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.
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.
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
posted by mercredi at 4:08 PM on January 23, 2013
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]
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
posted by Ironmouth at 11:55 AM on January 24, 2013
This thread is closed to new comments.
posted by croutonsupafreak at 3:54 PM on January 23, 2013