Discriminatory Firing: Can I Collect Unemployment?

If you were fired for discriminatory reasons, you may still be eligible for unemployment — but it can be tough to prove.

If you were fired from your job, you may still be eligible for unemployment. To qualify, you must be out of work through no fault of your own. Each state has its own rules about which reasons for firing will make an employee ineligible for unemployment. In most states, employees who are fired simply because they are a poor fit, their performance doesn’t meet the employer’s standards, or they don’t have the skills necessary for the job can still collect unemployment, because these employees are judged not to be at fault. However, an employee who is fired for serious misconduct won’t be eligible.

What if your employer claims you were fired for serious misconduct, but you believe you were fired for discriminatory reasons? In this situation, your state unemployment agency will hold a hearing, at which you and the employer can each give your side of the story. To qualify for benefits, you don’t necessarily have to convince the hearing officer that you were discriminated against. However, you must show that you didn’t commit the kind of serious misconduct that renders an employee in your state ineligible for benefits.

Discriminatory Terminations

In the United States, most employees work “at will.” This means they can quit at any time, and can be fired at any time, for any reason that is not illegal. Discrimination is an illegal reason for firing. Even if you are an at-will employee, you may not be fired because of a protected trait, such as your race, national origin, religion, gender (including pregnancy), age (if you are at least 40), disability, or genetic information. (These are based on federal law; many states have additional protections, including prohibitions on discrimination based on sexual orientation or marital status.) If you are fired for one of these reasons, you should still be eligible for unemployment benefits.

Denial of Unemployment Benefits

If your claim for benefits was denied, it means that the state unemployment agency, after reviewing your application, talking to your former employer, and interviewing you, concluded that you are not eligible for unemployment. The state agency will send you a notice informing you that your claim was denied; this notice should state the reason(s) why the agency found you ineligible. For example, the notice might state that your claim was denied because you were fired for stealing from the company, violating safety rules, or refusing to take a drug test.

Filing an Appeal

If you believe that you were fired for discriminatory reasons, you should file an appeal right away. Every state has its own appeal process, but every state requires applicants to file an appeal quickly (typically, within seven to 30 days). Once it receives your appeal, the agency will schedule a hearing to take place by phone or in person. At this hearing, you should present any evidence you have of the real reasons you were fired. After hearing from both sides, the hearing officer will issue a decision. If you lose the appeal, you have the right to file a second appeal, either within the state agency or to the regular state court system.

Proving Your Case

To win the appeal, you don’t have to prove that your firing was discriminatory. You have to prove only that you weren’t fired for the type of misconduct that renders employees in your state ineligible for benefits. For example, if your employer says you were fired for clocking in late, you could submit evidence that you clocked in on time, that other employees who clocked in late were not fired, or that your employer never explained the rules for clocking in properly.

Getting Help

If you believe you were fired for discriminatory reasons, you should consult with an employment lawyer right away — preferably before your unemployment appeal. A lawyer can assess your case and explain your chances of prevailing in court. A lawyer can also help you file a charge with the Equal Employment Opportunity Commission (EEOC) or a similar state agency; this is a prerequisite to filing a lawsuit. In your unemployment case, a lawyer can help you complete your paperwork and make your arguments in the most persuasive way; if you are planning to pursue a discrimination case, a lawyer can also use the unemployment hearing to find out what the employer’s evidence, defenses, and strategies are likely to be, which will prove very useful if you end up in court.

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