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Does Discrimination Still Exist? Of Course It Does

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By Donna Ballman

This piece by David Sirota in Salon struck a nerve with me. He makes the case that race discrimination still exists. Sad, but it's something that needs to be said over and over. I find the issue of whether any kind of discrimination still exists to be a continuing uphill battle when I represent employees in discrimination cases.

Truth be told, when I started handling employment discrimination matters 25 years ago, I figured I'd do it for a few years, then everyone would know the law and I'd have to find something else to do. Here I am, still handling discrimination cases. Instead of seeing them wane, I find that in some ways discrimination has gotten more blatant over the years.

Discrimination Exists

If you don't believe that discrimination exists, here are some facts that prove my point.

Race/national origin discrimination: As of July 2011, 13.9 Americans were unemployed. 6.3 million of them were unemployed over 27 weeks. While 8.3 percent of whites are unemployed, compare that to 15.9 percent of African Americans and 11.3 percent for Hispanics. The use of credit history to screen applicants, which is still a widespread practice, can have a disproportionate impact on minorities and women. While some states are making moves to limit discrimination against the unemployed and those with poor credit, we have a long way to go before these practices are eliminated.

The chance of an African American male born in 2001 of going to jail is 32%. Hispanic males have a 17% chance and white males have a 6% chance. With the extreme disparity in arrest and incarceration rates among the races, EEOC has acknowledged that using arrest and convictions to exclude people from employment may have a disparate impact on minorities. Yet most states still allow criminal records to be used to exclude otherwise qualified applicants, even if the crime had nothing to do with their ability or qualification to perform the particular job.

Sex discrimination: The wage gap between men and women still stands. Women earn about 77 cents for every dollar men earn. The numbers drop even lower for African American and Hispanic women. Bad attitudes about working mothers abound. Once women have three children or more, they are way less likely to make it back into the workplace. Judges who are supposed to apply the law on pregnancy discrimination describe these cases as "work-life balance" issues and toss them aside. No wonder women who expect they will be easily able to balance working and having kids are suffering from depression.

While there was an outcry about Jeremy Irons' comments to the effect that women don't mind being pawed at work, the sad fact that this attitude still persists in the public at large. I've seen way more blatant sexual harassment recently, and I think it's because harassers like to exploit women's fear of losing their jobs in bad economic times to their advantage. Sexual harassment is more about power than sex. A harasser is just like a rapist -- if they aren't stopped, their behavior will accelerate. So why is it getting even more difficult to bring and win sexual harassment cases in court?

Age discrimination: The people I see in my office to go over severance agreements tend, overwhelmingly, to be over 40. The recession is hitting boomers hard and fast. The EEOC reports that age discrimination complaints went from 19.6% of all charges filed in 1997 to 23.3% in 2010. My post on AOL Jobs, 9 Signs of Age Discrimination, had 239 comments, many of them with heartbreaking tales of jobs lost after years of dedicated service. It was emailed to friends and family members 1362 times - a sign that many of us know someone we think was an age discrimination victim.

Katherine Kores, District Director of the Memphis Division of EEOC, testified that she has noticed these trends in the age discrimination cases filed in her office:

• Denied entry level positions to older workers, claiming that older applicants were over-qualified (even when they had not previously worked in the field) or that the jobs were being saved for high school and college students;

• Failed to hire older workers because they assumed older applicants would not possess the requisite technological skills;

• Failed to hire older workers because they believed the older workers would not remain on the job for an extended period of time.

I see the same trends in my practice. We make assumptions about older workers that simply aren't true, and it's forcing them to gut their 410Ks, cash in their life insurance and sell or lose their homes. Their retirement safety net is gone.

How Can You Stand Up For Yourself?

Many people tell me, when I ask if they reported discrimination to Human Resources before they were fired, that they didn't want to "go there." Instead, they tip-toed around the issue and reported unfairness, favoritism, harassment or hostile environment. Then they wonder why they were retaliated against. The problem is, complaining about any of those things doesn't protect you from retaliation. Bullying isn't illegal in any state.

Harassment: If you think you're being singled out due to race, age, sex, religion, national origin, disability, genetic information, or any other protected status, and you haven't been fired, demoted, denied a job or promotion, or suspended without pay, the discrimination is considered harassment. You have to report it under the employer's harassment policy first and give them a chance to correct the situation before you can file with EEOC or sue. That's the Supreme Court's rule, not mine, so complain to them if you don't like it. (No, not really. They won't take your calls and the Secret Service frowns upon showing up and knocking on their doors.) Put your complaint in writing so HR can't deny it later. Call it "Formal Complaint of [Race, Age, Sex, etc.] Discrimination."

Retaliation: If you're retaliated against for making your discrimination complaint, then you're legally protected.

Termination: If you're handed a layoff or exit package, severance agreement or other document to sign when you're fired/let go/laid off, read it carefully. If you think you've been singled out due to your protected status, go talk to an employment lawyer in your state. You might have leverage to negotiate a better package. If you sign, you're probably giving up any discrimination claims you have.

Don't buy into the attitude that discrimination doesn't exist, that it's all in your head, that you shouldn't "go there." Discrimination is real. Don't be a victim. Stand up for yourself.

Donna Ballman is the award-winning author of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She's been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues is Screw You Guys, I'm Going Home. To find out more about Donna, visit her on Red Room.