EMPLOYMENT LAW

Your employer might want you to think that its Human Resources (HR) Department cares about you as a human. Think again. HR doesn't stand for "humane resources."

We understand the horrible things that can happen to a good worker on the job. Just take a look at the Profiles in Discrimination on this website, and you'll see what we mean!

We are not surprised by the games HR operatives play. They are sophisticated and seem to dream up ways of firing employees—or harassing them until they quit—under elaborate pretexts.

But employer pretexts that aim to disguise unlawful acts of discrimination can be laid bare in a court of law.

And if you are being pressured by your employer to quit your job, think twice. Your employer may know something about the law that you don't. Quitting can actually prevent you from winning a lawsuit against your employer under anti-discrimination laws. Quitting can also prevent you from collecting unemployment.

This is why employers often strategize to harass you so much that you quit—rather than fire you. Before quitting your job due to harassment and discrimination, give us a call to learn about your rights under the law, 775.853.9455. We're here to help you when bad employers happen.

A client we will call "Jake" was an electrical worker. He slipped and fell when climbing a pole and was injured on the job. Jake believed that his employer did not like that he was injured and wanted to get rid of him.

Jake thought that his employer suspended him on a pretext, when his boss claimed that he violated some obscure company policy. Days later, Jake was fired.

Jake was forced to move out of the state, to find work. Jake turned to our office for help. We pursued claims, including Disability Discrimination under the ADA and defamation. The case was later resolved.

A client we will call "Dr. Ko" worked in the medical field. Dr. Ko cooperated in an EEOC investigation against his employer regarding the firing of a co-worker. The co-worker claimed his firing was racially motivated.

After being a witness in support of his co-worker's racial-discrimination claim, Dr. Ko was fired. Dr. Ko believed that he was fired in retaliation for his cooperation in his co-worker's EEOC investigation. Such firings are unlawful.

Dr. Ko retained our office to protect and vindicate his legal rights. We pursued claims against the employer, including under the anti-retaliation provisions of Title VII, and the case was later resolved.

A client we will call "Shawna" worked as an administrative assistant for a company that sold products on the Internet. One day, Shawna's boss told her to go home and change her hairstyle, which he didn't like.

But there was nothing wrong with the way her hair was groomed. Shawna wore her hair in a natural style for an African American, and it was well groomed in a curly, kinky style.

Her boss then tried to cover-up this act of discrimination by offering Shawna a different job at the company, working in the warehouse for less pay. Things quickly went downhill from there.

First, a manager at the warehouse kept calling Shawna by a different name, which Shawna described as a "ghetto" variation of her name,to belittle her. The manager called her this name even after Shawna repeatedly told her not to do so.

Shawna believed this was racial harassment. Second, the warehouse would not let Shawna bring her medication with her to work, which caused her to suffer a certain allergic reaction one day, necessitating her to go to the hospital.

Third, the company had supervisors go to Shawna's work area and stare at her for long periods of time. This was intimidating, as they were looking for her to make a mistake or work too slowly.

But Shawna's warehouse productivity met quotas. She was a good worker, even under pressure. Yet, Shawna felt that that they did this to harass her.

Fourth, when Shawna complained about this mistreatment and harassment, two managers hurried her into an office and berated her. She tried to leave.

When she finally escaped, Shawna marched directly to the police station. She filled out a police report against her supervisors for false imprisonment, assault, and battery.

She was forced by this hostile work environment to resign from her job—i.e., she was constructively discharged. Shawna turned to our office for help.

We pursued claims against the employer, including for racial discrimination and harassment under Title VII, disability discrimination under the ADA, battery, and false imprisonment. The case was later resolved.

A client we will call "Jan" worked as an administrative assistant in a healthcare clinic. A supervisor became romantically interested in Jan and paid her an unwelcome visit to her home late at night. He banged on the windows and frightened Jan and her children. She wouldn't let him in her house.

Jan later obtained a restraining order against him and reported the matter to her supervisors at work. But they did not seem to take her concerns seriously. They made excuses for this "stalker" and, at one point, even blamed Jan—the victim!

The company offered to reduce Jan's work schedule, to lessen her exposure to the stalker at work.

Jan felt that the company would not protect her from the stalker, who continued to work at the clinic. He would sometimes glare at her, when passing by her office window. Jan was done with feeling harassed and unsafe at work.

After her employer failed to help Jan, she resigned—a forced resignation—to protect her wellbeing. She felt that the company was unwilling to take prompt, appropriate, and corrective action against the supervisor.

Jan turned to our office for help. We pursued claims against the employer, including sexual harassment and discrimination under Title VII. The case was later resolved.

A client we will call "Milo" worked in the investment field. He had disabilities. His male supervisor often asked Milo to invite him to his home.

The supervisor continued to make unwelcome sexual advances and comments toward Milo, including by pantomiming lewd gestures to Milo. Milo was very uncomfortable with such advances and rejected them.

This occurred at a company function. Milo was humiliated. The encounter also injured Milo, exacerbating his disabilities. He became very despondent. Milo complained to the company, but the company claimed that no sexual harassment had occurred.

Milo demanded an investigation and said he had filed a discrimination claim with government.

He feared that he would be fired. Milo turned to our office for help. We pursued claims against the employer and the supervisor, including for sexual harassment and discrimination under Title VII and the ADA, and battery. The case was later resolved.

A client we will call "Julio" worked as a male nurse in a medical facility. Julio had a very slight build, weighing about 120 pounds. A workplace rule required nurses, who weighed less than a patient being moved, to call for a second nurse to help move the patient.

The female nurses thought that, because Julio was a man, he should be "stepping up more," and they complained when he often required their assistance moving heavy patients. But such complaints were based on stereotypes of men and women.

One fateful day, Julio had to move a heavy patient, and he called for another nurse to help him lift the patient. Julio's female supervisor intervened and ordered Julio to move the patient, without assistance. Julio explained that the patient was too heavy for him to move alone, and that he feared dropping her. This was a patient-safety issue.

But because he was a male nurse, he was expected to lift beyond his physical capabilities, while the female nurses were not—all because of stereotypes of men and women. This supervisor said, "do it now!" Julio reluctantly obeyed her command.

Predictably, Julio was injured when he tried to move the patient by himself. As he began to fall, he was able to prevent the patient from getting injured. But Julio hurt his shoulder and had to seek medical treatment.

Julio believed that his employer did not want to keep him around because of his work-place injuries, which were disabilities under the ADA. He also believed that his employer fired him because of gender stereotypes about males and females.

Julio turned to our office for help. We pursued claims against the employer, including disability discrimination under the ADA and gender discrimination under Title VII, based on gender stereotyping. The case was later resolved.

Sorry to break the bad news to you, but HR's fun and games might not be over after you are fired or forced to quit due to harassment, retaliation, and discrimination.

Long after you are gone, your employer might still have untruthful and disparaging things to say about you to future employers, making it hard for you to find another job.

Just take a look at "Jake's" profile (Profile No. 1) to see what happened to him! He had to move to a different state to find work, after the bad-mouthing he received from his employer. Word spreads fast—whether true or false!

If your former employer is giving false, negative references about you to prospective employers, it needs to stop! Give us a call at 775.853.9455 to see how we might help you.

Title I of the Americans with Disabilities Act (ADA) provides that no employer with 15 or more employees can discriminate against a qualified individual with a disability because of the employee's disability.

Here, the ADA's requirement that the person be a "qualified individual" means that the applicant who has a disability—like all other applicants—be able to meet the employer's job requirements, such as education, training, employment experience, skills, or licenses.

Thus, a disabled applicant must be able to perform the "essential functions" of the job—i.e., the fundamental duties—either on her own or with the help of "reasonable accommodation" from the employer. But an employer does not have to provide an unreasonable accommodation. An unreasonable accommodation is one that will cause "undue hardship" to the employer, which means "significant difficulty or expense."

Two disability scenarios arise in the workplace that can implicate employer violations of the ADA:

Some pre-existing disabilities are obvious, and some are not. For either type, the ADA prohibits employers from asking a job applicant questions about such disabilities, before making a job offer—i.e., during the pre-offer period. This rule is so strict that employers cannot even ask indirect questions that are likely to reveal the existence of a disability.

However, after a job offer has been made, an employer can condition the offer on the prospective employee passing a required medical examination. But the employer can only do this if all entering employees for that job category have to submit to the medical examination.

After such medical examinations, employers cannot reject prospective employees based on information about their disabilities revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business.

Once an applicant has been hired and has started work, an employer cannot require that the worker take a medical examination. As well the employer cannot ask questions about a worker's disability unless they are related to the job and necessary for conducting the employer's business.

However, employers may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that administer such laws. Importantly, employers must keep results of all medical examinations confidential, and maintained in separate medical files.

Some disabilities are not pre-existing, but arise or manifest after one becomes employed. Employers who are motivated to get rid of an employee for such newly-discovered disabilities often violate the ADA.

And never underestimate the debilitating nature of workplace injuries. Injuries at work often give rise to worker's-compensation claims. Worker's-compensation-claim injuries can also be disabilities under the ADA.

Keep that in mind, if your employer suddenly fires you after a workplace injury!

Look at the Profiles of Discrimination on this website for "Jake" and "Julio." Their ADA disabilities arose suddenly, from workplace injuries. "Jake" injured his back, and "Julio" injured his shoulder. Their employers apparently didn't want to keep them around, after they became disabled. They were summarily fired under a pretext, after they became injured. If you were injured at work and then later fired, your employer might have violated the ADA. Give us a call at 775.853.9455 to discuss this more.

Some pre-existing disabilities might require ongoing medical treatment after one becomes employed. For example, a person with a blood condition might require routine doctor visits, or a diabetic might need to step away from her workstation to take insulin on a daily basis. In both of these examples, the employee might need an employer accommodation of taking time off of work—for example, two hours a week, to see a doctor, or twice a day for 5 minutes, to take insulin.

Other pre-existing disabilities can lie dormant and flare up after one becomes employed. For example, an employee's skin cancer might have been in remission for the first three years of her employment, but suddenly a skin growth appears that suggests that cancer has returned. In such a situation, the employee might request unpaid time off from work for a biopsy, surgery, and recuperation—say 3 weeks—but an employer might refuse the request and threaten to fire the employee for doing so.

Absent such an accommodation being unreasonable, the employee would have the right to take such unpaid medical leave—even if the worker had no accrued vacation time or FMLA time available.

Take a look at the profiles of "Shawna" and "Milo" on this website. Their pre-existing disabilities only became an issue after they were employed. "Shawna" had a life-threatening allergy, that, if triggered, could require hospitalization. "Milo" had a mood-disorder that required him to take medication.

"Shawna's" employer interfered with her ability to bring her inhaler and medication to work. "Milo's" supervisor took adverse actions against him, based on his mental impairments. So, "Shawna" and "Milo's" claims were based, in part, on violations of the ADA, relating to their pre-existing disabilities that created issues after they were on the job.

The point is that ADA discrimination can happen to employees, not merely job applicants. Either way, don't be a victim to ADA discrimination. If your rights are being violated, give us a call at 775.853.9455.

So these types of situations, where an employer refuses to allow a worker to take unpaid medical leave is one example of an employer's failure to accommodate a disability.

Other examples of an employer's failure to accommodate include an employer's refusal to improve the lighting at a work station for a sight-impaired individual, or an employer's refusal to modify a work-station area to allow more room for a wheel-chair-bound worker to maneuver.

As discussed in the Pregnancy Law section of this website, disabilities relating to pregnancy must also be accommodated.

If your employer is refusing to reasonably accommodate your disability, or if your employer is taking some form of adverse action against you,based on your disability, give us a call at 775.853.9455.

To get a better understanding of what "adverse action" means, please see the section on this website, entitled "Adverse Action."

Keep in mind that you don't have to be fired to invoke your rights under the ADA. Instead, you have rights against "adverse actions."

The ADA prohibits employers from retaliating against an employee for seeking an accommodation under the ADA, opposing an employer practice that is unlawful under the ADA, or for cooperating in an investigation against an employer for an alleged violation of the ADA.

One Research Study, for example, showed that human-brain scans indicated that the "pleasure-centers" of the brain "lit up," when one exacted revenge on another. We might apply that theory of "sweet revenge" to the employment setting.

Think about it. Does your boss like to be told what to do? By a subordinate like you? Sometimes, bosses don't like to be bossed around—that is why they wanted to be bosses in the first place.

Sometimes employers don't like workers making requests for a disability accommodation. Sometimes they don't like workers complaining that the employer's practices and work environment do not comply with the ADA.

Some employers don't like employees defending the rights of other workers who are disabled. But such thoughts conflict with the law because providing reasonable accommodations to disabled workers is required under the ADA.

As well, the ADA protects workers who complain about non-compliance with the ADA or stick up for the rights of disbled workers.

So, some employers retaliate against such workers, to send a message: don't trouble us with your requests for accommodation, complaints of our non-compliance, or rabble-rousing for the cause of others who are disabled. But employers do so at their own peril. If a jury concludes that an employer had such motivations, it could issue a costly verdict against the employer under the ADA.

Juries can see through the faked efforts of employers who build up phony personnel files against such workers—which can include dubious or vague write-ups, suddenly-poor-performance evaluations, and weird performance-improvement plans. Sound familiar? Juries can figure out that faked reasons for punishing a worker were merely a cover or pretext aimed to disguise unlawful ADA retaliation.

Employers who retaliate against workers dig two graves; yours and theirs. While your grave is dug first—when they punish you—their grave is dug later—in a court of law. But only if you protect your rights! Don't let unlawful retaliation stand. If you're having these types of problems, please give us a call, at 775.853.9455.

Title VII of the Civil Rights Act of 1964 provides that no employer with 15 or more employees can discriminate against a job applicant or an employee, on the basis of his or her gender (including sexual orientation, i.e., stereotyping by gender), race, color, religion, or national origin.

Quid-pro-quo is a Latin phrase which means "something for something."

The threat or promise, stated or implied, is that the subordinate will avoid some adverse action (like being fired) or gain some benefit (like being promoted), if the subordinate subjects herself or himself to sexual activity with the supervisor.

The sexual activity need not involve actual, physical contact, but can take the form of sex-talk, for the purpose of gratifying the supervisor. Such behavior can be in person, on the phone, or through messages.

Employers cannot retaliate against an employee for opposing employer practices that are unlawful under Title VII of the Civil Rights Act, or for cooperating in an investigation against the employer for violations of Title VII of the Civil Rights Act.

As we see in Profile No. 2 on this website, Dr. Ko was fired when he cooperated in an investigation of a racial-discrimination claim filed by a co-worker. This gave rise to a charge of unlawful retaliation against the employer by Dr. Ko. Thus, the employer had to deal with two claims—the underlying racial-discrimination claim of the co-worker and Dr. Ko's retaliation claim.

Let us try to help you. If you think your rights under Title VII of the Civil Rights Act have been violated, talk to us about what is going on. We're just a call away at 775.853.9455.

If you are a member of the Uniformed Services, thank you for your service! If you had to leave your civilian job, due to the activation of your military service, you may have rights protected under the Uniformed Services Employment & Re-employment Act of 1994 ("USERRA").

If USERRA applies in your case, an employer cannot take adverse action against you because of your status as a past or present member of the Uniformed Services.

If you're having these types of problems, give us a call at 775.853.9455. Let us fight to take back your job!

According to a Report from the Population Reference Bureau, the number of Americans aged 65 and older is projected to more than double, from 46 million in 2016, to over 98 million by 2060, and the 65-and-older age group’s share of the total population will rise from 15 percent to nearly 24 percent. Age discrimination is unlawful not only at age 65, but at age 40.

The ADEA is the Age Discrimination in Employment Act. It provides that no employer with 20 or more employees can discriminate against a job applicant or an employee, on the basis of his or her Age over 40. Such adverse actions include more than not getting hired or being fired.

Adverse actions are defined as those that materially affect the compensation, terms, conditions, or privileges of employment.

This can include: being "laid off"; being demoted or not being promoted; not being trained; being reassigned to a different job or work site, and having your pay cut.

Retaliation is also prohibited under the ADEA. Employers can't punish an employee for opposing an employer's age-discrimination practices or for cooperating in an investigation against the employer for violations of the ADEA.

If you think your ADEA rights are being violated, give us a call to discuss how we might help you. Call us at 775.853.9455.