Other Discrimination Archives

Military? – Special Civilian Job Rights are Yours

Published on January 31st, 2017 by Alan L. Sklover

“ For those who have fought for it,
life has a flavor the protected will never know.”

– Author Unknown

ACTUAL CASE HISTORY: Are you or a loved one a member of the U.S. Armed Forces? National Guard? Reserves? Being called up for military service or training? Considering signing up for service or training?

If so, there is a U.S. federal law that you should know about. It provides very valuable employment-related legal rights to members of the armed forces and other uniformed services who are absent from work due to military service or training. The name of the law is the Uniformed Services Employment and Reemployment Rights Act, commonly called “USERRA.” USERRA seeks to minimize disruption to the lives of service members by ensuring that they are able to retain civilian employment and benefits while serving their country.

Simply put, USERRA provides those who perform military service (a) continuation of certain benefits during their military service, including health care coverage, (b) re-employment rights to employees of civilian employers who are returning from military service or military training, and (c) certain rights and benefits upon return, including seniority.

The idea underlying the USERRA law is to ensure that serving your country is as least damaging to your career as possible, while balancing the varied interests of the military, the employee and the civilian employer.

LESSON TO LEARN: The United States holds its military, including its members of its military and all uniformed services, in high esteem. Not only does the U.S. each year spend more on its military budget than do the next 17 countries combined, but it does a lot to care for service people during and after they serve.

One thing the U.S. does for its military service members that many are not aware of is that it gives them legal rights to (a) continued benefits during their military service, (b) re-employment in their civilian jobs after their service, and (c) no loss of accrued pension time, tenure and the like after their military service.

Those who train and/or serve in the uniformed services, as well as their loved ones, should take the time to understand these very valuable legal rights. They are far and away above any such rights given to others in American society.
The three most important things that you need to understand and take away from the Q’s and A’s below are:

    (1) NOTICE: It is important that you give written pre-departure notice, and timely pre-return notice, as well, to your employer;
    (2) RECORDS: Service members are advised to do all they can to maintain military records, including signed orders, that may be helpful in asserting USERRA rights; and
    (3) RETURN TIME: Depending on the length of your absence for service time or training, the service member will be required to report back to work within a specified period of time.

WHAT YOU CAN DO: Take the time to understand the legal rights provided to members of the U.S. uniformed services, just in case someone you know and care about may be affected. The following are the most frequently asked questions about USERRA, and the answers, including who is eligible, what USERRA rights are, and how the law works:
Read the rest of this blog post »

“Pregnancy: Rights under Disability, FMLA and Discrimination laws.”

Published on October 13th, 2015 by Alan L. Sklover

Question: I am pregnant and my doctor wants me to work just 25 hours a week, but my employer told me that they need someone who can work 40 hours a week. So, they gave me separation papers to sign.

Is that legal? Do they have to hire me back after I have my baby?

Palmyra, Maine

Answer: Dear Larisa: Pregnancy and pregnant women are given a special status in our society and our laws, and both are highly protected. In so many cases, like yours, however, that protection is surely needed, because so many employers view pregnancy as an inconvenience for them.

You may want to try to keep your job, or enhance your severance, by asserting your rights before signing the separation papers. Here are my thoughts:
Read the rest of this blog post »

“Is My Employment Discrimination Case Strong? – Here’s How to Tell”

Published on March 24th, 2015 by Alan L. Sklover

“The moment a little boy is concerned with which is a jay and which is a sparrow, he can no longer hear birds sing.”

– Eric Berne

ACTUAL “CASE HISTORIES: One of the questions most frequently asked of employment lawyers – and of this blog – is this: “Do I have a strong employment discrimination case?” The reason seems obvious: so many people feel aggrieved at work, and so many people feel that, just maybe, the cause of the problem is “something” about them. What “something?” Perhaps their (a) age, (b) race, (c) gender, (d) disability, (e) pregnancy, (f) religion, (g) sexual orientation, (h) national origin, (i) genetic background, or other “protected classification” under federal, state and local laws.

To answer that question takes familiarity with the facts of the possible claim. Just as a doctor can know all there is to know about medicine, he or she cannot make a good diagnosis without knowing the patient. That takes blood tests, ex-rays, and the like. So, too, it is with lawyers: the “facts” of the case make it a strong case or a weak case. But you may not be a lawyer. Do you need a lawyer to decide if your employment discrimination case is strong or weak? Not in my opinion. Why not?

You know best the facts, events and circumstances of what happened to you, and how it compares with what happened to others. You know best the individuals concerned, and have a good sense of their intentions toward you. You know best the demographic makeup of those you work for and work with. All you need is a way to put those facts, events and circumstances into a framework of understanding. You can, with the right tools, determine whether you have a strong discrimination case.

And, so, in this newsletter we provide you with the way to determine – yourself – whether you have a strong case of discrimination in the way you are treated in your workplace. Here are the tools you need.

LESSON TO LEARN: Employment discrimination cases are quite common in our society, and seemingly more common as time goes by. That seems to be a result of three phenomena: (i) a strong societal determination to make employment opportunity a “level playing field” so that no one is excluded or given less a chance than others; (ii) a rather wide-ranging set of federal, state and municipal laws that make it fairly easy to raise a discrimination claim or legal case; and (iii) increasingly tough competition among employees for a limited number of jobs.

In very general terms, the law is comprised of (a) a set of rules, (b) nearly always borne of common experience and common sense, (c) intended to encourage us all to be honest and fair to each other. What many lawyers would have you believe – namely, that the law is (i) hugely complicated, (ii) incapable of being understood by most people, and (iii) warrants being paid a lot of money for sharing how it works – is just not true. To the contrary, there is a lot you can do for yourself.

This is especially important regarding employment discrimination law, because so many people have daily concerns about it, and have a yearning to understand it. And, too, because so many people unwittingly bring forth weak employment discrimination claims and cases, often with the encouragement of lawyers. So, in this newsletter we do our best to help. It’s better to know you have a strong employment discrimination case – or a weak one – before you raise a claim or hire an attorney.

Here’s how you can do that.

WHAT YOU CAN DO: If you want a good idea of whether you have a strong employment discrimination case or claim, here is how you can help yourself make that determination:
Read the rest of this blog post »

“Is it ‘reverse discrimination’ if some people can use racist words, but some people can’t?”

Published on March 6th, 2012 by Alan L Sklover

Question: Dear Mr. Sklover, I was terminated for saying “N—A please” to an African American co-worker of mine. I am Asian. During the investigation I notified my management that the phrase that I used is often used by 90% of my colleagues, some of whom are black, and others that are not. In the end, they decided that I posed too great a risk of liability to the company, and decided that the word I used was the same as the N-word ending in ER.

In the other girl’s statement she said that it was OK for other members of the team who were African American to use both the word ending in A and the one ending in ER, but that I could not say it.

Do I have grounds for claiming reverse discrimination against me?

New York, New York

Answer: Dear P.K., Your question illustrates a sensitive issue but one that does need to be addressed to our best abilities:      

1. I don’t believe what happened to you was illegal “discrimination” because you were not (a) denied a job or job-related benefit by an employer (b) based on your own age, gender, race, or other protected category. The law says that illegal discrimination is a denial of the opportunities or benefits of employment on the basis of someone’s age, gender, race, or certain other protected categories. (a) You were terminated not because someone didn’t like your own age, gender, race or other “protected category.” (b) And you were not denied any “employment benefit or opportunity.” It just can’t be said that saying either of those two words is either an “employment opportunity” or a “benefit of employment.” So, what happened to you is not any kind of “discrimination,” whether direct or reverse.

2. Rather, I think you were terminated because of your conduct, and the likelihood you would repeat it in the future. I don’t think your use of those words was a kind of discrimination, but rather a kind of bad behavior, that is, saying things that many reasonable people find unreasonably offensive, not showing that you are sorry, and not assuring your employer that it will not happen again. To use your own words, your employer decided that you “posed too great a risk of liability,” because you might say that again. From the employer’s point of view, if they permitted you to stay on as an employee, and you continued to use those words, your employer was more than likely to be the subject of a lawsuit against it for permitting racist behavior and, in that way, not permitting African Americans the right to work in a non-racist environment.    

3. It’s just not a defense to say “But they do it, too.” If you are driving 85 miles an hour in a 55 mile per hour zone, it is not a defense to say, “Officer, I don’t deserve a ticket, because other drivers were going 85 miles per hour, too.” Whether your employer permits or does not permit African Americans or other people to say those words, your saying those words is hurtful to some, risky to your employer, and at a very minimum, distracting to everyone. You are responsible for your conduct, and no one else’s. While “unequal enforcement” of the rules could be a sign of racist policies, from the facts presented in your letter, no one complained about anyone else saying those words, so I don’t see – at least from what you’ve written – “unequal enforcement.”    

4. I don’t think anyone should be allowed to say racist words at work, but the truth is we permit some flexibility in enforcing every rule. As an employer, myself, I would not tolerate those words being said by any of my employees, no matter their race. It could hurt the feelings of so many people: people of a certain race, people who are married to people of a certain race, customers of a certain race, or anyone for that matter.

However, we all recognize that a degree of flexibility is given to some people some times that is not given equally to all. For example, Jewish people can sometimes make jokes about Jewish people and not seem offensive to other Jewish people, and the same goes for every religious, gender, racial, ethnic or other group. Likewise, if an airline pilot uses the word “bomb” when speaking with another airline pilot, chances are no one will arrest her. But if an airline passenger jokes about “bombs” during takeoff, there’s a better chance he or she will be arrested and taken off the plane. 100% fair? No. 100% human? Pretty much, yes.     

5. In matters of prejudice, no one is perfect, but we all have to be as careful, as sensitive, and as understanding as we can be. P.K., no one is pure in their heart and soul; we are all imperfect in so many ways. In as diverse a  society as we live in, we all need to try our best to be as respectful and understanding as we can, in order to get along as best we can. It sounds to me like your greatest “offense” was that you did not show remorse for your unintended offense, or were appreciative of the sensitivity we must all show each other, or an honest dedication to not offend anyone again in that way.

My own concern is that you will again probably lose a job on this basis unless you “get the right message,” which is to do all you can to not offend, and if you do make a mistake, to do all you can to make amends and assure you won’t do it again. My own hope is that this experience has given you that “message,” and that you’ll heed it in the future, to your benefit and the benefit of those around you.

P.K., thanks for writing in. If this has been helpful, I am glad, for these are sensitive issues, these are sensitive times, and the world needs people of good will and understanding more than ever.  

My Best to You,
Al Sklover

P.S: Our Model Letters help people stand up for themselves at work. For a friend facing Job Loss, Severance, Resignation, Bully Boss, Performance Improvement Plan, or other workplace problem, this is a nice “Helping Hand Gift for a Friend in Need.” Simply [click here] to view our list.

 Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“Does this sound like I have a case of discrimination?”

Published on November 21st, 2010 by Alan L Sklover

Question: I am an African American woman. Recently, my boss has stated some very negative things about my race, right to my face. For example, she stated that she feels that black women emasculate their men by being overly aggressive. I objected to this gross racial generalization.

I went through proper procedures, and all “heck” broke loose. First, management tried to dissuade me from filing a complaint. When that didn’t work, certain high-level employees tried to intimidate me. When that didn’t work, one of the Human Resources managers came to our offices and investigated what happened. The investigation didn’t come to any conclusion.

Then they tried to set me up by placing me on a “final warning.” Instead of the “final warning” being handled confidentially, as company policy requires it to be, my boss told people in our office and even outside our company what happened.

I’ve been employed by this company for nearly three years, and have all excellent performance reviews – well, at least until I stood up and objected.

I am thinking of filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) and our local Labor Board. Any thoughts?   

         Charlotte, North Carolina

Answer: T.T., from what you have told me, it would seem you have a good case of illegal retaliation in response to your complaint of race discrimination, under both state and federal laws. I am not sure you have a case for race discrimination, which is different than retaliation. Let me share with you my thinking:

First, illegal discrimination and illegal retaliation for objecting to discrimination, are two separate (though related) violations of law. It’s like speeding and driving while drinking: they may be related, but they are not the same thing. And just like speeding and driving while drinking, you can be found innocent of one, but guilty of the other. In other words, a person could be found not to have discriminated, but they could be found guilty of retaliating against an employee who – even incorrectly – reported discrimination.

Second, from the words that came out of your boss’s mouth, she seems to have a negative view of African American women, and a troubling need to tell you about it. That would suggest to me that she may well, indeed, not like you at least in part because of your race. However, from what you have reported, this was an isolated, single mention of your boss’s view of African American women. At least from what you wrote, I see no long-term, continual course of such conduct. Your past good reviews suggests that your boss has found you to be an excellent performer. A single comment does not, in itself, make a case of race discrimination in employment.

Third, since you received excellent performance reviews in the past, and a decidedly negative one now – after you made an objection to the open expression of racial animosity – there would seem to be illegal retaliation here. Retaliation in the law requires the presence of three distinct elements: (1) engaging in a legally protected activity (here, your complaints about the racially hostile language); (2) a negative employment action (here, your final warning); and (3) a “causal link” between number (1) and number (2) (here, it seems that your sudden poor rating was a result of your complaint.) 

For these reasons, I think that you have, at the least, a “prima facie” (Latin words for “at first view, before full investigation”) case of illegal retaliation. I urge you to file a formal complaint with the federal E.E.O.C. as well with the North Carolina Department of Labor “Employment Discrimination Bureau,” or “EDB.” Both agencies can perform the full investigation your facts and circumstances warrant. You can find assistance at www.nclabor.com/edb.

Discrimination is rooted in ignorance. We should not deny it, or be intimidated by it, but rather confront it, head on, with both respect and determination. It is the only way to defeat it, and defeat it we must.

Retaliation for standing up and objecting to discrimination is, to my mind and in the law, a worse violation of the law. It is not rooted in ignorance, but rooted in intentional vengeance. It is doubly important to stand up against illegal retaliation.

I hope this helps you in your decision about what to do. If this has been helpful, please tell at least one or two friends about our blog . . . we would so very much appreciate that.

        Best, Al Sklover   

© 2010 Alan L. Sklover, All Rights Reserved.

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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