
TIPS FOR VICTIMS OF JOB BIAS
By: LORING N. SPOLTER, a
trial attorney, is on the teaching faculty of the
National Employment Lawyers Association. He
represents his Dade, Broward and Palm Beach County
clients in matters concerning employment law,
unemployment compensation and DUI/criminal defense.
His Fort Lauderdale phone number is (954) 728-3494.
People with diabetes and other disabilities are at
a high-risk for experiencing discrimination in the
workplace. Of the more than 58,700 Americans with
Disabilities Act complaints filed with the U.S. Equal
Employment Opportunity Commission since 1992, more
than two thousand people specifically listed diabetes
as the reason why they have been mistreated at work.
Another 6,500 complaints cite visual ailments and
problems with extremities, medical concerns
frequently associated with diabetes, as the
underlying reasons for job discrimination.
The Americans with Disabilities Act, a federal
civil rights law, outlaws workplace discrimination
against persons capable of performing the
"essential elements" of their jobs. Persons
who believe they have been victimized by illegal
discrimination are permitted to sue current and
former employers for economic damages and their
emotional pain and suffering. When employer conduct
is particularly outrageous and offensive, workers may
also seek punitive damages.
The Family and Medical Leave Act, another federal
law, requires all public sector employers and those
private sector employers having 50 or more workers
within a 75 mile radius to offer as long as 12 weeks
leave for persons facing serious medical concerns.
The Act also permits healthy workers to take leave to
care for spouses, parents and children who are
confronted by serious medical concerns.
If you have been victimized by illegal job bias,
here are some tips which can protect your rights and
enhance the strength of your case:
1. File formal complaints with the correct
governmental agencies. Complaints concerning most
types of illegal discrimination must be filed with
the U.S. Equal Employment Opportunity Commission and
the Florida Commission on Human Relations. An
attorney who practices in the area of employment law
draft and file these complaints, on your behalf.
The EEOC lacks jurisdiction over violations
involving the Family & Medical Leave Act. The
U.S. Department of Labor oversees compliance of this
new Federal law, though it permits the filing of
private lawsuits without prior contact with the
agency. Some job discrimination complaints involve
numerous laws which can be overseen by multiple
agencies.
2. You must file complaints and initiate
lawsuits prior to strict deadlines. Failing to act
timely will cause the loss of your legal rights.
3. Consider hiring an attorney experienced
in employment discrimination litigation. Most job
bias victims don't know which law or laws may apply
in their cases. Non-attorneys at governmental
agencies almost always write initial complaints,
though they are not always familiar with all the laws
involving other agencies (or sometimes even their own
agencies). Incomplete and improperly worded legal
documents can destroy even the strongest of cases.
Agencies allow private attorneys to draft these
documents on behalf of their clients.
Private attorneys can take action long before
governmental agencies start looking through their
ever growing mountains of files. The EEOC, for
example, waits about one year before investigating
its job bias complaints.
It's vital to accumulate evidence early-on. Proven
case enhancement strategies can add significant
strength to discrimination claims.
4. Evidence not obtained early-on often
becomes impossible to retrieve. Gather evidence, but
do so legally. Consider requesting a copy of your
personnel file prior to filing a job bias complaint.
When told she was being "laid-off", one of
my clients asked for and received photocopies of
employee notes her supervisor maintained at her desk.
Surprisingly, the notes commented on my client's need
for medical leave by stating "need to see
improvement in attendance. Can't be promoted until
solved."
Although my client earned favorable performance
evaluations, she suffers from endometriosis, a
gynecological ailment, and would miss one of two days
of work each month. These records are valuable
evidence in a lawsuit which claims violations of both
the Americans with Disabilities Act and the Family
and Medical Leave Act.
5. If still working for the employer you're
filing a complaint against, watch out for illegal
retaliation. Though it's unlawful to punish workers
for filing job bias complaints, many employers do so.
Consider sending the employer copies of the job bias
documents which were submitted to the government, via
certified, return receipt mail. With proof showing
mailing and receipt of these items, you can
demonstrate that an employer was made aware that a
job bias complaint had been filed prior to a demotion
or firing.
6. Log important incidents as they happen.
Events not written down are often forgotten.
7. Seek favorable witnesses, but don't be
surprised when even "good friends" fear
coming forward. Keep abreast of coworkers who later
quit or are fired. Because they're no longer
financially dependent on the discriminating employer,
these witnesses can be of extraordinary value.
8. If fired, start looking for work. You
are required to minimize your out-of-pocket damages
by beginning your job search immediately.
9. Workplace discrimination causes anguish
and anxiety. Meeting with a psychologist or social
worker can help heal emotional wounds and documents
your mental pain and suffering. "Disrupted sleep
patterns, diminished enjoyment of things once
cherished, changed eating patterns and frayed family
relationships commonly accompany the anger and
depression which follows the loss of one's job,"
notes Michael Rappaport, a Miami psychologist.
"Discriminatory firings hurt even more than
terminations for justifiable reasons. People who are
fired for cause can make changes and learn from their
mistakes. Victims of employment discrimination are
unable to alter what makes them vulnerable to
abuse," Rappaport added.
10. Look for satisfaction and happiness
outside of your workplace or legal battle. Job bias
disputes are typically long-lasting marathons, not
quick-ending sprints. Maintaining a positive outlook
will enhance the likelihood of legal success.
Importantly, it will also help you maintain your
physical well-being and mental health.
Return to Main Page, Wound Care Institute
Newsletter, Fall 1996