by Daniel J. McAdam
If you've been discriminated against at work because of your
disability, there are remedies. Here are some tips for making the
most of them.
"It will forever ruin your career."
"You'll never win."
"Even if you win, the company will make life miserable for you
The above quotes are just a sample of the advice that I was given -
frequently - when I decided to file a discrimination complaint
against my employer. The advice came from friends, and it wasn't
unreasonable, or ill-intentioned. But it wasn't good advice. The
truth is, most people regard requests for enforcement of anti-
discrimination laws the same way they regard fire extinguishers in
hallways - they're there, in case of an emergency, but you hope you
never have to use them.
Not true. What is true is that, if you see a law being broken, you
should report it to the proper authorities. Whether the law in
question has to do with protection of personal property, or
discrimination, or anything else is ultimately a secondary
consideration. When you file a discrimination complaint, you are
reporting what you perceive to be a violation of law. The question,
then, is not whether you should report the violation, but rather how
you should report the violation. Below are some guidelines,
developed through experience. Before you dive in, a word of caution:
I'm not a lawyer. Since this is a legal matter we're discussing,
it's to your advantage to seek competent counsel from a licensed
attorney prior to taking any action.
KNOW WHAT YOU'RE TALKING ABOUT. In the immortal words of Daniel
Boone, "Be sure you're right. Then go ahead." The only way that
you're going to be sure you're right is to know what the laws are.
Your attorney can help you, but you still need to familiarize
yourself with the applicable laws and understand their key points.
If you've been discriminated against because of a disability, the
best place to start is with a small 32-page booklet issued jointly by
the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S.
Department of Justice - Civil Rights Division, entitled "The
Americans with Disabilities Act - Questions and Answers." You can
get the booklet by writing directly to the EEOC. (The address
appears at the end of this article.)
The Americans with Disabilities Act, or ADA, applies to all private
employers with 15 or more employees, as well as to State and local
governments, employment agencies and labor unions. Fortunately, the
act is fairly clear about what rules an employer must follow with
regard to disabled employees. While most discussions regarding the
ADA focus on the requirement for reasonable accommodations, the act
is much broader than that. To quote: "The ADA prohibits
discrimination in all employment practices, including job application
procedures, hiring, firing, advancement, compensation, training, and
other terms, conditions and privileges of employment." Thus, for
example, if you were denied advancement solely because of your
disability, and if you would have been able to perform the duties of
the higher position with reasonable accommodation, there's a good
possibility that your employer violated the ADA. It's certainly
worth looking into.
The ADA is a great law, but it's not the only law that protects
disabled individuals against discrimination. Employees who work for:
1) the United States government; 2) contractors with the United
States government, or; 3) recipients of Federal funds, such as
grants, are covered by the Rehabilitation Act as well. For employees
of companies who contract with the United States government, the
Rehabilitation Act goes a step further than the ADA, and requires
that employers implement an affirmative action program for the hiring
and advancement of "qualified individuals with handicaps." The
company that I filed my complaint against did fall into this
category. This helped my case, since it is much easier to "prove" a
lack of affirmative action than it is to prove discriminatory
PREPARE, PREPARE, PREPARE. The more preparation you've done before
filing your complaint, the better off you'll be. What do I mean by
preparation? Basically, I mean document anything that is the least
bit pertinent to your case, and keep this documentation well-
organized and in a safe place. In case you're wondering, your desk
at work is not a safe place.
Let's say, for instance, that a co-worker in your department has just
been promoted to a job for which you're much more qualified. You
might want to write your boss a memo, saying that you'd like to
discuss the matter and asking him or her to set aside some time for
this meeting in the next week. SAVE A COPY of this memo. When you
do meet with your supervisor, state your concerns in a calm,
business-like manner. Take notes of what is said, and SAVE THE
NOTES. If your boss suggests that the conversation take place "off
the record," politely refuse. After the meeting, draft a memo to
your boss stating your understanding of the discussion and asking him
or her to correct any misconceptions in writing. SAVE A COPY of this
memo. (Is a pattern beginning to emerge here?) Keep all of your
memos and discussions concise, polite and free of emotion, bearing in
mind that being polite does not require you to agree with things you
actually don't agree with.
START THE PROCESS INSIDE YOUR COMPANY. Most companies have a Human
Resources department that is responsible for handling complaints of
discrimination. If you have been discriminated against, this is the
logical place to start. Put your complaint in writing (keeping a
copy, of course), send it to the Human Resources department and
suggest a meeting. Provide the person assigned to your case with all
pertinent information, but be sure to keep copies of everything for
yourself as well. Similar to the method stated above for dealing
with your boss, try to document everything that transpires between
you and the person investigating your complaint.
How much time should you allow the company to investigate and resolve
your complaint before going further? Under the ADA, you've got six
months from the time of an incident to file a complaint with the
EEOC. The Rehabilitation Act does not have a similar restriction,
but it makes sense to not wait longer than six months before
FILE A COMPLAINT WITH THE PROPER AGENCY. If you are filing a
complaint of violation of the ADA, send it in writing to the EEOC.
Complaints of violation of the Rehabilitation Act should be sent to
the U.S. Department of Labor. Your state and local government may
also have anti-discrimination legislation. Check into it.
BE PATIENT. The truth is, it takes a long time for a complaint to be
resolved, often as much as eighteen months. It's an uncomfortable
time, one when you'll ask yourself over and over why you ever started
this whole thing. Hang in there, and try to remain positive. Make
use of friends (outside of work) and relatives as a support group.
BE GRACIOUS IN VICTORY OR DEFEAT. When your complaint is resolved,
you will emerge either as the victor or the vanquished. In either
event, maintain your self-control. If the case is lost, consider
your options but do not act rashly. If the case is won, don't gloat.
Once the battle is over, you will see that what you were involved in
was really no battle at all, but rather an attempt to achieve
fairness and to maintain your dignity as an individual in the
U.S. Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507
U.S. Department of Justice
Civil Rights Division
P.O. Box 66738
Washington, DC 20035
U.S. Department of Labor
Office of Federal Contract Compliance Programs
200 Constitution Avenue, NW
Washington, DC 20210
1995 Daniel J. McAdam
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