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Equal Pay Elusive, Workplace Discrimination Claims on the Rise: How Civil Rights Laws Aren't the Only Option

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By Javier Lavagnino, Esq. on April 28, 2009 8:43 AM

Census data released yesterday indicates that Blacks and Hispanics are starting to fall further behind whites in pursuing higher-paying jobs, reports the AP. Indeed the discrepancies appear to be the "largest rates in about a decade" and are perhaps due in part to the tough economony as one demographer explained, "[t]he lesson of most economic downturns is minorities are the last hired, first fired. They lose jobs more quickly, and they will be the last to recover."

Here are just a couple of the key figures highlighted in the AP piece:

- Blacks with four-year bachelor's degrees made about $46,502 (78 percent of the salary for whites with the same level of education)

- Hispanics with bachelor's degrees got $44,696 or about (75% of whites)

According to a demographer for the Population Reference Bureau, Mark Mather, the statistics "highlight some of the barriers for minorities". He went on to indicate that "the pay disparities could widen further since blacks and Hispanics tend to be relative latecomers to the professional world and thus more vulnerable to layoffs in the current recession."

In light of those numbers, perhaps it shouldn't be surprising that 2008 was a record year for the filing of federal workplace discrimination claims (race complaints outnumbered other types of discrimination claims, too). But although civil rights laws are probably the first thing that comes to mind for addressing workplace discrimination, there actually do exist other ways for aggrieved employees to pursue claims against their employers. In many jurisdictions, it is possible to file a lawsuit alleging both federal statutory employment discrimination claims, under statutes such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), plus common-law state claims, such as wrongful discharge and intentional infliction of emotional distress.

First off, employees who work for small employers, may simply have no choice but to rely on common law state claims. Only employers with 15 or more employees are covered by Title VII and the ADA. Further, federal age discrimination laws only apply to employers with 20 or more employees. However, notably, federal equal pay laws do apply to virtually all employers. Another thing to take not of is that more stringent deadlines usually apply to statutory claims, and common law claims may provide a fallback should this be an issue.

Assuming an employer's size and timeliness are not at issue, employees looking to speed their cases into court may also benefit from relying solely on common-law claims. The reason is that some federal and state anti-discrimination statutes require claimants to file a complaint with a government agency, for the agency to investigate the matter. As with most things governmental, such investigations usually take a substantial period of time. Last, but not least, common law actions may also be able to offer employees a greater degree of compensation for injuries in discrimination cases.

One of the main disadvantages of common law suits is that they might not be as strong as some federal or, particularly, state laws. Additionally, unlike civil rights laws that are generally designed specifically with discrimination in mind, sometimes such cases don't fall neatly into one type of common law suit. This results in varying degrees of uncertainty when bringing common law cases.

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