I would like to keep my job, but I might have to sue you...
January 23, 2013 3:44 PM   Subscribe

What are best practices for navigating an employment situation that maybe is heading in the direction of filing a complaint with an EEO commission?

This question is for lawyers, employers, employees, whatever. It's in the US.

I am facing an increasingly difficult situation at my work that is leading to getting discipline points and maybe losing my job.

This situation is EEO related I think because of a refusal to grant accommodations for disability. There are lots of complications: the disability is a mental health thing, I work for the government, I'm a union member, my agency's lawyer already knows all about it, my union knows nothing, I don't have a lawyer of my own and I can't afford one.

The strategy of do whatever you can without the accommodations hasn't worked out. The result of that strategy has been me breaking rules (little ones, not on purpose, because of symptoms, my boss knows all of that) and now my boss is really pushing about the rules hard. But I have a few weeks, I think, before things get really bad. Maybe. Probably a month or two before I could lose my job completely.

So do I tell the union? What do I tell them? I don't think they understand anything about disability laws and I don't see anything about unions on the EEO website. If they have a hearing at my work there's going to be a human resources mediator there, but I think he only asks about the facts of the thing they're giving you points for, not for extra information. Do i bring up the accommodations request at that hearing? Should I talk to my agency's EEO person first? Is it bad to not warn my boss that I'm going to bring this up with the mediator? Should I tell the mediator in advance?

And how do you be professional in a situation where you might be suing and people are recording everything and nobody trusts anyone anymore? I want to be nice and I want to keep my job. I want to be able to have good recommendations. I am good at my job - except for little things on the edges. Please trust me that I am not doing anything illegal or dangerous or disrupting things. I've seen articles about court cases that talk about the rules I have trouble with and I'm pretty sure I have a good case if I do say something to the hearing guy. If saying something is the right thing to do.

I can also take answers to this question via this email address. Or give more details if you need that. Also if you know of another question like this that was answered I couldn't find any of them.
posted by anonymous to Law & Government (5 answers total)
 
You really need to get your own lawyer, rather than depending on the union or your employer's lawyers. Details will vary depending on which country you're in (I assume the US), which state, and even which government agency and which union contract. Finding a lawyer is intimidating, but you should be able to track down somebody who represents employees in workplace disputes via Google or a site like lawyers.com, and your initial consultation should be free and should outline what kind of issues and expenses are involved in addressing your situation (and protecting yourself).
posted by croutonsupafreak at 3:54 PM on January 23, 2013


You definitely need a lawyer, and quickly. Lots of employment discrimination and MSPB claims have a short statute of limitations, and you risk missing deadlines.
posted by mercredi at 4:08 PM on January 23, 2013


Here are some steps you want to take:

1. Make sure you are actually disabled within the meaning of the law. Differing state and federal laws on disability have slightly different definitions of what it means to be disabled. For example, under federal law, a disability must substantially impair a major life activity. There is an entire body of law (regulations, agency determinations, cases) out there that clarify what a "major life activity" is and when it is substantially impaired. State laws may define this differently depending on your jurisdiction. Likewise, you should have a medical professional evaluate and diagnose you. You say that your disability is related to mental health, so you want to prevent a situation where your employer can say, "Well how were we to know she was actually disabled? She told us that she had this mental thing, but we never saw any proof of that." (It isn't to say that your case is sunk without this, but it will go a long way toward making your case better).

2. Always make sure you are putting the ball in the employer's court to accommodate you. You and your employer are supposed to be engaging in something called the "interactive process," which is a shorthand way of explaining that you and your employer are supposed to work together to find an accommodation that works. You are not entitled to the accommodation that you like the most, you are only entitled to an accommodation that is reasonable and allows you to perform the job's essential functions. So be sure you are not just rejecting accommodations without proposing alternatives that will work even better than what is being offered. Again, even if you think your alternatives are better, you're not necessarily entitled to them. But a key here is to keep shoving this back in your employer's lap, because you don't want to be the party that walked away from the interactive process.

3. Know what the essential functions of your job are. The reasonable accommodation must allow you to perform these functions. Ask what they are.

4. Your union is pretty much useless here, and helping you with an accommodation issue is very likely outside the scope of their obligation to you. However, if you're being disciplined you should utilize the union's grievance procedure if one is available to you.

5. When you have conversations with your supervisors about your situation, summarize the conversations afterwards in written form. You will be asked to turn these over later, so just stick to the facts, don't editorialize or embellish. But these will be helpful to you when your claim is being investigated and later if you sue.

6. Would taking medical leave help alleviate some of your health issues? You may be able to take intermittent FMLA or other leave, or a longer period if needed. Leave can also be a form of accommodation.

7. If you have a disciplinary hearing (that's what the hearing you're talking about is, I guess?) yes, you need to bring up these disability issues you're having.

8. I don't have pointers on how to be professional other than to say that you must keep your cool and remain professional. Being unprofessional will irreperably harm your chances of keeping your job and will undermine your claims if you want to bring a suit later.

9. Quitting will harm your legal case. There may be reasons you want to quit instead waiting to get fired, but just know that your legal case will be stronger if you are fired instead of if you resign. Don't, of course, help your employer by giving them easy reasons to fire you, obviously.

10. It cannot be understated how much having a lawyer at this stage will help you. A letter from your lawyer to the employer asking about accommodation will put enormous pressure on your employer. This is a good investment. You will probably have to pay your lawyer an hourly rate for this, though.
posted by MoonOrb at 4:32 PM on January 23, 2013 [3 favorites]


This situation is EEO related I think because of a refusal to grant accommodations for disability. There are lots of complications: the disability is a mental health thing

Then you may have a misunderstanding about what constitutes "disability" within the scope of the ADA. The 2008 amendments and applicable regulations have radically expanded who can be considered "disabled" under the law, but it's still a non-trivial matter to be recognized as "disabled." Further, even if you do have a qualifying disability, employers do not have to grant any accommodation that you'd like, but only those accommodations which are "reasonable."

The core question is whether you are capable of performing your assigned tasks if you are provided "reasonable" accommodations. Your employer does not need to modify your job description or exempt you from achieving the results you were hired to achieve. But they are required to be flexible about the circumstances of your work environment.

Take nurses for example. Nurses are basically on their feet for eight to twelve hours at a stretch. They need to be able to get around quickly, especially on a floor where medical emergencies occur with some regularity. A nurse who came down with a condition that made it difficult for her to walk could be reasonably accommodated by permitting that nurse to sit whenever possible, e.g., at the nurses station, while reviewing charts, etc. But the provision of a mobility scooter would (1) impair her ability to get around as quickly as required, and (2) be a major inconvenience to everyone else on the floor. So if it got the point that the only way she could get around was in a scooter or wheelchair, we'd have a problem. Permitting her to use a stool? Reasonable accommodation. Providing a wheelchair or scooter? Probably not. So if the a nurse finds that she can't walk, she may be forced to choose between transferring to a job within the organization that doesn't require her to walk very much--e.g. some kind of back-office administrative job--or losing her job. The hospital is not required to continue to employ someone who cannot perform the required tasks even with reasonable accommodation.

But we're talking about mental health. Say you're taking a medication which requires you to pick up a prescription every month, in person, during normal business hours. Permitting you to take one morning off a month to pick that up and letting you make up the rest of the hours that week would probably be a reasonable accommodation. You get all your work done, your employer lets you do what you need to manage your condition. But asking for the ability to call off on demand whenever your condition makes it hard to function would probably not be a reasonable accommodation. Having a disability is not suddenly a way of gaining an extra week of sick days. Likewise, disabilities do not justify rampant absenteeism, and failing to show up for work is grounds for adverse employment action, disabilities be damned.

All of which to say that analyzing disability discrimination claims under the ADA and related amendments is an incredibly fact-intensive proposition. Obviously, I don't have access to all the facts. Which makes the following really important:

I don't have a lawyer of my own and I can't afford one.

Wrong. Plaintiff-side employment attorneys generally work on what's called "contingency." They get paid if you win, and they generally take about a third of your winnings. So you don't need any money up front. You absolutely need a lawyer here. You do not understand the law, and you need to be represented by someone who does.

There's actually a MeFite who's a federal employment litigation attorney. He may not be able to represent you, but he can certainly point you in the right direction. I'm MeMailing him about this.

Look: you're a unionized federal employee. The odds that a federal employer is acting in violation of federal law strike me as being low. But they're high enough to give people like the MeFite I'm contacting a living. So get yourself a lawyer.
posted by valkyryn at 4:39 PM on January 23, 2013 [3 favorites]


I'm a federal employment lawyer, the one who Valkyrn talked about. There are resources. Please MeMail me so we can find you someone to represent you.
posted by Ironmouth at 11:55 AM on January 24, 2013


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