In South Carolina, the unfortunate reality for employees is that you can be fired for any reason at all, even without cause. Fairness is not the standard, at least not the written standard. However, there are exceptions to at-will employment, and the primary statutory exceptions are for race, sex, age, pregnancy, and disability discrimination. A South Carolina employment discrimination lawyer can spot the exceptions, and knows the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), Title VII of the 1964 Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA) and other federal statutes providing possible remedies for discrimination and retaliation. Horton Law Firm’s lead employment discrimination lawyer has practiced employment discrimination law in Greenville for 25 years.
TITLE VII OF THE CIVIL RIGHTS ACT: DISCRIMINATION AND RETALIATION
Title VII prevents employers from engaging in race discrimination, sex discrimination (including sexual harassment and hostile work environments), religious discrimination, and national origin discrimination. Under Title VII, employers cannot make decisions such as hiring, firing, promoting, or paying employees based on an employee’s race, color, religion, sex, or national origin, which would constitute unlawful discrimination. Further, employers cannot engage in retaliation against the employee if the employee engages in “protected activity” in regards to an act of discrimination. Title VII only applies to employers with 15 or more employees.
AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)
The ADEA prevents employers from engaging in employment discrimination on the basis of an employee’s age, and it applies to employees who are over the age of 40. Employers cannot make their decisions, like hiring, firing, or promoting, based on an employee’s age. The law is intended to protect employees who are perfectly capable of performing their duties competently, but who are being replaced or passed over in favor of younger, often less qualified, people. The ADEA only applies to employers with 20 or more employees. The ADEA also prohibits employers from retaliating against employees for filing a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC).
AMERICANS WITH DISABILITIES ACT (ADA)
The ADA is a federal law that protects individuals with disabilities in the workplace. It prohibits employers from discriminating against any qualified individuals on the basis of disability in regards to any term or condition of employment. The employer is prevented, under this law, from making decisions like refusing to hire, firing, or failing to promote employees BASED ON the employee’s disability. The ADA only applies to employers with 15 or more employees.
A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities. This definition is deliberately broad so as to include a wide range of disabilities. However, in order for the law to cover an employee, the employee must be able to perform the essential functions of the position, with or without a reasonable accommodation. Typically, a fact-intensive consultation with an experienced employment attorney will help determine whether a potential client’s condition falls into this definition of disability.
“Reasonable accommodations” are another unique feature of the ADA. If the employee requests that the employer provide a reasonable accommodation for the employee’s disability, then the employer should initiate an interactive process with the employee to determine what accommodation can be made for the employee. The employer’s failure to engage in this process or to provide a reasonable accommodation can result in legal liability against the employer.
PREGNANCY DISCRIMINATION ACT (PDA)
The PDA amended Title VII of the Civil Rights Act to expressly include discrimination on the basis of pregnancy as illegal sex discrimination under the Civil Rights Act. Essentially, the PDA requires employers to treat pregnant employees exactly the same as employees who are not pregnant but would need similar accommodations or treatment because of other, non-pregnancy-related reasons. This law also only applies to employers with 15 or more employees.
One common example of a violation of this law occurs when an employer forces a pregnant employee to go on leave before the employee truly needs to. Often this results in the employee running out of leave before she is able to return to work after the birth, and so the employer fires her. Also, if an employee takes leave because of pregnancy related symptom but then recovers, the employer cannot force the employee to remain on leave until the birth of the child.
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 (USERRA)
The employment and re-employment rights of military service members are protected by USERRA. This act guarantees leaves of absence for training, provides the right to reemployment after active duty, and prohibits discrimination based on an employee’s military status.
Under USERRA, an employer is prohibited from discriminating against an employee because of that employee’s service in the armed services. If an employee’s status as a member of the military or military obligations is the employer’s “motivating factor” in deciding whether to hire, fire, or promote that employee, then that employer has violated USERRA. In essence, if the employer’s reason for making an employment decision was based on the employee’s military service, then the employer has discriminated against the employee. Under the training and re-employment provisions of USERRA, your employer must allow you time off to complete your training and must allow you to resume your job after returning from active duty (if you reapply within the deadline).
FAMILY AND MEDICAL LEAVE ACT (FMLA)
While not strictly an employment discrimination law, the FMLA weaves in and out of several of the laws mentioned above and bears explanation here. The FMLA provides up to 12 weeks of leave to qualifying employees who are struggling with a serious health condition, which is defined as a condition that requires hospitalization or continuing treatment by a health care professional. The law, however, only applies to employers with 50 or more employees within a 75 miles radius of the employee’s workplace. The employee must also have been employed for at least one year prior to the need for leave and have worked at least 1,250 hours during that year. The leave can be taken consecutively or intermittently, depending on the recommendation of the employee’s doctor.
FMLA leave often comes in the context of a disability under the ADA or a pregnancy under the PDA. A reasonable accommodation under the ADA can come in the form of time off from work, and pregnant workers who qualify also may require leave under the FMLA both before and after pregnancy.
All of the federal laws mentioned above provide for an additional key protection against retaliation by the employer. That is, if an employee complains about discriminatory conduct that falls within one of the protected categories discussed above and the employer then terminates the employee, the employee likely has a claim that the employer retaliated against the employee because the employee’s protected actions in regards to an act of discrimination. Protected activity includes an employee opposing an unlawful discriminatory action by the employer, such as protesting the action, or an employee participating in the investigation or proceeding of a claim under Title VII, such as testifying or assisting in the matter.
TIME LIMITS ON FILING DISCRIMINATION LAWSUIT
As mentioned above, you should realize that most discrimination cases have short statutes of limitation — many as short as 300 days from the last act of discrimination. So, it is important not to sit on your rights. If you think you have been subjected to discriminatory discharge, discriminatory failure to hire or harassment, you should not wait.
Greenville employment discrimination attorneys Andy Arnold and Jeremy Summerlin and Horton Law Firm can advise you of your employment rights, the legal process and explain your legal options. If you have a case, we will fight for you. We take these cases personally. Contact us to setup an initial consultation.