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Zachary
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3926
Experience:  Contracts, Wrongful termination and discrimination
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i notified my employer that I felt discriminated against because

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i notified my employer that I felt discriminated against because of my age and gender about 6 months ago. The younger analysts were given better job assignment, better raises, promotions, opportunities and training.
They finally let me take some training that was previously denied after this complaint, but other than that have been retaliating. My boss has increased my workload (almost doubled), substantially more than any other analysts, and it's causing me to work until midnight most nights. Even than, I can't get it all done with every I dotted, which is being used against me. The other analysts don't have to work the hours and we are doing the same job.
How do I get back t oa reasonable workload in the near future? Dont' know how much more of this I can take
Submitted: 10 months ago.
Category: Employment Law
Expert:  Zachary replied 10 months ago.
Hi,

The original lawyer you requested is unavailable. My name is XXXXX XXXXX I will be assisting you with your legal question.

I think the best thing here is to start with an explanation of the law in this area and then discuss your case in particular. In Colorado, and throughout the United States, employment law heavily favors the employer in most situations. Unless the employee has a contract which provides that the employee may only be terminated for cause, the law will hold that the employee's right to work falls under the At Will Doctrine. The At Will Doctrine provides that an employer may terminate an employee for any reason whatsoever, even if it is a false reason. The only limitation on this is that an employer may not terminate or create a hostile work environment for an employee because of discrimination based on race, color, religion, sex, military status, national origin, disability, age, or ancestry of the employee.

In your case, you have identified that your employer is discriminating against you in its employment policies based on your gender and your age. I will say now, that unless you are over the age of 40, you are not protected by Age Discrimination laws (they are meant to protect older workers). Nevertheless, failing to promote or give job opportunities to a person because of their gender is discrimination which triggers protection under the law.

When discrimination takes place, your protection must be asserted by filing a claim for the violation with the EEOC. You have already talked to your boss and HR about this, and the situation seems to have actually gotten worse, culminating in your boss increasing your workload so much that it actually is impossible for you to continue working there. In other words, they are creating a situation which will constructively terminate you, by either setting you up to fail or forcing you to quit. This sort of manipulation is called a "pretext" under discrimination law, and does not give the employer a safe harbor (although they often think it does).

Thus, you need to go forward with filing the EEOC claim to best protect your interests. This will give you a better platform from which you can automatically claim retaliation (retaliation is presumed once you file an EEOC claim), and will give you an outside party which will advocate for you. After filing the claim, I would recommend telling your boss that you want to be returned to a workload that matches other analysts workload and that you filed this claim because you know what they are doing is discriminating against you because of your gender. In other words, you have to stand up and say enough is enough.

You can contact your nearest EEOC to start the claim procedures by finding the local office at www.eeoc.gov/field


Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am credited by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Kind regards,
Zachary
Customer: replied 10 months ago.


Thank you so much Zachary.


 


Wanted to also mention that the head of finance got up in an all hands meeting, and was asked the question - why do people over 40 not get any opportunities?


He replied that people over 40 should be thinking about retiring - and training the younger analysts - and that the younger analysts would be the ones who got the future opportunities.


This was in front of 150 people. - Does this sound like something they can say?


They have also announced a layoff in January 2014. I'm worried part of the retaliation will be to lay me off. Will filing the EEOC claim help protect me against the layoff?


THank you so much for your very through answer on the first question btw. I'll give you the best rating there is.


Thanks,


Kim

Expert:  Zachary replied 10 months ago.
Wow...that statement is on its face discriminatory and violates the Age Discrimination in Employment Act

The EEOC filing could potentially protect you from a mass layoff. I also think this sounds like you could be involved in a potential class action. If there is a mass layoff of people over 40, this would be called a "disparate impact" case.

I think you need to sit down with a local employment attorney as soon as possible to start working this case with you and give you some personal guidance on filing the EEOC claim. I'd recommend going ahead and setting up an appointment with the attorney before filing with the EEOC. Obviously, this would be something you need to move on quickly.

Thank you for your kind words.

-Zachary
Customer: replied 10 months ago.


Thank you Zachary - iactually am working with an attorney right now - but I think he is overloaded. I gave him my documentation a couple weeks ago and I haven't heard from him and he hasn't bee nreturning my phone calls.


He is supposed to be one of the best employment attorney's in Denver, but what is customary in length of time to get some feedback? I gave him approx. 100 pages of documentation.


one additional question - I know it's okay to lay off older workers if it's for budgetary reasons - and older people generally earn more so there is some truth to that - but at what point does it become discrimination? Seems like a real gray area to me....


 

Expert:  Zachary replied 10 months ago.
On your attorney - I'm not able to comment really on why it is taking so long. There may be other issues that he is working on and he has not got to your claim yet. It's really hard to tell. A 100 pages could take several hours to a few days to go through and analyze. But it seems to me that there needs to be some urgency on your case because you are suffering from the discrimination and being overworked.

There's nothing wrong with calling him and telling him that you are not happy with the fact that there is no movement on your case and that you need to hear back from him soon with some progress or you are going to take your case to someone else.

In regard to where it crosses the line is when the budget excuse is actually a pretext for age discrimination. It really depends on the individual circumstances of the case. But when you have a statement like the one you referenced made by an officer of the corporation, there is obviously a big problem and outright discrimination going on.

Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3926
Experience: Contracts, Wrongful termination and discrimination
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