Click here for Part I and Part III

My last article concerned whether a musician may be considered an employee so that he or she can actually take advantage of the anti-discrimination laws.

Let’s say for the sake of argument that you do meet the legal definition of employee. Fine – you are covered by Title VII, the New York State Human Rights Law and the New York City Administrative Code’s prohibitions against discrimination.

But now a perplexing question arises. Is your employer legally responsible for the discrimination which you are complaining about?

For instance, if you are being sexually harassed by your co-workers, is your employer legally responsible?

The answer to this question, of course, depends upon the facts of the case. If management was aware of the harassment or discriminatory conduct – either through complaints or observations – but took no action, then your employer can indeed be held legally responsible.

However, if a club date musician is sexually harassed by, say, a waiter or coat check worker, and the club date employer is unaware of the harassment, it appears unlikely that the employer will be liable or even that there would be a valid discrimination claim.

The best protection for musicians who experience employment discrimination is to make sure their employers know about it.

If you are playing a union job, you do this by submitting a grievance through the union contract.

If you are playing a nonunion job, you can usually submit a complaint through your employer’s internal anti-discrimination program. If your employer doesn’t have a complaint procedure, that could help your case. Why? If a lawsuit does arise, employers who don’t have a complaint procedure may not claim that they didn’t know about discrimination as their defense.

This all presupposes that there was actually illegal discrimination. When will a court determine that anti-discrimination laws were violated? The answer is not at all obvious.

Courts follow a detailed analysis to determine whether discrimination has occurred. This analysis was established by the U.S. Supreme Court in 1973. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

To set forth an employment discrimination claim, an employee must: (1) belong to a protected group, (2) be qualified for the position which they are seeking or in which they are employed, (3) suffer some adverse employment action, and finally, (4) show that the employer did not take similar action against similarly qualified individuals who were not members of the protected class.

If these four requirements are satisfied, the employee has set forth what’s called a prima facie case. (Prima facie means “case in the first instance.”) Once a prima facie case is demonstrated, discriminatory conduct will be inferred.

The employer of course may then rebut this presumption, by setting forth evidence that its actions were justified by a “legitimate non-discriminatory reason.”

For instance, an employer may claim that it had financial justification for the adverse employment action and that the action was not actually a product of unlawful discrimination.

In other words, it’s never O.K. to discriminate, but it is O.K. to fire someone for financial reasons – unless there is a union contract, which almost always has procedures concerning layoffs.

So, in a nonunion setting, if your boss can produce evidence of financial necessity, he or she may be able to win the lawsuit.

In the end, the ball is thrust back into your court. Once the employer has presented its defense, you will be given the opportunity to prove that your employer’s so-called reason for firing you – like financial necessity – was actually a pretext for discrimination.

The upshot of this cumbersome legal jousting is that you – the employee – have the ultimate burden of proving that discrimination actually occurred. In 1993, the U.S. Supreme Court held that if an employee cannot sustain the burden at any point in the suit, the case must be dismissed. St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742 (1993).

For example, let’s say a 65-year-old symphony orchestra member was terminated and replaced by a substantially younger musician. The employer does not contest the playing ability of the terminated musician, but simply claims that it can no longer afford her outrageously high salary and that its financial solvency would be impaired by retaining her. Assume that this is a nonunion setting.

In this scenario, the employee has set forth a prima facie case which the employer has adeptly rebutted. The employee has said that this is age discrimination; the employer has said, “Not so! This is a matter of money!”

Unfortunately for the employer, let’s say that the terminated musician can produce evidence that her replacement is being paid more than she made when she was terminated. Such a showing would establish pretext. (I would love a case like this one.)

Ultimately, a case like this could have been resolved through the grievance procedure in a union contract, which most often contains anti-discrimination provisions. This is the first and often best avenue for resolution of discrimination claims – if the gig is union.

In my next article, I will review some interesting reported employment discrimination decisions involving professional musicians.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.