Lawyers are like rhinoceroses: thick skinned, short-sighted, and always ready to charge. -- David Mellor


PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

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 afterwards."

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 behavior.

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 reporting something.

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 workplace.

ADDRESSES

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
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1995 Daniel J. McAdam

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