Tuesday, December 7, 2010

Proving Employment Discrimination - by Richard Peres

This was published December 7, 2010, in Today's Zaman, in anticipation of a new law in Turkey prohibiting discrimination law,

How do you prove employment discrimination?
The challenge of a new law


Richard Peres*

I welcome the report that the Justice and Development Party (AK Party) government will soon create an Equality and Anti-Discrimination Board, subject to Parliament’s approval.

The new board is intended to “make sure that all people are treated equally regardless of their race, ethnicity, religion, gender, sexual orientation and political choices.” (Today’s Zaman, Dec. 1, 2010) It is a bold and noble first step in the recognition of a problem that may be obvious to many, but which many employers would rather not discuss. The most recent Turkish Economic and Social Studies Foundation (TESEV) study on the treatment of headscarved women in employment, Turkey’s very low employment rate for women and a myriad of other studies, surveys, and anecdotal evidence all point to the need for a solution. Moreover, there is a pervasive practice of discrimination against those who are perceived as minorities, the powerless and the ones who are different in terms of their beliefs and lifestyles from the mainstream.

One of the first issues that investigators and the courts will need to address is how discrimination is proved. The answer is tricky. Discrimination is not something that people will readily admit. At least that has been the American experience after more than 50 years of investigating millions of complaints and deciding thousands of cases in state and federal courts. The fact that discrimination is often subtle and by nature hidden has directly affected the development of a judicial approach to proving your case in court in America. How this works might surprise you! Why? Admissions of guilt are not expected and circumstantial evidence is admissible.

Burden of proof

The first issue addressed by the US courts was, who has to prove what? In other words, who has the burden of proof? The courts agreed that the plaintiff does not have to prove intent to discriminate on the part of an employer. The initial burden on the plaintiff is the need to prove that initially – “prima facie” (meaning “first face” in Latin) – discrimination occurred. Then the burden shifts to the employer to provide a valid or “bona fide” reason for what occurred.

For example, let’s assume that a headscarved woman, named Esra, sends in her resume to an employer in response to a job posting. The job requires a college degree and two years of sales experience, which the woman has. Esra receives an initial screening interview phone call by the employer, which she passes. The employer sounds positive and a personal interview is then scheduled.

However, when Esra shows up for the scheduled personal interview, she is shown a different attitude by the employer. She is asked only a few perfunctory questions and is told that the employer still has many applicants to interview and that she will be contacted for any job offers. Suspicious, Esra asks the interviewer if her wearing a headscarf is a problem. The employer’s response is, “Of course not.” Esra waits for several weeks and is eventually told that someone else was hired for the position. She finds out through a male friend who works at the company that the person hired is a man named Burak.

Has Esra made a “prima facie” case of discrimination against the employer?

The answer is yes.

The reasons for this are:

1. She applied for an available position.

2. She met the initial qualification standards

3. The employer’s attitude appeared to change when he saw Esra.

4. Esra is protected by the anti-discrimination law because she is a woman and she wears a headscarf. She is basing her claim on her gender and religious beliefs, two areas covered by the law.

5. A person not of her category (protected class) was given the position. The key point here is the existence of a special category of persons named and formalized in law as “protected class.” If Esra does not fall into this category, there is nothing she can do.

The burden shifts

This is all circumstantial evidence, but it is enough to shift the burden of proof. Now the employer must explain why he did not hire Esra and why he hired Burak. The employer’s explanation needs to be reasonable, that is, valid and objective.

In answering the complaint, the employer states that Esra did not make a good impression during the personal interview. Although this is subjective, the employer argues that it is valid because salespeople need to personable and likeable to succeed with customers. The person hired, Burak, was well liked by his past employer, who said that he got along wonderfully with customers.

Let’s carry on with this imaginary scenario. An investigation by a state anti-discrimination agency finds that the employer has never hired a headscarved woman in the sales department, although two worked in the accounting office away from customers. Also, it is revealed that the employer did not check Esra’s references. It was found that Burak’s references were only checked after he was hired when Esra filed her complaint. An investigation would typically also look at the requirements for the job and whether they are valid, that is, are they really necessary to performing the job’s duties. An analysis would also be done of the employer’s past hiring practices, how job openings are posted and communicated, all the other applications for the position and all those applicants who were interviewed.

Based on the investigation, the agency will make a finding of “probable cause” and try to settle the case with a suitable remedy and without the time and expense of a court hearing. Typical remedies would include a job offer to Esra and payment for the lost wages that she would have earned had she been hired.

The important point to note here is that fines are rarely imposed. This is because some employers would rather pay a fine and keep discriminating. More importantly, fines do not help those who are discriminated against. A person discriminated against in hiring has a right to the job in question, or lost wages, or both.

Employers who do settle these types of cases always stipulate that the settlement is not an admission of guilt. They settle at this stage because they will likely lose their case in court, or a court case would be bad publicity for the company. Should the case not settle in Esra’s favor, the agency might take the case to court for Esra, a big advantage for her, saving her the need to get her own lawyer.

There are many types of employment discrimination cases, relating to hiring, promotions, firing and working conditions. In all such cases the investigator will look for “differential treatment,” that is, whether the plaintiff was treated differently compared to others not in her “protected class” or grouping. It is assumed that this differential treatment is because of her being in that group. In the case of Esra, that she is a woman or because of her religion.

Change is a long process

Many employers in the US structure their hiring practices to avoid committing discrimination. This is because subjective hiring and firing criteria make employers vulnerable to complaints. Also, employers are responsible for the decisions of their managers, whether they approve of them or not.

Despite a myriad of anti-discrimination laws and agencies in all 50 US states, and in several federal agencies, such as the Equal Employment Opportunity Commission, complaints are still filed and many multi-million dollar class action lawsuits are handled by the courts. Ending discrimination is a long process.

Turkey is just beginning on this path with few court precedents, regulations and guidelines, and little investigative experience. Nevertheless, it is a major step that deserves our admiration and support. Only by handling complaints one at a time can a discrimination-free environment be achieved, a key ingredient to a functioning economy and educational system. Getting started is half the battle. Turkey will find its own way in handling such cases, establishing proofs and alleviating the pain of those treated unfairly for reasons unrelated to their performing a job.


*Richard Peres spent several years handling discrimination cases in the US and is the author of two books on discrimination law, its proofs and how to prevent complaints. He is a writer living in ─░stanbul and a contributor to Today’s Zaman. Rich.peres@gmail.com


Muhabir: Richard Peres*