What's the first thing I should do if I think I'm being discriminated against or harassed at work?
The first thing to do is document. Keep a log of what happens to you at work. Then, if possible, complain to your management about the offensive behavior. It is only fair to give the employer a chance to rectify the problem. The law acknowledges that there may be some circumstances in which a person just canít complain to his/her management, but if you donít youíd better have a REALLY good reason.
OK. Iíve complained, but my management hasn't done anything about it. Now what do I do?
At this point, you should spend a little money, and consult with an attorney who specializes in Employment Law. If you donít know any attorneys, and donít know anyone who can give you a referral, you can contact NELA (National Employment Lawyerís Association) at www.nela.org. (Telephone: (415) 227-4655; Fax: (415) 496-7465). They can refer you to an experienced, qualified Employment Law attorney in your area.
You need to speak with an attorney, in order to determine whether you really have a viable claim. You also need to speak with an attorney because different states have different requirements for what you have to do before you bring a claim against your employer.
What do I have to do in order to bring a claim against my employer?
For example, in Pennsylvania, you must file a charge with the Equal Employment Opportunity Commission, (EEOC), or the Pennsylvania Human Relations Commission, (PHRC). These agencies get 6 months to a year to investigate your claim, and make a determination of whether there is "probable cause" to believe that discrimination or harassment occurred. The agency will also make one or more attempts to settle your claim with your employer.
After the investigation period, the agency will release your claim, (or you can request a release), and then you can file a private claim against your company in court.
In New Jersey, however, because it has probably the best anti-discrimination law in the country (the Law Against Discrimination, or LAD), most claims are filed in state court, and the LAD does not require filing with an agency first, so in NJ you can take your claim directly to state court.
An experienced Employment Law attorney will know about the federal law, and the state laws that apply to you.
Why do you insist on an employment law specialist? Can't any attorney represent my claim against my employer?
You wouldnít go to your family doctor for a brain tumor, and you shouldnít go to a general practitioner for an employment law claim. There are special laws that apply to employment law. Many of these laws are recent, so they are still growing and changing. You need someone who knows the details of this kind of law, and who keeps up with all the latest developments. I am currently representing a client in a malpractice action against her former attorney, who didnít know employment law. As a result, my clientís claim was dismissed from federal court, and it was too late to file a claim in state court.
Again, if you donít know any attorneys, and donít know anyone who can give you a referral, you can contact NELA (National Employment Lawyerís Association) at www.nela.org. (Telephone: (415) 227-4655; Fax: (415) 496-7465). They can refer you to an experienced, qualified Employment Law attorney in your area.
Do I have an age discrimination claim if I'm over 40, but the person who replaced me in my job is also over 40?
Maybe. Originally, the Age Discrimination in Employment Act (ADEA) only protected people over 40 from people under 40, but recent caselaw has allowed cases in which the replacement person was over 40, but was "substantially younger" than the plaintiff. However, the courts have not yet defined "substantially younger."
If my manager sexually harasses me, is the company responsible?
Probably. In 1998, the Supreme Court decided two cases, Faragher v. City of Boca Raton, and Burlington Industries v. Ellerth. In those cases, the Court held that companies will always be responsible for the actions of their managers and supervisors. The only exception is in the case where the complainant has not experienced any detrimental job actions, and the company can show that it had effective policies and procedures in place; that it trained its staff in those procedures; and that the complainant unreasonably refused to use the procedures.
Can I sue the individual manager who harassed me?
Under the federal laws, you can not sue individuals. Under some state laws you can. Again, an experienced Employment Law attorney can advise you about this.
I think I'm being discriminated against because of a disability. What do I need to prove?
You should refer to the section in this website on the Americans With Disabilities Act. You will need to consult an attorney to determine whether you have a disability, as defined by the Act; whether you are a "qualified individual with a disability" as defined by the Act, and whether or not you requested a "reasonable accommodation," as defined by the Act.
What kind of damages can I get if I win my case?
Under the federal laws, you can get compensation for lost wages, both in the past and in the future. You can also be compensated for emotional pain and suffering. If you can prove that the discrimination was intentional, you can also get punitive damages. Thatís the good news. The bad news is that under the federal law, there is a cap on what you can get for pain and suffering and punitive damages combined. The cap is a sliding scale depending on the number of employees in the defendant company, however, the most you can get for those two categories from the biggest company is $300,000. In 1998 UPS lost a sexual harassment and discrimination case. The jury awarded $80.7 Million. The judge reduced the award to $300,000, because thatís what the statute allows.
Your state law, however, may give you better damages. In Pennsylvania, currently, you can get unlimited pain and suffering, but no punitive damages. In New Jersey, you can get unlimited pain and suffering and unlimited punitives. Your Employment Law specialist will be able to tell you, as well as giving you an idea of what your specific case may be worth.
Where do I find a qualified, experienced employment law attorney?
As Iíve stated in some of the previous answers, if you donít know any attorneys, and donít know anyone who can give you a referral, you can contact me at mardi@SueTheBoss.com, (telephone 267-880-1180; fax 267-880-1170), or you can contact NELA (National Employment Lawyerís Association) at www.nela.org. (Telephone: (415) 227-4655; Fax: (415) 496-7465). They can refer you to an experienced, qualified Employment Law attorney in your area.
DISCLAIMER: This website is intended to give general information on a very complicated area of the law. None of the information in this website is to be construed as legal advice; it is for informational purposes only. No information provided in this website, or communications made over its affiliated e-mail address, is to be considered as having created an attorney-client relationship. The materials provided in this website provide summaries only. Employment law cases are very fact-intensive and fact-sensitive. An evaluation of an actual case requires an extensive discussion of the specific facts and a thorough evaluation based on those facts and the applicable law.