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What If Employment Discrimination Doesn't Mean Termination?

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Too often we think of employment discrimination in black and white terms. We believe that there is no legal recourse unless an employer uses an employee's race, age sex, disability, or national origin, etc. as its sole basis for terminating an employee. But the truth is that employment discrimination cases may arise long before a final termination. They are not as common, but they do exist.

A person who sues must show that he or she is somehow injured by the employer's actions. If you are terminated because of discrimination, the fact that you no longer have a job is an injury. A court can help make you whole from that injury, in the form of a lost wages and benefits, or a reinstatement to your position.

But if you haven't been fired, but your employer still discriminated against you, it's incredibly important that you first have an experienced attorney identify if you have an injury. You think something is wrong, but you're not entirely sure what. How can a court help you?

An injury cannot be speculative, or something that may happen. forward-looking. And, if your injury is forward-looking, there is a proper way to demonstrate the economic value of that injury in court. This is where an attorney can help your case shine.

In the case of Brancaccio v. City of Hackensack, a firefighter sued the Hackensack Fire Department. The firefighter had a role as an "on-the-line" first responder. This required him to be on duty for 24 consecutive hours and then take three full days off from work. However, on-the-line firefighters could take on fire inspection work during their mandatory three-day breaks. The Fire Department had a separate inspections bureau that inspected properties for fire safety hazards. Firefighters often did work in both capacities.

One day, after an on-the-line response, the Department found Mr. Brancaccio looking "gray," and with difficulty breathing. The fire chief made him take a pulmonary medical test to see if his lungs were fit for first response firefighting. The doctor concluded that he was not fit for on-the-line duty, so the Department transferred him to the inspection bureau.

Sometime later, he got another doctor's note saying that he was fit for on-the-line duty. But the chief refused to transfer him back to on-the-line duty.

Mr. Brancaccio then sued the Department claiming disability discrimination, claiming that he was fit for on-the-line duty. He wanted to be placed on-the-line, which paid the same as being in inspections, because it allowed him to do overtime work during the mandatory three-day break. As an inspector, the firefighter would not have extended breaks to take overtime.

The fire chief admitted that in refusing to transfer Mr. Brancaccio back to "on-the-line" duty, he was discriminating against the plaintiff's perceived disability. But, although he discriminated, there was no injury from the decision to keep the him as a full-time inspector. Specifically, the chief claimed that Mr. Brancaccio could not show that he suffered "an adverse employment action" from the decision to discriminate. What was the injury?

Ultimately, the Court found that Mr. Brancaccio did not show that the transfer led to lost wages. For example, although the positions required different duties, they paid substantially the same. Additionally, the claim that he would have taken on more overtime if he was an on-the-line firefighter was too speculative. The court did not believe that the denial of potential overtime was an actual injury.

Interestingly, the Court did suggest that a failure to provide overtime could potentially be an injury. But it focused on the fact that Mr. Brancaccio failed to prove his claims with expert (accountant or economist) reports, or other evidence.

It was likely that the firefighter could have made money through overtime if he was working on the line, but he failed to show that he would have taken on that overtime if allowed to work back on the line. If he approached or structured his case differently, he could have won his case.

John Kundrat is a recent graduate of Rutgers Law School, who received a BA from Fordham University, researched and wrote this blog.

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