Employment Discrimination FAQ
ANSWERS TO QUESTIONS FOR THE GENERAL PUBLIC
ROXANNE’S RULES FOR AVOIDING SEXUAL HARASSMENT:
- If you would not say it to your mother, do not say it to your co-worker.
- If you would not do it with your daughter in the room, don’t do it on the job.
- If you don’t want to see it in detail on the front page of the paper, don’t do it, don’t say it.
Q: What creates a hostile environment?
A: According to the 4th circuit court of appeals, a workplace which is permeated with discriminatory intimidation, ridicule, and insult, which is sufficiently severe or pervasive to alter the worker’s conditions of employment and create an abusive working relationship. Factors that the courts use to determine whether or not the environment is sufficiently hostile to justify bringing a lawsuit include the following kinds of things:
- The frequency of the conduct,
- The severity of the conduct,
- Whether the conduct is physical or verbal,
- Whether it unreasonably interferes with a worker’s performance, and
- The effect of the conduct on its victims.
The harassment must be objectively abusive and the worker who files the complaint also must experience it as abusive. Only workers who are in a hostile environment based on their race, color, creed, sex, place of national origin, age, or condition of disability, can bring a civil rights complaint. Workers who are being mistreated for other reasons, whether fair or unfair, do not have the option of bringing a lawsuit. They can seek assistance through internal company processes or quit.
Q: What is illegal discrimination?
A: Illegal discrimination is making a difference in treatment, at least in part, because of race, color, creed, sex, age, place of national origin, or condition of disability or pregnancy.
Q: My employer has treated me unfairly. My supervisor criticizes me in front of other workers, embarrasses me, shouts at me and loads work on me. I believe I am in a hostile environment. Do I have a case?
A: No. Employers are generally under no obligation to treat their workers fairly. If the adverse treatment is based on some forbidden factor like your race, sex or age, it is illegal. Of course, if you are a union member, you should contact your union representative for help.
Q: But it’s making me depressed and sick. I cry all the time and when it is time to go to work, I get chest pains. What shall I do?
A: Go to the doctor. If your work is making you sick, you may be entitled to workers’ compensation. This is not the kind of work we do, but we can refer you to a lawyer who can help you evaluate your workers’ compensation case.
Q: But if I file for workers’ compensation, my employer will find a reason to fire me. Is there any protection available if I get fired for using workers’ compensation benefits?
A: Yes. It is illegal to retaliate against someone for making a valid workers’ compensation claim.
Q: I just got fired. Many other people did what I did and didn’t get fired. Some people did worse things and didn’t get fired. It’s just not fair. Do I have a case?
A: No. Treating people unfairly is not illegal. An employer can fire workers for any reason or no reason. Iowa is an at-will state, which means that, just as you can quit whenever you want to, the employer can fire you whenever it wants to. It doesn’t need a good reason. It doesn’t have to be fair. There are a few very limited exceptions to the at-will employment rule. If you are fired, and a part of the reason is a forbidden factor, you may have an employment discrimination case. The factors an employer cannot use to fire you are your race, your national origin, your sex, your age, your condition of disability, if it can be accommodated, and your religion.
If you have a contract that guarantees your employment, you can sue for breach of contract. If your employer has made untrue statements about you that are harmful, you may have a claim for defamation. If the treatment you received violates all the principles of a civilized society, and has caused you very severe emotional distress, you may have a claim for tortious infliction of severe emotional distress. Such a claim is a very difficult case to make. If you are employed by the government, you may have some special rights under the Constitution.
If you are fired for refusing to break the law, you may be able to sue for a violation of public policy. If you are fired because you used the Family and Medical Leave Act or because you were about to get additional pension or other benefits, your rights under Federal ERISA Law may have been violated.
Q: My supervisor wants me to put false numbers on my records. He says we have to protect the company from the feds. I already did it once, but it made me so upset, I couldn’t sleep. Shall I do it again?
A: NO! NO! NO! Never falsify a record, no matter who tells you to do it. You may be the one ultimately blamed. You may be the one who ends up in trouble or in prison. Report your supervisor up the chain of command. Keep very complete records of who you tell, when, and what they say. You may tape record your conversations with others, but not secretly. Take your tape recorder, put it in plain sight, press the record button, and say, I am taping my conversation with John Doe on July 10, 2000, so we will both have a complete and accurate record of what was said. Don’t be hostile or accusatory. Just state the facts as completely as you can and ask for help. If you get fired and you might you will need two things, one, your own careful documentation of your efforts to prevent false records being made and the law being violated, and two, proof of the actual numbers and the correct records. Be very careful not to take any records from your employer that you are not entitled to have. You may store copies of such documents in a computer file, which only you can access by complicated secret password. Then when you need them, they will still be there, but you will not have stolen them.