recruitment and hiring but may also impact workplace culture and inclusion of disabled employees. The AI & Inclusive Hiring Framework published today charts a clear course for employers to navigate this transformation successfully.”

The framework doesn’t just focus on employers. It’s also there to empower job seekers, by helping them understand the benefits and challenges they may face when encountering AI-enabled hiring technologies.

How does this framework align with equity?

The framework aligns with the Biden-Harris administration’s efforts to ensure AI technology supports, rather than hinders, workers’ employment opportunities. In October 2022, the White House Office of Science and Technology Policy released the “Blueprint for an AI Bill of Rights.” This document laid out standards for more equitable and inclusive digital hiring. The AI & Inclusive Hiring Framework takes those principles and puts them into action.

This framework offers an important step forward for ensuring no qualified candidate is overlooked due to inaccessible or biased technology. It provides a practical, actionable guide for employers who are committed to making their hiring practices more equitable.

What are my legal options if I face discrimination from employers?

If you’ve faced discrimination during the hiring process in Ohio—whether because of a disability, race, gender, or any other protected status—you deserve justice. Discrimination isn’t just wrong; it’s illegal, and you have the right to stand up against it. Employers who misuse AI or other hiring practices to discriminate must be held accountable. The Ohio workplace discrimination lawyers at Nilges Draher LLC know how to take on companies that won’t admit wrongdoing. We have the case results to prove it, including:

• A $5.9 million settlement for workers misclassified as outside salespersons and denied overtime pay.
• $4 million settlement for a class of workers not compensated for all break times.
• $1.25 million settlement for oil field workers improperly paid on a day rate without overtime compensation.

Our legal team is here to listen, advocate, and fight for your rights. We operate on a contingency fee basis, meaning we don’t get paid unless you do, and your initial consultation is always free. Contact us today to schedule your case evaluation and take the first step toward protecting your rights.

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Non-disclosure agreements (NDAs) have become increasingly common in the U.S. workforce. According to the Harvard Business Review, over one-third of American employees are bound by an NDA, and those NDAs have become broader in terms of what they prohibit, too.

While some NDAs are necessary to serve legitimate business purposes, they are also a tool that employers exploit to weaken employees’ rights. And one of the most troubling uses of NDAs is to silence victims of harassment and discrimination in the workplace.

What are NDAs, and how are they changing?

A non-disclosure agreement is simply a legal contract that prohibits a party from sharing confidential information with others. NDAs are also known as confidentiality agreements or simply non-disclosures.

Traditionally, NDAs were mostly used to protect trade secrets and other intellectual property. They can serve a valuable purpose when businesses are discussing potential deals and need to share confidential information in order to reach an agreement. NDAs are also commonly signed as part of harassment and discrimination settlements.

However, NDAs are increasingly popping up in standard employment contracts upon hiring, and their scope increasingly goes well beyond trade secrets. Often, NDAs are broadly worded to prevent employees from speaking up about corporate culture and day-to-day operations at the company. Many employees have signed NDAs prohibiting them from talking about anything that would portray the employer in a negative light, a category that, of course, includes speaking up about harassment or discrimination.

NDAs are sometimes bundled with non-compete clauses, which carry their own host of issues for employees. And a sufficiently broad NDA can functionally serve as a non-compete by requiring employees not to take any knowledge gained at their current job, even general know-how, to their next job.

NDAs can make reporting harassment and other toxic workplace behaviors impossible

As Forbes reported, the widespread use of NDAs can make it incredibly difficult for victims of sexual harassment and other unlawful workplace behaviors to come forward. According to Forbes, minimum wage workers—those least likely to have access to trade secrets and confidential information—are actually more likely to have signed NDAs than other employees.

“Those are the people who legitimately can’t afford to come forward. Not only can they not afford legal representation, but they can’t risk being unemployed,” said Gretchen Carlson, cofounder of Lift Our Voices, a nonprofit organization that advocates for workers’ rights.

Federal legislation has made some progress to ease the burden NDAs place on harassment victims. Signed into law in 2022, the Speak Out Act makes NDAs unenforceable in cases of sexual harassment and assault. However, this law only applies to NDAs signed before the harassment occurred; NDAs signed afterward, such as those that are part of a settlement, remain enforceable. Furthermore, the Speak Out Act doesn’t cover discrimination or other types of unlawful harassment.

If you have been harassed at work and are under an NDA, get legal advice right away

Non-disclosure agreements can make it significantly more difficult for victims of harassment to come forward, but employees still have legal rights. That’s why it’s so important to talk to an attorney right away. A lawyer can listen to your story in a privileged, confidential setting and explain your legal rights and options. In addition to pursuing compensation for harassment, it may be possible to get the NDA invalidated if it is overbroad or otherwise legally suspect.

If you’ve been harassed at work, you don’t have to suffer in silence. Contact Nilges Draher LLC to schedule your free case evaluation. We can help.

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Last month, the federal Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination and harassment laws, released a guide to help construction employers address harassment on job sites.

The federal agency is paying close attention to a pervasive problem

EEOC guides such as this one serve two purposes. They provide information about anti-harassment best practices for both employers and employees, but they also put the industry on notice that the EEOC expects a higher standard moving forward. While the guide itself does not have the force law, it shows what the agency is looking for employers to do to address the ongoing problem of harassment on job sites, and that has implications beyond the construction industry.

What’s included in the EEOC guidance for construction companies

Highlights of the EEOC’s guidance include:

• Leadership: project owners, general contractors, crew leads, union stewards, and other leaders on construction sites need to clearly explain that harassment will not be tolerated on-site.
• Comprehensive policies: contractors and subcontractors need clear, comprehensive anti-harassment policies in place that describe who is covered, what conduct is prohibited, and what workers should do if they experience or witness harassment.
• Robust harassment complaint system: leaders must be responsive to harassment complaints submitted through both formal and informal channels, in the languages commonly used by construction workers.
• Effective harassment training: having rules and policies is of limited value if managers and employees don’t know about those policies. Training programs should be tailored to the work environment and reinforced by site owners and team leads.
• Stakeholder buy-in: the EEOC recommends that project owners and sponsors, including state and local governments, should consider requiring anti-harassment measures in contract bids.

What is unlawful harassment on construction sites?

Not all crude or even hostile behavior on a job site is illegal harassment. To be unlawful, harassment must meet two criteria. First, it must be severe and pervasive, to the point where a reasonable person would consider it intimidating, hostile, or abusive, and enduring the offensive conduct must become a condition of continued employment. Second, the harassment must be based on a legally protected characteristic, such as race, gender, religion, national origin, age (if over 40), disability, or genetic information.

Unfortunately, the construction industry has developed a reputation for some particularly egregious incidents of harassment. In 2020, following the killing of George Floyd, dozens of nooses appeared on construction sites across the country, according to Construction Dive. Other examples of illegal harassment include sustained and severe taunting, threats, and vandalizing toolboxes or personal property.

It’s also illegal for construction employers to retaliate against workers for raising complaints of discrimination or harassment. Examples of retaliation include cutting hours or transferring the worker to a less desirable site.

What to do if you’ve been harassed on a construction site

You need to take a few steps to protect your rights as a victim of harassment on a construction site. First, document everything. Write down what happened, when, where, and who, if anyone, witnessed it. Then, follow your employer’s procedure for reporting harassment if they have one. If not, tell your crew leader, foreman, or someone else in charge on site.

It’s also important to get experienced legal advice as soon as possible if you’re dealing with unlawful harassment. Talking to a lawyer isn’t a commitment to file a lawsuit or a formal complaint; it’s an opportunity to tell your story and get answers about what you can do next. Give us a call or contact us online for a free case evaluation with Nilges Draher LLC. We can help.

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In Ohio and across the United States, wage theft is a multi-billion-dollar issue. According to the Economic Policy Institute, wage law violations may cost employees up to $50 billion a year – but the actual number is incredibly hard to pin down because so many cases of wage theft go unreported and uninvestigated.

If your employer is violating the wage and hour laws, we can help

The only way to change that is for more workers to know their rights and speak up when their employers violate the law. Here’s what you need to know about spotting wage theft and how an experienced wage law attorney can help you take action if you are a victim.

By law, you should be paid for all hours worked

Under the federal Fair Labor Standards Act (FLSA) as well as state wage and hour laws, employees have certain rights. You have the right to be paid for all hours worked, including time spent traveling as part of your job, putting on and taking off equipment needed to protect the products you make, breaks of less than 30 minutes, and all other work hours. You also must be paid overtime (time and a half) for all hours worked in excess of 40 in a workweek, unless you meet the very specific criteria to be exempt from overtime. And your employer has to pay at least the legal minimum wage – and can’t make certain deductions that take you below that amount.

It seems simple enough, but employers have many ways to pay workers less than they are owed, sometimes much less. Among the top forms of wage theft include:

• Not paying for travel time that is part of the job. Your regular home-to-work commute is generally not considered work time, but additional travel as part of your work duties generally is.
• Making employees clock out for short rest breaks, or interrupting unpaid breaks. By law, an unpaid break must be at least 30 uninterrupted minutes during which you are relieved of all work duties. If your employer makes you clock out for breaks of 20 minutes or less, or if they interrupt your unpaid break with work duties, they are committing wage theft.
• Misclassifying employees as exempt to avoid paying overtime.
• Misclassifying employees as independent contractors to avoid wage and hour laws (and other employment laws).
• Paying the tipped minimum wage for non-tipped work.
• Engaging in pay-to-shift policies – by law, the employee must be paid for their actual hours worked, not necessarily their scheduled shift.

How to spot wage theft in action

There are a number of steps you can take to catch your employer violating wage and hour laws. Take the following steps to protect your legal rights:

• Keep track of your own hours worked and compare your records to each paycheck. Discrepancies may indicate that your employer is deliberately under-counting your hours worked.
• Keep track of your breaks, too. If your employer makes you clock out or deducts a break from your pay, then you should get 30 uninterrupted minutes.
• If your employer calls you a “manager” or “supervisor” and says you don’t get overtime, take a close look at your actual job duties. Do you spend most of your time managing other employees, or engaging in ordinary work tasks? You may be misclassified.
• Look closely at your paycheck to ensure you are actually being paid at the correct rate (including time and a half for overtime). Carefully scrutinize any deductions, too, especially if they take you below minimum wage.
• If something seems off, remember that you have the right to talk to your coworkers about wages (as long as you are a non-management employee).

Contact our wage and hour attorneys today

If you suspect you are a victim of wage theft, document everything. Then, contact an experienced wage and hour attorney at Nilges Draher LLC. Our legal team has extensive experience and a winning track record in wage theft cases. In one case, we recovered $5.9 million for a class of workers who were misclassified as exempt; in another, we recovered $4.9 million for a class of workers who were not paid for travel time.

The sooner you get us on your side, the more effectively we will be able to protect your rights. Give us a call or contact us online today for a free case evaluation. We can help.

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The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on workplace harassment for the first time in 25 years following a Supreme Court ruling that anti-bias laws protect LGBTQ workers.

The guidance notes that refusing to use transgender workers’ preferred pronouns and denying them access to bathrooms for their gender identity is a form of unlawful harassment.

Additionally, the EEOC says that discrimination against employees for decisions related to abortion or contraception is also considered sex discrimination.

Guidance protects LGBTQ and pregnant workers, expands employee rights

It’s not legally binding, but the guidance outlines how the EEOC will enforce anti-bias laws in the future. The guidance can also be referenced in legal proceedings.

“Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” EEOC Chair Charlotte A. Burrows said in a statement. “The guidance incorporates public input from stakeholders across the country, is aligned with our Strategic Enforcement Plan, and will help ensure that individuals understand their workplace rights and responsibilities.”

How will the EEOC’s new harassment guidelines affect workers?

The driving force behind these new guidelines was largely shaped by the landmark Supreme Court decision in Bostock v. Clayton County in 2020. In this ruling, SCOTUS affirmed that harassment of LGBTQ employees constitutes a violation of Title VII civil rights, effectively recognizing sexual orientation and gender identity discrimination as forms of sex discrimination. Furthermore, the EEOC’s guidelines extend the scope of sexual harassment to include issues related to pregnancy.

Here are key highlights from the new federal workplace harassment guidelines:

• Expanded protection for LGBTQ+ workers. Concrete examples of workplace LGBTQ harassment now explicitly include intentionally misgendering someone, not using an individual’s preferred pronouns, denial of access to gender-appropriate facilities, and harassment based on non-binary or non-conforming gender presentation.
• Pregnancy-related harassment. The EEOC more clearly states that harassment and discrimination related to pregnancy, childbirth, lactation, contraceptive choices, reproductive medical conditions, and abortion decisions are civil rights violations.
• Clarifies the scope of religious expression. While employers must accommodate their employees’ sincerely held religious beliefs, they must also protect their employees from religiously motivated harassment. Employers are not required to accommodate religious expressions that contribute to a hostile work environment and should take action to correct such situations.
• Recognizes virtual harassment. As we noted, EEOC workplace harassment guidelines had not been comprehensively updated in about 25 years, so the need to recognize technology’s role in workplace harassment was long overdue. The new guidelines note that, especially with the surge in work-from-home and virtual meetings, harassment via virtual communication like email, video conferencing, instant messaging, etc., exists and can rise to the level of a civil rights violation.

Is workplace harassment violating your rights?

The new guidelines expand protection for many employees and further clarify what it means to work in a safe environment free from discrimination. However, not all instances of harassment rise to the level of a civil rights violation. If you are the victim of workplace harassment, contact an experienced employment law attorney for a free case evaluation.

Having a knowledgeable lawyer familiar with state and federal laws regarding workplace harassment can significantly impact your case. At Nilges Draher LLC in Ohio, our experienced worker rights attorneys are well-versed in these laws and can ensure you understand your legal options. We advocate for you with your employer, the EEOC, and other relevant agencies. Contact us for a free case evaluation. We serve clients in Ohio and nationwide.

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Federal lawmakers are seeking to repeal rule protecting workers

As we’ve previously covered, the U.S. Department of Labor has been seeking for years to reform the rules governing misclassification of employees as independent contractors. That rule went into effect last month, and federal lawmakers immediately fired back.

On March 21, the House Education and Workforce Committee voted 21-13 to approve a resolution that would overturn the new DOL rule. This resolution is now before the full House for consideration, although as Safety + Health reported, it is highly unlikely to pass the Senate.

For the time being, then, the Department of Labor rule has the force of law, which has significant implications for workers who may have been misclassified. However, the law in this area is constantly changing, and it’s important to have an advocate who knows the lay of the land.

What the DOL rule means for workers

The Department of Labor rule, which went into effect on March 11, guides the agency’s Wage and Hour Division in its determinations of whether a worker is misclassified as an independent contractor for purposes of the Fair Labor Standards Act. Factors that the Wage and Hour Division can consider under this rule include:

• Whether a worker has the opportunity for profit or loss. Independent contractors are in business for themselves and should have the opportunity to profit from their work.
• A worker’s financial stake and the nature of any resources they’ve invested in the job. Independent contractors typically obtain and use their own tools and resources.
• The permanence of the employer-worker relationship. Independent contractors are usually hired for a project or fixed term, whereas employer-employee relationships are usually permanent or indefinite.
• The amount of control an employer exerts over a worker. Independent contractors should be meaningfully “independent” in how they schedule and approach their work.
• How essential the worker is to the business. Workers who perform essential, core business functions are more likely to be classified as employees instead of independent contractors.

According to the Department of Labor, these factors are more consistent with the ways federal judges are already applying the law, as well as the text and purpose of the Fair Labor Standards Act. Critics have argued that the new rule limits workers’ flexibility and ability to control their own work.

How misclassification can hurt workers

Workers who are classified as independent contractors lose important protections under the Fair Labor Standards Act and other employment laws. In particular, independent contractors are not protected by minimum wage laws. They are not eligible for overtime pay or for pay for certain types of breaks and travel time. Independent contractors also miss out on benefits such as health insurance and workers’ compensation.

In theory, this is the tradeoff independent contractors make in exchange for greater flexibility and autonomy over their work. However, when workers are misclassified, they get the worst of both worlds: the employer still exercises control over their work, but they don’t get the wage and hour protections and other benefits due to employees.

The cost for misclassified workers can be substantial. A 2022 Economic Policy Institute analysis of 11 commonly misclassified jobs found significant differences in pay between employees and contractors. For instance, the EPI found that construction workers misclassified as independent contractors would lose out on $16,729 per year in salary and benefits compared to employees, while home health aides would lose an average of $9,529 per year in income and job benefits due to misclassification.

Misclassification also has a huge impact on the broader economy. Employers that misclassify workers can cut their payrolls substantially, reducing their labor costs and gaining an unfair competitive advantage over companies that play by the rules. This dynamic drives down wages for everyone, not just misclassified workers.

If you think you have been misclassified, we can help

Being misclassified as an independent contractor can have a massive effect on your income and your rights as an employee. If you get a 1099 instead of a W-2, but your employer still controls your work and doesn’t treat you as meaningfully independent, then you may have a case for violations of the wage and hour laws. Our attorneys have extensive experience getting real results for misclassified workers. Contact Nilges Draher LLC today for a free case evaluation. We can help.

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The American workforce is getting older, and unfortunately, that hasn’t brought about the end of age discrimination in employment.

AARP survey reveals an alarming trend

According to a series of surveys conducted by AARP, about two-thirds of adults over 50 believe older workers face discrimination in the workplace. And that belief is well-founded: according to the Society for Human Resource Management (SHRM), over one-fourth of workers over age 50 have been the target of age-related remarks at work, and nearly one-fifth of HR professionals have received reports of perceived ageism in the workplace.

“Ageism is really one of the last acceptable ‘isms’ that society tolerates,” said Heather Tinsley-Fix, a senior adviser at AARP, per USA Today. That said, the law does not tolerate age discrimination in the workplace, but the law isn’t self-executing; employees need to know their rights and take action to protect them.

How age discrimination plays out at work

Most employers don’t explicitly discriminate on the basis of age. Rather, age discrimination is usually subtle. Some examples of potential age discrimination include:

• Advertising positions using proxies for age, such as “recent graduates preferred” or “digital natives wanted.”
• Asking age-related questions in job interviews, such as “How long have you been in the workforce?” or “When did you graduate from high school?”
• Denying training or professional development opportunities to older workers because “they’re close to retirement anyway.”
• Laying off older employees, often because they are higher earners.
• Using age as a factor when awarding promotions, raises, and prestigious projects.
• Making age-related comments and remarks at work.

Regardless of whether there is intent to discriminate against older workers, employers are responsible for ensuring their work environment is free of unlawful discrimination. That means actively reviewing policies and examining the effects of management decisions to ensure older workers get equal treatment. It also means promptly shutting down any age-related harassment or other unlawful conduct.

Is age discrimination against the law?

The federal Age Discrimination in Employment Act, which applies to all employers with at least 20 employees, prohibits discrimination in employment against anyone over age 40. Many states, including Ohio, also have laws that contain a similar prohibition on age discrimination.

Age discrimination is taking an adverse employment action, such as firing an employee, passing them over for a promotion, reducing their pay, or reassigning them to a less desirable shift on the basis of age. To prove illegal age discrimination, you must show that:

• You were over 40 when the alleged discrimination occurred,
• You met your employer’s legitimate job performance expectations,
• You suffered an adverse employment action, and
• You would not have suffered the adverse employment action if you were under 40.

Your employer can make counterarguments, including arguing that they had another valid (non-age-related) reason for the adverse employment action. At that point, your attorney needs to argue that the offered reason was less likely than age discrimination, or simply that it’s untrue.

Talk to an experienced employment law attorney today

Again, age discrimination is against the law in most Ohio workplaces. However, it frequently goes unreported and unaddressed. Coming forward to say you were discriminated against is a big step, but it’s necessary to protect your legal rights. We can help.

If you are over 40 and believe you have been discriminated against or harassed because of your age, we can protect your rights under federal and state law. Give us a call or contact us online for a free case evaluation with Nilges Draher LLC.

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If your civil rights have been violated, you may have recourse.

Racial discrimination in hiring is a persistent problem that affects the careers and lives of people of color in Ohio and nationwide. Federal law prohibits employers from taking race into account in hiring decisions, but racial discrimination is often subtle and goes undetected.

Unfortunately, the situation is bad enough to force some employees to find workarounds. According to one recent survey, nearly 20% of American workers have changed their names on job applications because of concerns about discrimination, and nearly half of those have changed their name to appear “less ethnic.” The same survey found that over one-third of workers have heard potentially discriminatory questions in job interviews.

Taking race into account in hiring is unlawful, and if you’ve been on the receiving end, you do have recourse. However, proving racial discrimination in hiring is difficult. Here’s what you need to know.

The elements of racial discrimination in the hiring process

An unlawful discrimination claim has two elements. First, the victim must be a victim of a protected class, and second, they must suffer an adverse employment action because of their protected status. In the hiring process, examples of adverse employment actions include:

• Not offering someone a job because of their race.
• Offering a lesser job title, or lower wages or benefits, on the basis of race.

Racial discrimination need not be intentional in order to be unlawful. If an employer deliberately and consciously takes race into account in hiring decisions, that is certainly illegal discrimination. But more subtle policies can also result in an illegal disparate impact on applicants because of their race. For example, screening for “culture fits” can result in hiring mostly people who are the same race as most current employees.

What it takes to prove racial discrimination in hiring

In some cases, it’s possible to prove racial discrimination via direct evidence. Very occasionally, there is a “smoking gun,” such as a note from a decision-maker that explicitly mentions race as part of their decision.

More often, however, evidence of racial discrimination is somewhat more subtle. For instance, interview questions like “where are you from?” and “no, where are you really from?” may indicate racial bias on the part of an interviewer.

Alternatively, it’s sometimes possible to prove racial discrimination via evidence of a “disparate impact” on individuals of a certain race. Disparate impacts exist in all aspects of the hiring process, including pre-employment assessments, job advertising, and job interviews.

Federal guidelines use the “four-fifths rule:” in general, if a selection process produces a selection rate for a protected group that is less than 80% of the selection rate for the most frequently selected group, then that is most likely an unlawful disparate impact.

For instance, if a particular employer selects Black applicants at only 75% the rate at which they hire White applicants, that is likely an unlawful disparate impact.

Talk to an experienced racial discrimination attorney about your rights

Again, racial discrimination in employment can be difficult to prove. Employers have a great deal of flexibility and discretion in the hiring process, but they cannot break the law. If you have reason to believe you are a victim of discrimination in hiring, talk to an experienced attorney about your rights and options. Contact Nilges Draher LLC today for a free case evaluation.

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