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