Discriminatory Firing

 

What is discriminatory firing?

 

Discriminatory firing is a type of wrongful termination, also be referred to as wrongful discharge. It occurs when an employee is terminated from their job based on their race, color, religion, sex, or national origin.1 Federally, you may have a cause of action either for being fired or for constructive termination, where your resignation is the functional equivalent of a discharge.2 North Carolina, however, does not recognize a claim for constructive discharge based on a hostile work environment.3

To prove that your termination was discriminatory, you must prove that: you are a member of a protected class (i.e., a woman), qualified for the position, discharged from the position, and replaced by a person outside the protected class.4

 

What are the federal laws regarding discriminatory firing?

 

Under federal law discrimination in the discharge of employees is prohibited by Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Job Training Partnership Act. 5

 

How do I bring a claim for discriminatory firing under federal law?

 

To file a claim under federal law you should contact the Equal Employment Opportunity Commission (EEOC). In North Carolina, the regional EEOC office is in Charlotte, the local office is in Greensboro, and there is an area office in Raleigh.6 See The EEOC Process for more information.

 

What are the laws in North Carolina regarding discriminatory firing?

 

The North Carolina Equal Employment Practices Act (NCEEPA) makes direct firing illegal by stating that “[i]t is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgment on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”7 NCEEPA, however, does not provide any remedies for violations.8

 

How do I bring a claim for discriminatory firing in North Carolina?

 

If you are a current or former state or county employee, then you can file a complaint with Civil Rights Division (CRD) of the Office of Administrative hearings. The CRD is the deferral office charged with handling all claims of discrimination in employment or retaliation.9 “The Human Relations Commission in the Department of Administration shall have the authority to receive charges of discrimination from the Equal Employment Opportunity Commission … the agency shall use its good offices to effect an amicable resolution of the charges of discrimination.”10

To file a claim, also referred to as a “charge”, you must contact the CRD by mail, telephone or in person:11

1711 New Hope Church Road
Raleigh, NC 27609
(919) 431-3036

 

The complaint shall include the following information: 12

 

  1. Full name, address and telephone number (work and home) of person making the complaint;
  2. Full name, address and telephone number of the agency against whom the complaint is made (the respondent);
  3. The basis of the complaint (hiring or promotion);
  4. The date the alleged discrimination occurred;
  5. The name(s) of the individual(s) hired or promoted;
  6. A statement disclosing the particulars of the employment decision;
  7. The signature of the person making the complaint; and
  8. The date the complainant signed the complaint.
If you are not a current or former state or county employee, you must file your claim with the EEOC district director within 180 days of being wrongly discharged.13
See The EEOC Process for general information about filing a claim.

 

 

Do I have any alternative causes of action if I believe I was discriminatorily fired?

 

In addition to filing a charge for discrimination with the CRD or EEOC, you may file a lawsuit for wrongful discharge. Having a discrimination claim does not bar you from seeking remedy under wrongful discharge, and therefore you could file a charge and lawsuit at the same time.14 To establish that your termination was in violation of public policy you must show:15

  1. You were an at-will employee;
  2. You were terminated;
  3. There was a public policy applicable to the circumstances of the termination;
  4. You were protected by the public policy: and
  5. Your employer’s motivation in firing you violated public policy.

 

Discriminatory Firing: “It Happened to Me” 16

 

Ms. Kym McLean was an employee at Carolina Hills, a subdivision of Patten Communities Inc. Ms. McLean, a 19-year-old black woman, was hired in 1995 by Mr. Willard Hodge, a white sales manager, as an at-will employee to work as a receptionist at his Sanford, North Carolina office. She worked at Patten until August 22, 1995. There was a matter of dispute as to whether she resigned or was fired. Ms. McLean claimed that she was discriminated against on the basis of her race and sex, and that Mr. Hodge’s actions had violated the public policy of North Carolina.

While working at Patten she was subject to indecent propositions, innuendos, and insults based on her race, sex, or both. Hodge joked about wanting to have sex with a black woman. He called the female employees “bitches,” “whores,” “sluts,” etc. Hodge would also describe the sexual actions that he wanted to take with female employees, including Ms. McLean. At one point he propositioned Ms. McLean. After Ms. McLean complained about Hodge’s conduct, Hodge told another employee that he wanted her fired, or made to quit. An advertisement for a replacement was placed before Ms. McLean resigned or was terminated. In 2003, the court ruled in Ms. McLean’ favor, holding that an employee has a cause of action when her departure is the result of a refusal to perform sexual favors.

 

 

1 42 U.S.C.A. § 2000e-2 (West 2009).
2 Lindemann, supra note 144, at 1436 -1437.
3 Whitt v Harris Teeter, Inc. 614 S.E.2d. 53l, 531 (N.C. 2005).
4 St. Mary’s Honor Ctr. v Hicks, 509 U.S. 502, 506-507 (1993).
5 2 Emp. Discrim. Coord. Analysis of Federal Law §50:2 (Feb. 2010).
6 EEOC, http://www.eeoc.gov/field/ (last visited Jan. 21, 2010).
7 N.C. Gen. Stat. Ann. § 143-422.2 (West 2009).
8 5 Emp. Discrim. Coord. Analysis of State Law § 37:49 (Feb. 2010).
9 10A N.C. Admin. Code 5C.0216 (2010).
10 N.C. Gen. Stat. Ann. § 143-422.3 (West 2009).
11 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html (last visited Mar. 2, 2010).
12 North Carolina Office of Administrative Hearings, http://reports.oah.state.nc.us/ncac/title%2026%20-%20administrative%20hearings/chapter%2004%20-%20civil%20rights%20division/26%20ncac%2004%20.0202.html (last visited Mar. 2, 2010).
13 10A N.C. Admin. Code 5C.0216 (2010).
14 Philips v. J.P. Stevens & Co., 827 F. Supp. 349, 352 (M.D.N.C. 1993).
15 Richard E. Kaye, Cause of Action for Termination of At-Will Employee in Violation of Public Policy, 24 Causes of Action 2d § 227 (2004 & Supp. Sept. 2009).
16 See McLean v. Patten Communities, Inc., 332 F.3d 714 (4th Cir. 2003).