How to Apply for Waiver of Trump Travel Ban

The Trump travel ban supposedly came with an opportunity to apply for a waiver, but how does one actually apply for it?

By Ilona Bray, J.D.

When Donald Trump signed the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States in 2017, banning foreign travel into the U.S. from various nations, it included a provision saying waivers would be granted on a case-by-case basis. Either a consular officer or or a Customs and Border Protection (CBP) official could, it said, make this discretionary decision. But how does one actually qualify or apply for it?

Who Qualifies for a Waiver of Travel Ban

To be eligible for a waiver, the applicants must demonstrate all of the following:

  • Undue hardship to the applicant would be caused if U.S. entry is denied. In other words, some unusual situation other than difficulty in the home country compels immediate travel and delaying issuance of the visa would defeat the purpose of the applicant’s trip. Note that “undue hardship” is less than the “extreme and unusual hardship” required for some immigration waivers.
  • The applicant’s entry to the U.S. would be in the U.S. national interest. This means that some U.S.-based person or entity would suffer hardship if the applicant could not travel until the travel ban is lifted.
  • The applicant’s entry to the U.S. would not pose a threat to U.S. national security or public safety. The DOS will check the applicant’s name against FBI and related databases, as well as check sources within countries where the applicant has lived.

With regard to the undue hardship criterion, a DOS letter of February 22, 2018 summarized that the applicant must “demonstrate to the satisfaction of the consular officer that an unusual situation exists that compels immediate travel,” such that delaying issuance of the visa would defeat the very purpose of that travel.

The same letter explained that for the requirement regarding the U.S. national interest, the applicant will need to show that “a U.S. person or entity would suffer hardship if the applicant could not travel” to the U.S until the travel ban is lifted.

The public safety portion of the waiver requirement will depend more on what the U.S. government turns up in various crime databases.

The Executive Order also offered examples of who might qualify for a waiver, such as people with:

  • previous U.S. admissions for continuous work or study
  • significant ties to the U.S.
  • significant business or professional obligations in the U.S.
  • close U.S. family members (spouse, children under age 21, or parents) would suffer undue hardship if the applicant was denied entry
  • emergency circumstances such as medical needs
  • jobs with the U.S. government or an international organization
  • landed Canadian immigrant status, applying for the visa from Canada, and
  • government sponsorship for an exchange program.

Practitioners report, however, that very few people actually get “cleared” for these waivers by the Department of State (DOS), and even fewer receive an actual grant thereafter.

What Is the Application Process for a Travel Ban Waiver?

No waiver form has been created to apply for this travel-ban waiver. The only good news about that is that no fee has been set to review one’s waiver request (as would be all but guaranteed if there were a form for it).

Basically, you will be expected to apply for the visa as normal, pay all the application fees, and apply for the waiver at your visa interview at a U.S. consulate in your home country.

(Attorneys have tried submitting waiver requests earlier in the process, such as when submitting the initial petition to U.S. Citizenship and Immigration Services (USCIS) or interacting with the National Visa Center, which is an intermediary between USCIS and the overseas consulate, but have had limited success with this.)

The consular officer who conducts the visa interview is not even obligated to accept written materials requesting the waiver. Applicants are allowed to simply “disclose” during their visa interview the reasons they believe they are waiver-eligible. No matter what, be ready to sum up your reason for requesting the waiver when talking to the officer.

Preparing Written Evidence to Support Your Waiver Request

If at all possible, however, prepare written materials explaining the reasons you merit a waiver and accompany that with supporting evidence.

Start by filling DOS Form DS-5535. Although it’s not necessarily required, it asks various relevant questions, so immigration attorneys have begun to regularly use it in this context.

Also prepare sworn declarations from you and any U.S.-based family members explaining eligibility for the waiver, including your immediate need for the visa and the hardship that would be caused if you were denied.

If the urgent need is based on a U.S. employment or academic relationship, also have the employer or school write a letter of explanation. An employer, for example, might mention the cost of recruiting someone new to replace you, or the lost business that would result (accompanied by, for example, copies of important business contracts for projects you are involved in).

Look for supporting materials from authoritative, unbiased sources. For example, if you are claiming a waiver based on emergency medical needs, you would want to include a statement from your doctor.

If claiming a waiver based on hardship to family in the U.S., you would need to provide copies of birth and marriage certificates proving the family relationship (if they’re not already in the immigration file under which you’re applying) and evidence of the nature of that hardship.

If difficult conditions in the home country are a factor, cite sources such as the DOS’s travel warnings. Tough country conditions won’t be enough for a waiver grant by themselves, but can be woven into a more specific, personal account of potential hardship.

If you have already made travel arrangements, include copies of the tickets and itineraries in your waiver request packet.

Copies of visas you have received from other countries as well as local police certificates can also be useful, as proof that you have been vetted and cleared by other countries, and present no security risk.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Trump is deciding who is American': how the new travel ban is tearing families apart

Trump travel ban

As six countries are added to the list of restrictions, Nigerian and Eritreans in the US say the ban is devastating their lives

Source: The Guardian

Sam Levin in Los Angeles @SamTLevin Email

Sun 16 Feb 2020 

It started out as a joyous day for Olumide. On 31 January, the 32-year-old Nigerian American learned in an email that the US was finally processing the visa applications of his wife and daughter in Nigeria.

Hours later, Donald Trump shattered their celebration, announcing that he was adding six countries to the travel ban, including Nigeria. The decision cuts off pathways to permanent US residency for Nigerians, throwing Olumide’s case into limbo at the final stage of the process. It leaves his wife and and 11-year-old girl stuck across an ocean with little hope of making it to the US.

“This is inhuman,” said Olumide, a systems analyst and US military veteran who served in Afghanistan and lives in Washington DC. He asked to use his middle name out of fear he might jeopardize his case. “As a soldier, I understand the need to protect the country. But to completely shut the doors … it’s just plain wrong.”

Millions of Africans now banned: ‘We are not criminals’

Trump’s January order builds on the 2017 travel ban that has continued to target five Muslim-majority countries, and significantly restricts permanent residency for nationals from Eritrea, Kyrgyzstan, Nigeria and Myanmar. It also blocks people from Tanzania and Sudan from obtaining green cards through the “diversity visa” lottery.

Just like the 2017 restrictions, it blocks permanent immigration from the targeted countries, making limited exceptions if applicants prove that denials would cause “undue hardship” and that granting them visas would support “national interest”.

The original ban already resulted in denied visas for more than 42,000 people, the majority from Iran. The addition of the new countries has doubled the number of Muslims targeted across the globe to roughly 320 million, advocates estimate. Roughly one-quarter of all Africans are now affected.

The restrictions now apply to 13 countries, including Nigeria, home to Africa’s largest population and economy. It cuts off countries where some are fleeing violence. Some estimate the new ban, which goes into effect on 21 February, could hinder more than 12,000 immigrants seeking to resettle in the US and reunite with family in the next year.

The restrictions are a signature component of Trump’s aggressive anti-immigrant agenda, which has included curbs on legal migration, a destruction of the American asylum system, an all-time low cap on refugees, expanded detention and mass deportations.

“Trump started out by scapegoating Muslims in 2017,” said Javeria Jamil, attorney with Asian Americans Advancing Justice’s Asian Law Caucus, who has been fielding calls from families affected by the new ban. “Now, it’s not just the Muslim ban. It has turned into an African ban.”

The latest major Trump resignations and firings

 The Trump administration has claimed that the ban, which blindsided some diplomats, is a national security measure, and that the added countries failed to meet US security and information-sharing standards.

But immigrant rights groups said the policy is a political maneuver amid Trump’s re-election campaign – and one that will have profound consequences.

“People are in turmoil,” said Audu Kadiri, a 43-year-old community organizer who left Nigeria in 2014. He had planned to bring his mother to the US, but the ban may make that impossible. The activist, who now lives in the Bronx, hasn’t yet told his mother about Trump’s order, because he doesn’t know how to break the news. “There is so much collateral damage, it’s hard to quantify.”

In Nigeria, Kadiri was an LGBTQ+ rights advocate who worked on HIV prevention and other human rights issues. He was forced to flee due to his activism and sought asylum in the US. It’s now unsafe for him to return to Nigeria, which is why he wants his 68-year-old mother to come to the US.

He hasn’t seen her since 2014 and, if Trump is re-elected, he fears it will be at least another five years before they reunite. She’ll probably miss the birth of his third child.

“Nigerians have contributed to the development of this country, like every immigrant community,” he said. “We are not criminals.”

Torn apart, with dwindling options

Before the January announcement, the Trump administration had already clamped down on travel from Africa, including hikes in visa fees, and new obstacles and increased denials for Nigerians seeking approval for short-term visits. The US further suspended visitor visas from Eritrea in 2017.

That means families have been fighting for years to use the dwindling avenues available to them to reunite, and for those who have invested significant time and money into the process, the sudden news of an outright ban was particularly brutal.

“There’s nothing you can do, and it makes you feel so helpless,” said Olumide, the veteran. Olumide arrived in the US from Nigeria when he was 10 years old. He met his wife in Nigeria in 2012 after he left the military, and the two got married last year.

US Citizenship and Immigration Services approved the petition for his wife and daughter in January, just before the announcement of the ban. But they don’t yet have their visas – and the ban may make it impossible to get them.

Olumide had hoped they would be starting their lives together in the US by now, and said he was pained by feelings of guilt: “I made promises to her.” The couple hasn’t fully processed the news, he added: “We don’t want to think about not being together.”

He noted that his daughter has typhoid and his wife has malaria, and he constantly fears for their health and safety.

Hana Mohamed, a 20-year-old student in San Diego, who grew up in Sudan, said she was eager for her grandparents to come to the US, especially so her grandmother could get medical care in California: “It’s just so sad and frustrating. They are getting older, and I want to see them before anything happens.”

Mohamed said it was difficult to accept that the US was banning large groups of Muslims in the name of safety while seeming to do little about the ongoing terror threat of American mass shootings: “It’s just so shocking that we have come to this day where a whole nation of people are getting discriminated against. Isn’t the purpose of the United States to stand up for everyone who is getting hurt and treat them right?”

Isn’t the purpose of the United States to stand up for everyone who is getting hurt and treat them right? Hana Mohamed

One Eritrean American who works as an engineer in Silicon Valley, and requested anonymity for fear of hurting his family’s case, has petitioned for his mother to come live with him in the US and was hoping she would soon get an interview date at the embassy. Then the new ban was unveiled.

“We’ve waited our turn. We’ve followed the law. I’m a tax-paying citizen contributing to the economy,” he said, noting that his mother is 69 years old and lives alone in Eritrea. “This is just pure evil.”

He said he felt Trump was implementing the ban as a “soundbite for the campaign” while disregarding that it would leave Eritreans like his mother with no options: “This was our only hope to get her here.”

For Eritreans, the ban comes as as the Trump administration has ramped up deportations of Eritrean asylum seekers, despite the US government’s own acknowledgment of the torture and arbitrary detention Eritreans are currently facing.

Abraham Zere, an Eritrean journalist who was granted asylum in the US and now lives in Ohio, said it seemed some Eritreans were reluctant to speak out about the ban and live in fear of potential repercussions from both governments: “People are scared to even discuss it.”

Zere’s own family is affected: his mother is still in Eritrea, separated from her children. She can’t even video chat with her family because of the poor internet in Eritrea, which means she never gets to see her granddaughter, an eight-year-old she hasn’t yet met, he said.

Some warn the ban may have life-or-death consequences. For queer and transgender migrants in the targeted countries, it could lead them to embark on perilous journeys to escape to the US as they run out of options, said Zack Mohamed, who is Somali American and a member of the Black LGBTQIA+ Migrant Project: “This is a big ‘not welcome’ sign in front of our faces.”

In response to questions about the impact on migrants fleeing violence, a US state department spokesperson said the ban was not meant to “limit the ability of an individual to seek asylum”, adding: “Our first priority remains national security. We continue to work with our dedicated consular officers in the field to identify and expedite those individuals with urgent travel needs.”

Asked about charges that the ban is discriminatory, the spokesperson said the restrictions are based on “nationality” and “visa category” and that “consular officers do not adjudicate based on religion”. The spokesperson said there were specific criteria to determine which countries are restricted and noted that Chad was on the original list but removed in 2018.

Fighting to end the ban

With the first travel ban upheld by the US supreme court, there are few recourses left to challenge the policy. Advocates are hoping a Democratic president will immediately repeal the ban and have also recently renewed the push for Congress to pass the No Ban Act, which would end the ban and prevent discriminatory immigration policies.

Until then, Trump will continue to use his executive power to try to redefine what it means to be a citizen, advocates warned.

“The president of the United States, the US government is explicitly trying to decide who gets to be an American,” said Eric Naing, who is Burmese American and works with Muslim Advocates, a group that has challenged the ban. His family would not have been able to come to the US if the ban on Myanmar had been in place. “He’s saying I shouldn’t be American. My parents shouldn’t be American. It’s deeply upsetting.”

Olumide noted that the ban was punishing countless American citizens like him: “It’s hurting the exact people you’re trying to protect.”

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Racial Inequality, at College and in the Workplace

White Americans still disproportionately outnumber their African American and Latino counterparts when it comes to obtaining good jobs, regardless of education they have obtained.

By 

Elin Johnson 

October 18, 2019

ISTOCKPHOTO.COM/HYEJIN KANG

new study released by Georgetown University in part refutes the notion that African American and Latinx minorities can improve their socioeconomic standing just by going to college.

According to the study, between 1991 and 2016, black and Latino Americans increased their likelihood of obtaining and maintaining a good job, but their white peers still disproportionately hold better jobs compared to their overall employment.

“It’s a pretty damning story all together, and it says that there’s a huge challenge ahead of us,” said Anthony Carnevale, a research professor at Georgetown and director of the university’s Center on Education and the Workforce, who is also a co-author of the study.

A good job as defined by the study is one that provides “family-sustaining earnings,” which translates to minimums of $35,000 annually for workers 25 to 44 and $45,000 for workers 45 to 64.

Regardless of education levels obtained, these racial disparities continue to exist. Diversity in higher education has made improvements over the years but is still not accessible to all, primarily due to cost. The National Center for Education Statistics found that in 2017, 41 percent of white young adults were enrolled in college, compared to 36 percent of black and Hispanic young adults. Additionally, for Americans over 25, 33 percent of whites have a bachelor’s degree, compared to 19 percent of blacks and 16 percent of Hispanics.

The study found that in 2016 the median wage of a good job for workers with a bachelor’s degree for whites was $75,000 compared to $65,000 for blacks and Latinos.

White workers are also paid more than black or Latinx workers in good jobs at every level of education received. College-educated whites have benefited the most from the increased demand for college-educated workers, said the study.

The study also found that in 2016 white workers held 77 percent of the good jobs despite only representing 69 percent of available job holders. Black workers had 10 percent of the good jobs out of 13 percent of the jobs they held, and Latinx workers had 13 percent of good jobs while holding 18 percent of all jobs. Also in the study findings was that black Americans have almost twice the unemployment rate of white Americans, and Latinos have about 1.5 times the unemployment rate of whites.

“We are a culture that keeps secrets from ourselves,” said Carnevale regarding the bias that exists in hiring processes.

Additional explanations for the lack of minorities in good jobs despite education levels, beyond personal bias, includes feeder patterns through school systems and the ability to form connections with people already in good jobs. However, according to Carnevale, at the margins, bias and discrimination better describe the divide in who holds good jobs.

As workers increase their level of education, wage discrimination is reduced between whites and minorities, but it still remains.

“Our institutions are now working in such a way that it pretty much guarantees that the white kids win. And we know that this is deeply embedded in the system,” Carnevale said.

Carnevale cited a previous study he worked on which found that 70 percent of white students from the top income sector still ended up going to college and getting a good job, while only 30 percent of lower-income students with high test scores followed that path. When those lower-income and minority students did make it into good jobs, they ended up getting paid less than their white counterparts.

He said that the conclusions to the study were stronger than he thought they would be, noting that there was progress for African Americans despite their position in comparison to whites.

“We had slavery, Jim Crow, the failure to hand out 40 acres and a mule; we had housing policy, veterans’ policy, redlining. The new culprit is higher education,” said Carnevale. “It’s institutional just like the [Federal Housing Administration] policies that didn’t allow black people to buy houses in the suburbs. Colleges in America didn’t set out to do this, but in a passive sense they’ve become the capstone in a system that guarantees racial inequality.”

“In the end higher education is part of the problem, not part of the solution. The industrial organization of higher education is part of the problem,” said Carnevale.

Carnevale said that higher education needs to fundamentally change to help solve the problem, something he says most people recognize.

While African American and particularly Latino workers have gained traction in fields where a high school or middle-skills education is needed, whites still dominate jobs which need a bachelor’s level of education. Middle skills refer to jobs that require less than a B.A. but more than a high school degree.

Carnevale compared the situation to a race where minorities are “running faster but losing ground” to white Americans, particularly affluent ones, who are pulling ahead.

“I don’t think people — I didn’t, anyway — fully understood the extent to which, since the ’80s, the white and affluent population has basically locked down the future,” said Carnevale. “You can get rid of discrimination, but this is a structural problem.”

Carnevale said that whites are poised to continue to hold good jobs, especially in the B.A. sector, and minorities will have a hard time catching up.

The study recommended expanding educational opportunities and addressing discrimination, as well as implementing policies and incentives that encourage diversity and create more growth in underdeveloped areas.

One of the solutions Carnevale suggested was introducing work experience and training to students earlier. This included in middle and high school, because as it stands now, young people are not getting the relevant work experiences they need.

Carnevale said that some good news is that the number of good jobs is increasing while black and Latinx unemployment rates have decreased. However, those improvements do not mean that black or Latinx Americans have caught up to the good job opportunities accessible to white Americans.

“The pessimistic conclusion I come to — and not all my co-authors agree with me — is that the white population in America has set itself up for the next 30 to 40 years,” said Carnevale. “I don’t see what will change that except for policy on a scale that’s actually effective.”

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Bryan A. Chapman, Esquire

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Immigration Status Discrimination

Source: Workplace Fairness

Immigration Status Discrimination occurs when an employer treats an individual differently based upon their citizenship or immigration status. U.S citizens, recent permanent residents, aslyees, and refugees are protected from immigration status discrimination. The only exception applies to permanent residents who do not apply for naturalization within six months of eligibility; these individuals are not protected from immigration status discrimination. This type of discrimination deals largely with abusive requests for paperwork related to ones immigration status. Immigration status discrimination is also sometimes referred to as citizenship status discrimination and is closely linked to National Origin Discrimination. This page will provide more detail about immigration status discrimination. Also find more related information on our national origin discrimination page.

1. What is discrimination based on immigration or citizenship status?

2. Which federal laws cover discrimination based on immigration or citizenship status?

3. Who is protected under the law?

4. Which employers are covered by the law?

5. Can I be asked if I am a citizen?

6. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire “Americans?”

7. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?

8. Can an employer request work authorizations only from those who “sound foreign?”

9. What documents can my employer request me to produce in order to begin working? I showed my employer my driver’s license and social security card, but he insists on seeing my green card. Is this legal?

10. I am an employer and have noticed that an individual I intend to hire has submitted documentation that is about to expire, is it illegal for me to hire them?

11. I do not have authorization to work in the U.S. and my employer knows this. Can I be hired anyway?

12. I do not have authorization to work in the U.S., but I have been working anyway. What do I do if I have been harassed or discriminated against at work?

13. Can my employer have me deported for reporting harassment or discrimination?

14. Who enforces the law?

15. How can I file a complaint?

16. What are the remedies available to me?

17. How long do I have to file?

18. More information about immigration status discrimination:

1. What is discrimination based on immigration or citizenship status?

Discrimination based on immigration or citizenship status occurs when an individual is treated differently in their employment because of their citizenship or immigration status. It is different from national origin discrimination because the characteristic the discrimination is based on is the individual’s immigration status, rather than whether an individual or his or her ancestors came from another country. Both types of discrimination are against the law.

The only exception to this rule applies to permanent residents who do not apply for naturalization within six months of eligibility. These individuals are not protected from citizenship status discrimination. Similarly, some actions by employers that might otherwise be considered illegal discrimination, may be permissible if they are required by another law, executive order, regulation, or government contract. For example, a government contractor may request additional paperwork for a security clearance, if the government contract requires it.

If you have been rejected for employment, fired, or otherwise harmed in your employment because of your citizenship, immigration status or type of work authorization, you may have suffered illegal immigration status or citizenship status discrimination.

The Immigration Reform and Control Act (IRCA) is a federal law that protects individuals from employment discrimination based on immigration or citizenship status. This anti-discrimination law makes it illegal to discriminate on the basis of national origin or citizenship status in hiring, firing (including layoffs), recruitment, or referral for a fee. It makes it illegal to require more or different documents than are legally acceptable for employment verification purpose. It also makes it illegal to refuse to honor the documents the employee offers if they are legally acceptable and appear to be genuine. Finally, it prohibits intimidation, coercion, threats, or retaliation against individuals who file charges or otherwise cooperate with an investigation, proceeding, or IRCA hearing.

Some examples of potentially unlawful immigration or citizenship status discrimination include:

  • You didn’t get hired because the employer hires only U.S. citizens to do certain jobs.
  • You are a temporary resident with work authorization, but a company denies you employment because it doesn’t want to deal with the “hassle” of filling out the appropriate paperwork.
  • Muslim, Asian and Latino employees are asked for copies of their work authorization papers, while other employees who are Caucasian or African-American are not asked to provide similar authorization papers.
  • You show your employer your driver’s license and social security card, but your supervisor insists that you also show her a copy of your green card. When you point out that this is not required by law to fill out the I-9 form, you are told the company requires it.
  • You sign up with a temporary agency, and learn that a certain employer has work for someone with your skills and experience. The agency refuses to refer you to work for this employer because the employer wants to hire only U.S. citizens.

Discrimination, harassment, or retaliation against an undocumented worker on the basis of other protected statuses, such as racesex or religion also violates the law.

If any of these things have happened to you on the job, you may have suffered immigration or citizenship status discrimination.Back to Topback to top

2. Which federal laws cover discrimination based on immigration or citizenship status?

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), is a federal law covering almost all immigration matters. It protects individuals from employment discrimination based on immigration or citizenship status, and prohibits document abuse discrimination, which occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others.

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin, and protects undocumented workers from other forms of discrimination, such as discrimination on the basis of race or colorsex or religion. Other federal laws prohibit discrimination against undocumented workers on the basis of age and disability.

While workers are also covered by several other workplace laws, these are the main federal laws which protect workers against discrimination based on immigration or citizenship status.Back to Topback to top

3. Who is protected under the law?

IRCA’s anti-discrimination provision prohibits discrimination against “protected individuals,” who include citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees.

U.S. citizens, U.S. nationals, and authorized aliens are protected from discrimination on the basis of national origin if the employer employs more than 4 employees. While Title VII covers only workplaces with 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces where the employer employs between 4 and 14 employees.

If two non-citizens have different immigration status, an employer may not favor one status (such as permanent resident) over another (temporary resident with work authorization) or require certain kinds of documents from one employee and not from the other.

The law’s protections apply to job applicants as well as current employees. If you are a current employee and are fired or not promoted due to your immigration or citizenship status, you are protected by the law. If you are not hired due to your immigration or citizenship status and/or the valid work authorization documents you present, you are also protected by the law.Back to Topback to top

4. Which employers are covered by the law?

All employers with 4 or more employees are covered by the laws against discrimination based on immigration, citizenship status, and document abuse. While Title VII covers only those workplaces 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces with between 4 and 14 employees. The only difference between the two anti-discrimination laws concerns which governmental agency enforces the laws against your employer.Back to Topback to top

5. Can I be asked if I am a citizen?

An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.Back to Topback to top

6. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire “Americans?”

Generally not. A “U.S. citizens-only” policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.Back to Topback to top

7. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?

No. Client or customer preferences do not allow your employer to engage in illegal discrimination.Back to Topback to top

8. Can an employer request work authorizations only from those who “sound foreign?”

No. To avoid claims of unlawful citizenship discrimination or document abuse, employers are required to treat everyone the same — regardless of appearance, accent, name, or citizenship status — when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.Back to Topback to top

9. What documents can my employer request me to produce in order to begin working? I showed my employer my driver’s license and social security card, but he insists on seeing my green card. Is this legal?

Under IRCA, employers are required to ask for documents establishing identity and authorization to work in the United States. There are several combinations of legally acceptable documents from which they can choose. These combinations are listed on the back of the I-9 form, which must be completed for every employee, regardless of national origin, including U.S. citizens. As long as the documents presented prove identity and work authorization, and are included in the list on the back of the I-9 form, they are acceptable. Employers cannot prefer one document over others for purposes of completing the I-9 form.

Not all authorized aliens carry the same documents. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. For example, not all aliens who are authorized to work are issued green cards. As long as the documents are allowed by law, appear to be genuine, and relate to the person, they should be accepted. To not accept such documents is illegal.

These protections prohibit discrimination against U.S citizens as well as all individuals authorized to work in the United States.Back to Topback to top

10. I am an employer and have noticed that an individual I intend to hire has submitted documentation that is about to expire, is it illegal for me to hire them?

No, in fact it is illegal to discriminate against an individual upon these grounds. As an employer you are required to accept any document an employee presents from the lists of acceptable documents, as long as the document reasonably appears to be genuine and to relate to the employee. Furthermore as an employer, you may not

  • demand that an employee show specific documents
  • Ask to see employment authorization documents before an individual accepts a job offer
  • Refuse to accept a document, or refuse to hire an individual because a document will expire in the future
  • Refuse to accept a receipt that is acceptable for Form I-9 purposes
  • Demand a specific document when re-verifying that an employee is authorized to work

However, it is important to note that employers are required to reject paperwork that does not reasonably appear to be genuine or that does not relate to the individual presenting them.Back to Topback to top

11. I do not have authorization to work in the U.S. and my employer knows this. Can I be hired anyway?

IRCA was the first federal law making it illegal for employers to knowingly hire persons who are not authorized to work in the United States. IRCA also made it illegal to continue to employ an undocumented worker or one who loses authorization to work. (Those hired before November 6, 1986, do not fall within this category.) IRCA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees’ identity and work eligibility as specified on the I-9 Form.

An employer who knowingly hires an undocumented worker and/or fails to verify an employees’ identity and work eligibility may be liable for criminal sanctions.Back to Topback to top

12. I do not have authorization to work in the U.S., but I have been working anyway. What do I do if I have been harassed or discriminated against at work?

According to the Equal Employment Opportunity Commission (EEOC), the governmental agency that handles discrimination cases, undocumented workers are, with a few exceptions, entitled to the same protections and relief as documented workers under federal anti-discrimination statutes.

If you are an undocumented worker who has been harassed or discriminated against, you should follow the same steps as other workers to file a discrimination complaint. EEOC will not, on its own initiative, inquire into a worker’s immigration status, nor consider an individual’s immigration status when determining whether a discrimination charge has merit.Back to Topback to top

13. Can my employer have me deported for reporting harassment or discrimination?

It is against the law for your employer to report or threaten to report a worker to the Immigration and Nationality Service (INS) because the worker opposed unlawful discrimination or participated in a proceeding under the anti-discrimination laws. If your employer appears to have acquired information about your unauthorized status after you complained of discrimination, the government agency investigating your complaint will also attempt to determine whether your employer’s purpose in finding out information about your immigration status was to retaliate against you.

Any person facing deportation, whether as a result of incidents occurring at work or not, should consult immediately with a lawyer who specializes in immigration law, as this is a serious and complex legal issue beyond the scope of the information provided by this website.Back to Topback to top

14. Who enforces the law?

The Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual’s citizenship, immigration status and, in certain situations, national origin. The OSC also investigates charges that an employer has requested that an employee or job applicant establish employment eligibility and identity by presenting more or different documents than are required by law, rejected reasonably genuine-looking documents, or demanded a specific document such as a Alien Registration Card or “green card.”

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces of 15 or more employees. The EEOC also investigates charges of job discrimination on the basis of race, color, sex, age, religion and disability, including charges filed by undocumented workers.Back to Topback to top

15. How can I file a complaint?

Contact the Office of Special Counsel (OSC) if your claim is for:

  • immigration status discrimination and/or
  • document abuse only, or
  • national origin discrimination, and there are 4-14 employees at your workplace.

See our page on filing a discrimination complaint if your claim is for:

  • discrimination other than immigration status discrimination or document abuse, and
  • there are 15 or more employees at your workplace.

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16. What are the remedies available to me?

Those who successfully prove they have been discriminated against because of their immigration or citizenship status can recover back pay, job offer, and reinstatement. OSC settlements can also require employers to stop discriminatory practices, pay monetary penalties, undergo monitoring, and receive antidiscrimination training.

If you are an undocumented worker and your employer discriminates against you in violation of any of the federal antidiscrimination statutes, you may obtain various kinds of relief as permitted by the federal statutes. For more detail, please see the page on this site that discusses the specific kind of discrimination that you suffered.

An undocumented worker may not be eligible for an award of back pay, according to a recent U.S. Supreme Court decision . An undocumented worker hired on or before IRCA was passed on November 6, 1986 is eligible for reinstatement. If you were hired after that date and your employer knows that you are undocumented, you must supply proper documentation verifying employment eligibility to be reinstated.

Undocumented workers are also nominally protected by the National Labor Relations Act from retaliation (including termination) for their union activities (such as organizing) even though they are undocumented. We say “nominally” because the Supreme Court has recently decided that while it is illegal for an employer to discharge an undocumented worker for union activities, the worker is not entitled to backpay for such retaliation. Back to Topback to top

17. How long do I have to file?

For workplaces with between 4 and 14 employees, you must file a charge with OSC within 180 days from the date you believed that you were discriminated against in order to protect your legal rights. To protect your rights, it is always best to contact OSC or an attorney promptly when you suspect discrimination has occurred.

For workplaces with 15 or more employees, please note that all laws enforced by Equal Employment Opportunity Commission (EEOC) require filing a charge with the EEOC (or a cooperating state agency) before a private lawsuit may be filed in court. Many states also require that you file with a state administrative agency or with the EEOC to enforce state laws. There are strict time limits within which charges must be filed. See filing a discrimination complaint for more information.Back to Topback to top

18. More information about immigration status discrimination:

Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC)
EEOC Questions & Answers: Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws
EEOC Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination LawsBack to Topback to top

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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Disability Discrimination

Source: Workplace Fairness

This page provides answers to the following questions:

1. What is disability discrimination, or disability harassment?

2. What are some examples of disability discrimination?

3. Which federal law(s) cover people with disabilities?

4. Who is considered disabled under the law?

5. How will the disability definition be interpreted under the law?

6. Which employers are covered by the law?

7. Can I be asked about my disability in a job interview?

8. Can I be forced to take a physical or medical exam?

9. What is a “qualified person with a disability?”

10. What is an “essential job function?”

11. What is an “impairment substantially limiting a major life activity?”

12. What is a “reasonable accommodation?”

13. What if my employer thinks the accommodation would be too expensive?

14. When is my employer required to give me an accommodation?

15. What if I need an accommodation to apply for a job?

16. Is my employer required to modify the job facilities for me?

17. Can I be charged or paid a lower salary to cover the cost of the accommodation?

18. What if I’m not disabled, but am treated like I have a disability?

19. What if I’m not disabled myself, but care for or live with a person with a disability?

20. What if my employer does not know I am disabled? Am I protected?

21. Can I be prevented from working a certain job for health and safety reasons?

22. Can my employer refuse to pay medical insurance coverage for my disability?

23. Are substance abuse and alcoholism considered disabilities?

24. Can my employer ask me about my disability to determine my needs during an emergency evacuation of the workplace?

25. Does my employer have to favor the applications of persons with disabilities?

26. Can an employer establish specific attendance and leave policies?

27. What are my rights after becoming disabled on the job?

28. How does the ADA affect workers’ compensation programs?

29. Who enforces the law?

30. What are the remedies available to me?

31. How can I file a complaint?

32. More Information About Disability Discrimination

1. What is disability discrimination, or disability harassment?

Disability discrimination means treating individuals differently in employment because of their disability, perceived disability, or association with a disabled person. Some examples of disability discrimination may include:

  • Discriminating on the basis of physical or mental disability in various aspects of employment, including: recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, lay off, leave and all other employment-related activities.
  • Harassing an employee on the basis of his or her disability.
  • Asking job applicants questions about their past or current medical conditions, or requiring job applicants to take medical exams.
  • Creating or maintaining a workplace that includes substantial physical barriers to the movement of people with physical disabilities.
  • Refusing to provide a reasonable accommodation to employees with physical or mental disability that would allow them to work.

If any of these things have happened to you on the job, you may have suffered disability discrimination. If you have a disability and are qualified to do a job, there are federal and state laws protecting you from job discrimination, harassment, and retaliation based on your disability. You are also protected if you are a victim of discrimination because of your association (family, business, social or other relationship) with a disabled person.Back to Topback to top

2. What are some examples of disability discrimination?

Disability discrimination can occur in many ways. It can be direct, and obvious, or indirect, and not so obvious. Below are examples of both direct and indirect discrimination.

Direct: A restaurant allows a family with a child who has cerebral palsy to eat in their outdoor seating area but not in their family room. The family with the disabled child is not given the same choices that other families have.

Indirect: A local authority, such as a Health Department, makes an flyer about its services for residents. In order to save money it does not produce an easy-to-read version of the flyer. This makes it more difficult for someone with a learning disability to access the information and services which could amount to indirect discrimination.Back to Topback to top

3. Which federal law(s) cover people with disabilities?

The Americans with Disabilities Amendments Act of 2010 (42 U.S.C. 12101 et seq.) 

The ADA makes it illegal for private employers, state and local governments, employment agencies, and labor unions to discriminate against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. Sections of the ADA not relating to employment address discrimination by governmental agencies and in public accommodations.

For more detailed information about the ADA, visit the U.S. Equal Employment Opportunity Commission’s website on Disability Discrimination.

The Rehabilitation Act of 1973 (29 U.S.C. 701)

The Rehabilitation Act makes it illegal to discriminate on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in the Americans with Disabilities Act.

These are the primary federal laws that apply to workplace discrimination, although there are many other federal laws that make it illegal to discriminate on the basis of disability, for example: the Air Carrier Access Act of 1986 prevents discrimination in provision of air transportation, the Architectural Barriers Act of 1968 requires that buildings and facilities, designed, constructed, altered, or leased with certain federal funds after September 1969 must be accessible to and usable by handicapped persons, the Fair Housing Act prohibits discrimination in the sale, rental, and financing of housing based on disability, along with other minorities, and the Individuals with Disabilities Education Act ensures that students with disabilities are protected, and that all children with disabilities have available to them free appropriate public education.

The laws of most states also make it illegal to discriminate on the basis of disability, and some state laws have different standards than the ADA for determining who the state law covers. While the discussion below will focus on the ADA Amendments Act, you should check the law in your state and/or consult with a local attorney to see whether your state law provides additional protection.Back to Topback to top

4. Who is considered disabled under the law?

According to the ADA Amendments Act, the term “disability” means, with respect to an individual, one who:

  • Has a physical or mental impairment that substantially limits one or more major life activities of such an individual;
  • A record of such an impairment;
  • Being regarded as having such an impairment

The ADA Amendments Act changes the way these criteria should be interpreted. (For more information, see question 4.)Back to Topback to top

5. How will the disability definition be interpreted under the law?

The ADA Amendments Act emphasizes that the definition of disability “should be interpreted broadly.”

The Act directs the EEOC to revise the portion of its regulation defining the term “substantially limits.” The Act also expands the definition of “major life activities” to include:

  • Most activities previously recognized under the law, such as walking and seeing, as well as new ones, such a reading, bending and communicating.
  • Major bodily functions, such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine and reproductive functions.”

In determining whether one has a disability, mitigating measures (if you are able to use medication to eliminate the limitations of your medical condition, or successfully use a prosthetic, hearing aid, glasses, or other assistive device) other than “ordinary eyeglasses or contact lenses” will not be considered.

Even though an impairment may be intermittent or in remission, it will be classified as a disability if, when active, it would substantially limit a major life activity.

If you are subjected to an action prohibited by the ADA (such as failure to hire) because of an impairment, which is either real or perceived, you will meet the “regarded as” definition of disability, unless the impairment is minor, and in transition.

Individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation under The Act. (For more information on this, see question 11).Back to Topback to top

6. Which employers are covered by the law?

Job discrimination against people with disabilities is illegal if practiced by:

  • private employers
  • state and local governments
  • employment agencies
  • labor organizations or
  • labor-management committees.

The ADA applies to all employers, including state and local government employers, with 15 or more employees. Many states also have laws that make it illegal to discriminate on the basis of disability. For more information, please see our page on the minimum number of employees needed to file a claim under your state law. Click here for more information on Coverage from the EEOC.Back to Topback to top

7. Can I be asked about my disability in a job interview?

If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. However, an employer can ask if you can perform the duties of the job with or without reasonable accommodation; an example of this is: this job requires you to stand outside for long hours, or, must be able to lift 20 pounds. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation; you will perform the duties of the job.

Federal contractors and subcontractors who are covered by the affirmative action requirements of the Rehabilitation Act may invite individuals with disabilities to identify themselves on a job application form or in some other pre-employment inquiry. Employers requesting this information must follow certain legal requirements regarding the way this information is requested and used. The information must be maintained confidentially and separately from regular personnel records.

A pre-employment inquiry about a disability is also allowed if required by another Federal law or regulation such as those that cover disabled veterans and veterans of the Vietnam era. Pre-employment inquiries about disabilities may be necessary under such laws to identify applicants or clients with disabilities in order to provide them with required special services.Back to Topback to top

8. Can I be forced to take a physical or medical exam?

You cannot be required by an employer to take a medical examination before you are offered a job. Following a job offer an employer can condition the job offer on your passing a required medical examination. This can only be done if all entering employees for that job category have to take the examination and the exam is job-related and consistent with the employer’s business needs. (You cannot be singled out for an exam merely because you have, or your employer believes you have, a disability.) However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer’s business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer’s business. However, your employer 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.

The results of all medical examinations must be kept confidential and maintained in separate medical files.Back to Topback to top

9. What is a “qualified person with a disability?”

If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things:

  • You must satisfy the employer’s requirements for the job, such as education, employment experience, skills or licenses.
  • You also must be able to perform the essential functions of the job with or without reasonable accommodation.

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10. What is an “essential job function?”

“Essential functions” are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer can refuse to hire you if you cannot perform these duties on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you, however, because your disability prevents you from performing duties that are not essential to the job. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

For example: a grocery store bagger develops a disability that makes her unable to lift any item weighing more than five pounds. Since a bagger’s main job duty is placing items into bags and handing filled bags to customers or placing them in grocery carts, the store does not have to remove its fifteen-pound lifting requirement as an accommodation, since being able to lift bags of groceries is an essential function of a bagger’s job.Back to Topback to top

11. What is an “impairment substantially limiting a major life activity?”

An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Major life activities generally consist of but are not limited to: caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Under the ADAAA, “major life activities” was expanded to include “major bodily functions”. This list includes, but is not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and reproductive functions.Back to Topback to top

12. What is a “reasonable accommodation?”

If you are able to perform all of the essential functions of a job, except for those your disability prevents you from performing, the ADA and many state disability laws require that your employer provide you with a “reasonable accommodation.” A “reasonable accommodation” is an adjustment or modification provided by an employer to allow you to enjoy equal employment opportunities as individuals without disabilities.

Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. Reasonable accommodations may include:

  • Making facilities accessible to persons with disabilities.
  • Job restructuring, modifying work schedules, reassignment to vacant position;
  • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies and providing qualified readers or interpreters.

Some examples of reasonable accommodations specific to particular disabilities are:

  • A deaf applicant may need a sign language interpreter during the job interview.
  • An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
  • A blind employee may need brail reading material.

An employer is not required to violate a seniority system that is a product of a collective bargaining agreement to accommodate a disabled employee. Nor is an employer required to lower quality or production standards to make an accommodation, or excuse violations of conduct rules necessary for the operation of an employer’s business. Nor is an employer obligated to provide personal use items such as glasses, hearing aids, or prostheses.Back to Topback to top

13. What if my employer thinks the accommodation would be too expensive?

An employer is not required to make an accommodation for a known disability if it would impose an “undue hardship” on the employer’s business. Undue hardship is defined as an accommodation requiring “significant difficulty or expense.”

Some of the factors taken into account when analyzing whether there is an undue hardship include:

  • the nature and cost of the accommodation
  • the financial resources of the employer (a large employer may be expected to accept greater expenses than a small family business)
  • the nature of the business (including size, composition and structure of the workforce), and
  • any accommodation costs already incurred in the workplace.

It is not easy for employers to prove that an accommodation is an undue hardship, as financial difficulty alone is not usually sufficient. Other sources of money for making accommodations may be available, including tax credits or deductions and vocational rehabilitation funds. The disabled employee’s willingness to pay for all or part of the costs also can be considered, although the disabled employee cannot be required to pay the costs of accommodation.Back to Topback to top

14. When is my employer required to give me an accommodation?

An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one.

A request can be a statement in plain English; that you need an adjustment or change in the application process or at work for a reason related to a medical condition. The request does not have to include the terms “ADA” or “reasonable accommodation.” Also, the request does not have to be in writing, although your employer is then allowed to ask for something in writing to document the request.

A family member, friend, health professional, rehabilitation counselor, labor union, or other representative also may request a reasonable accommodation on your behalf. For example, a doctor’s note indicating that an employee can work “with restrictions” is a request for a reasonable accommodation.

Once you have requested a reasonable accommodation, you and your employer should discuss your needs and identify the appropriate reasonable accommodation. The EEOC has clarified that an employer refusing accommodation because the request does not fall within the company’s policy, will not be a viable defense. The ADA refers to this as the “interactive process,” a formal way of saying that you and your employer should talk about the request for a reasonable accommodation, especially where your need for the accommodation may not be obvious. The EEOC has made it clear that the word “accommodation” simply means: doing things differently than are customary, and simply saying “no” does not constitute an interactive process. A conversation also helps where the employer may have questions about what type of accommodation might best help you apply for a job or perform the essential functions of a job. If you request, but cannot suggest, an appropriate accommodation, you and your employer should work together to identify one. There are also many public and private resources that can provide assistance without cost.

Where more than one accommodation would work, your employer is allowed to choose the one that is less costly or that is easier to provide. Your employer may also ask you for additional documentation describing your disability and why the requested accommodation is needed, especially when your disability or need for accommodation are not obvious.

The documentation required should be limited to a doctor’s note or other medical documents showing that you have a disability and need accommodation. Your employer should not require you to produce your entire medical or mental health history in order to receive accommodation for a specific disability.

The EEOC has been clear that any employer may deny a request when providing an accommodation imposes undue hardship on its operations or finances. What constitutes and undue hardship is determined on a case-by-case basis.Back to Topback to top

15. What if I need an accommodation to apply for a job?

Applicants, as well as employees, are entitled to reasonable accommodation. If that were not the law, only those individuals who became disabled after they were already employed would be protected against disability discrimination.

For example, an employer may be required to provide a sign language interpreter during a job interview for an applicant who is deaf or hearing impaired, unless to do so would impose an undue hardship.

If you think you will need a reasonable accommodation in order to participate in the application process, you should inform the employer that an accommodation will be needed, so that the employer is aware of your need for accommodation and so you will be protected by the ADA if you are not accommodated in the application process.Back to Topback to top

16. Is my employer required to modify the job facilities for me?

Yes, unless that modification would be an undue hardship for the employer. The requirement to provide reasonable accommodation covers all services, programs, and non-work facilities provided by the employer.

If making an existing facility accessible would be an undue hardship, the employer must provide a comparable facility that will enable a person with a disability to enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless to do so would be an undue hardship.

For example, if an employee lounge is located in a place inaccessible to a person using a wheelchair, the employer might choose to modify or relocate the lounge, or if doing so is an undue hardship, then the employer might choose to provide comparable facilities in a location that would enable the individual to take a break with co-workers.Back to Topback to top

17. Can I be charged or paid a lower salary to cover the cost of the accommodation?

No. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions. If the cost of providing the needed accommodation would be an undue hardship for your employer, however, you must be given the choice of providing the accommodation yourself or paying for the portion of the accommodation that causes the undue hardship. For more information, see question 12 above.Back to Topback to top

18. What if I’m not disabled, but am treated like I have a disability?

The ADA also protects a person who is regarded (or treated) by an employer as if he or she has a substantially limiting impairment, even if he or she has no impairment or has only a minor impairment, particularly if the employer acts based on myths, fears, or stereotypes about a person’s medical condition.

For example, an employer may not deny a job to someone who has a history of cancer because of a fear that the condition will recur and cause the employee to miss a lot of work.Back to Topback to top

19. What if I’m not disabled myself, but care for or live with a person with a disability?

You are protected by the ADA if you are discriminated against because of your relationship or association with an individual with a known disability. The reason the ADA prohibits discrimination based on relationship or association is to protect you from job-related discrimination based on unfounded assumptions that your relationship to a person with a disability would affect your job performance, and from actions caused by bias or misinformation concerning certain disabilities.

For example, if you have a disabled spouse and apply for a job, the ADA would prevent you from being denied employment because of an employer’s unfounded assumption that you would use excessive leave to care for your spouse. The ADA also would protect you if you do volunteer work for people with AIDS, and as a result had a discriminatory employment action taken against you that was motivated by that relationship or association.Back to Topback to top

20. What if my employer does not know I am disabled? Am I protected?

An employer is required to accommodate only known disabilities. Therefore, it generally is your responsibility as a disabled employee to inform your employer that an accommodation is needed.

If you think you will need a reasonable accommodation in order to participate in the application process or to perform essential job functions, you should inform the employer that an accommodation will be needed, so that you are protected by the ADA if you are not accommodated.

Your employer is under an obligation to keep information about your disability that you disclose confidential. The ADA requires that the results of all medical examinations must be kept confidential and maintained in separate medical files.Back to Topback to top

21. Can I be prevented from working a certain job for health and safety reasons?

The ADA allows an employer to refuse to hire individuals who pose a “direct threat” to the health or safety of themselves or others. A direct threat means a “significant risk of substantial harm.” Employers have legitimate concerns about maintaining a safe workplace for all employees and members of the public. In some instances, the nature of a particular person’s disability may cause an unacceptable risk of harm from the employer’s perspective.

The determination that there is a direct threat must be based on objective evidence and reasonable medical judgment regarding an individual’s present ability to perform essential functions of a job. It cannot be based on unfounded fears or generalizations. An employer cannot refuse to hire you because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.Back to Topback to top

22. Can my employer refuse to pay medical insurance coverage for my disability?

The ADA requires that an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees. Your employer cannot deny you coverage that is made available to other employees or impose additional costs or restrictions on you because you are disabled. Depending on the level of coverage, however, the offered coverage may or may not fully cover the medical needs you have as a result of your disability.

The ADA also does not affect clauses contained in health insurance policies about pre-existing condition even though such clauses may adversely affect employees with disabilities more than other employees.Back to Topback to top

23. Are substance abuse and alcoholism considered disabilities?

Alcoholism, and use of illicit drugs is not covered under the ADA. Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use.

The ADA does not prevent employers from testing applicants or employees for current illegal drug use, nor from making employment decisions based on testing results that are verifiable. A test for the illegal use of drugs is not considered a medical examination under the ADA. Therefore, it is not a prohibited pre-employment medical examination and you will not have to show that the administration of the test is job-related and consistent with business necessity. The ADA does not encourage, authorize or prohibit drug tests.

A worker who is an alcoholic is a person with a disability and is protected by the ADA if he or she is qualified to perform the essential functions of the job. However, the ADA still allows employers to discipline, discharge or deny employment to an alcoholic whose use of alcohol negatively affects job performance or conduct. An employer also may ban the use of alcohol in the workplace and can require that employees not be under the influence of alcohol, as long as that rule is uniformly applied.

There may be times, however, when an employer must accommodate an employee with alcoholism. For example, an employer may have to modify a rule prohibiting personal phone calls at work for an employee with alcoholism who periodically has to contact his AA sponsor, if the employee has a need to do so during work hours.Back to Topback to top

24. Can my employer ask me about my disability to determine my needs during an emergency evacuation of the workplace?

Yes. Some employees may need assistance in the event of an emergency evacuation because of medical conditions that are not visually apparent. Other employees may have obvious disabilities or medical conditions but may not need assistance. Employers, therefore, are allowed to ask employees to self-identify if they will require assistance because of a disability or medical condition.

Employers can ask about your medical conditions in three ways:

  • After making a job offer, but before employment begins, an employer may ask all individuals whether they will need assistance during an emergency.
  • An employer also may periodically survey all of its current employees to determine whether they will require assistance in an emergency, as long as the employer makes it clear that self-identification is voluntary and explains the purpose for requesting the information.
  • Finally, whether an employer periodically surveys all employees or not, it may ask employees with known disabilities if they will require assistance in the event of an emergency. An employer should not assume, however, that everyone with an obvious disability will need assistance during an evacuation. For example, many individuals who are blind may prefer to walk down stairs unassisted. People with disabilities are generally in the best position to assess their particular needs.

An employer should inform all individuals who are asked about their need for emergency assistance that the information they provide will be kept confidential and shared only with those individuals who have responsibilities under the company’s emergency evacuation plan.

25. Does my employer have to favor the applications of persons with disabilities?

The ADA makes it illegal for a private employer to discriminate against a qualified individual with a disability only on the basis of disability. Therefore, an employer is free to select the most qualified applicant available and to make employment decisions based on reasons unrelated to the existence or consequence of a disability.

For example, if two people apply for a typist position, one is a person with a disability who accurately types 50 words per minute, the other a person without a disability who accurately types 75 words per minute, the employer may hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.Back to Topback to top

26. Can an employer establish specific attendance and leave policies?

An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation for a worker with a disability. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.

A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his or her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship. For more information, see our page on disability leave.

A disabled employee may also be eligible for leave under the Family & Medical Leave Act. For more information, see our page on family/medical leave.

On May 9, 2016, the EEOC published a guide entitled Employer-Provided Leave and the Americans with Disabilities Act. The guide is broken into 6 key areas highlighting issues for employers to consider when employees need medical leaves of absence not covered by the FLMA. Under these guidelines, your employer must:

  • Provide disabled employees with access to the same leave of absence rules as non-disabled employees;
  • Consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer;
  • Promptly engage in an “interactive process” with the employee, a discussion that focuses on the reasons for the leave, whether it’s blocked or intermittent, and its expected duration. The process may include confirming information from the employee’s health care provider, when an employee requests leave as a reasonable accommodation;
  • Avoid unlawful policies. Policies that place a cap on leaves of absence, without consideration for modifications or extensions as reasonable accommodations, are unlawful under the ADA.;
  • Avoid “100% Healed” policies. Policies which mandate that an employee be fully recovered before returning to work and are unlawful. Instead, consider reasonable accommodations that will enable an employee to return before they are fully recovered, this might include temporary transfer to a vacant position; and
  • Consider undue hardship. Depending on the duration and frequency of the leave, and the impact on the employer’s business, a leave of absence might be an undue hardship that an employer need not offer. An open-ended, indefinite leave is always an undue hardship; other types of leave should be evaluated for undue hardship on a case-by-case basis.

Back to Topback to top

27. What are my rights after becoming disabled or injured on the job?

Work-related injuries must be evaluated on a case-by-case basis to determine if a worker is protected by the ADA. Only injured workers who meet the ADA’s definition of an “individual with a disability” will be considered disabled under the law, regardless of whether they satisfy criteria for receiving benefits under workers’ compensation or other disability laws. An employee also must continue to be “qualified” (with or without reasonable accommodation) to be protected by the ADA.

Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Also, many on-the-job injuries cause temporary impairments that heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers’ compensation or other disability benefits laws may not be protected by the ADA.Back to Topback to top

28. How does the ADA affect workers’ compensation programs?

An employer may not inquire into an applicant’s workers’ compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person’s workers’ compensation history if a medical inquiry or examination is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination. Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers’ compensation costs in the future.

However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.

An employer may also refuse to hire, or may fire, a person who knowingly provides a false answer to a legal inquiry about his or her condition or worker’s compensation history made after the offer of employment. It does not violate ADA confidentiality requirements for an employer to submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers’ compensation offices and “second injury” funds.Back to Topback to top

29. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to disability discrimination in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination (see below).Back to Topback to top

30. What are the remedies available to me?

Victims of disability discrimination can recover remedies to include:

  • back pay
  • hiring
  • reasonable accommodation
  • promotion
  • reinstatement
  • front pay
  • compensatory damages (emotional pain and suffering)
  • punitive damages (damages to punish the employer)
  • other actions that will make an individual “whole” (in the condition she or he would have been but for the discrimination)

Remedies also may include payment of:

  • attorneys’ fees
  • expert witness fees
  • court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.

Your state law may allow for greater or different remedies than federal law (see question 29 below).Back to Topback to top

31. How can I file a disability discrimination complaint?

For more information on filing a complaint for disability discrimination, select your state from the map below or from this list. Select a state Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania  Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming united states mapBack to Topback to top

32. More Information About Disability Discrimination:

EEOC Notice Concerning the Americans With Disabilities Act Amendments of 2008

JAN Accommodation and Compliance Series: ADA Amendments Act of 2008

www.law.georgetown.edu/archiveada/documents/ADAAACR9.17.08.pdf

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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When Is An Employer's Reason For Firing You Actually A Pretext For Age Discrimination?

Jul 2, 2019

Source: Forbes Magazine

Eric Bachman Contributor Wealth Management

I am a litigator helping professionals navigate employment challenges

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In employment litigation, some of the most important evidence is centered on the question of whether the employer had a legitimate reason to terminate your employment or whether the reason was simply a pretext for unlawful discrimination.  A federal appellate court recently tackled this issue and fleshed out how an employee can prove that the employer’s purported reasons were just a mask for illegal behavior.

In Westmoreland v. TWC Administration LLC, 924 F.3d 718 (4th Cir. 2019), the United States Court of Appeals for the Fourth Circuit found that the employee had shown that the employer’s reason for firing her was a pretext for discrimination.  In this case, Westmoreland alleged that Time Warner Cable (TWC) fired her because of her age in violation of the Age Discrimination in Employment Act (ADEA). After a three-day trial, the jury found TWC liable for age discrimination and awarded Westmoreland $334,500 in damages. TWC appealed the verdict to the Fourth Circuit, which affirmed the district court’s decision for the plaintiff. 

LEGAL STANDARDS FOR AGE DISCRIMINATION AND PRETEXT CLAIMS

The ADEA, 29 U.S.C. §§ 621-34, prohibits an employer from discharging or otherwise “[discriminating] against any individual… because of such individual’s age.” 29 U.S.C. § 623(a). To win, a plaintiff “must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-178 (2009). Circumstantial evidence, as opposed to direct evidence of discrimination (which is less frequently available to plaintiffs), is analyzed under a three-part test created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  

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The McDonnell Douglas framework for an ADEA claim for termination due to age discrimination is as follows:

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STEP 1/prima facie case  (burden on plaintiff)

  • They belong to a protected class (older than 40 years old)
  • They were qualified for the job and performing in accordance with the expectations of their employer
  • Employer terminated their employment
  • The employer replaced plaintiff with an individual who was comparably qualified to the plaintiff, but substantially younger.  Note: certain courts hold that the plaintiff can also meet this factor by showing the employer did not treat age neutrally when making the decision to terminate.

STEP 2 (burden on defendant)

  • Employer must produce evidence that its actions were the result of legitimate and non-discriminatory reasons

STEP 3 (burden on plaintiff)

  • Employee must prove that the non-discriminatory reason(s) offered by the employer in Step 2 were not true reasons, but were a pretext for discrimination based on age. 

In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-7 (2000), the Supreme Court held that “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Also, Reeves allows the trier of fact to consider the evidence used to establish a prima facie case of discrimination (first prong of McDonnell Douglas) when they are deciding the final prong of McDonnell Douglas framework.  Notably, the Supreme Court later held that “[t]he reason for treating circumstantial and direct evidence alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957)).

ANALYSIS OF WESTMORELAND’S PRETEXT CLAIMS

No dispute existed between the parties regarding the first two steps of the McDonnell Douglas test; thus, the case centered on the pretext analysis. TWC argued that Westmoreland had failed to present sufficient evidence to prove that TWC’s proffered reason for firing Westmoreland was pretext for discrimination, thus falling short on the pretext prong. 

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TWC’s only proffered reason for firing Westmoreland was “trust and integrity issues” that arose after TWC found out that Westmoreland had instructed a subordinate to change the date on a form.  TWC claimed that this violated company policy, which stated that “[f]alse statements… may result in termination of employment.”  

In addition to the evidence she presented to prove Step 1/her prima facie case, Westmoreland also relied upon the following evidence to show that TWC’s explanation was a pretext for age discrimination:

  •  TWC fired her after 30 years of consistently satisfactory work;
  • Westmoreland’s supervisor who informed Westmoreland of her termination and signed her termination papers made a condescending and age-related remark to Westmoreland immediately after the firing;
  • all of the decision-makers at TWC were aware that Westmoreland was of advanced age; and 
  • After TWC informed Westmoreland of her possible violation of company policy (but before TWC officials fired her), a TWC official told her that the offense was minor and would amount to nothing more than a “slap on the wrist.” 

The court also cited the fact that Westmoreland’s otherwise positive 30-year employment record shows that this was an isolated incident for which lesser sanctions were available. 

The Fourth Circuit found that, consistent with the Reeves standard, Westmoreland had sufficient evidence of pretext.  For example, Westmoreland showed that she was fired when she was 61 years old, and her replacement was 37 years old. Likewise, she showed that TWC’s alleged concerns about her violation of company policy were actually not the reason for her firing because, at first, TWC told Westmoreland that the infraction was not that serious.

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Each case will be reviewed based on its own facts and merits, so no “one size fits all” approach can apply when analyzing discrimination and pretext claims.  But the Fourth Circuit’s decision helps employers and employees to better understand where the line may be drawn between a legitimate reason versus a pretext for unlawful discrimination.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

Know Your Rights At Work: Sexual Harassment

Source: Equal Rights Advocates

What is it?

Please note: The purpose of this Know Your Rights Guide is to help you understand your rights and options if you are experiencing sexual harassment at work. This guide is not legal advice. Laws and legal rules frequently change and can be interpreted in different ways, so Equal Rights Advocates cannot guarantee that all of the information in this Guide is accurate as it applies to your situation.

Workplace sexual harassment takes many different forms. It can come from a coworker, a supervisor, or a customer or client, and ranges from unwanted touching, inappropriate comments or jokes, or someone promising you a promotion in exchange for sexual favors.

Sexual harassment does not have to be “sexual.” It can also look like teasing, intimidating or offensive comments based on stereotypes (e.g., about how certain people “are” or should act), or bullying someone or a group of people based on their sex, gender identity (man, woman, trans, intersex, nonbinary) or sexual orientation (queer, straight, bisexual, lesbian, gay, asexual, pansexual, two-spirit etc.) Sometimes sexual harassment is about sex and something else, like race or ethnicity. For example, a woman of color may experience harassment in the workplace differently from a white female co-worker She may be the target of abusive or hostile behavior because of the combination of her sex and her race or ethnicity.

Examples of behavior that could be harassment include but are not limited to:

  • making unwanted requests for sexual favors or dates
  • making inappropriate comments about someone’s body or appearance
  • saying bad things about or making fun of someone or all people of a certain gender or sexual orientation (i.e. “women are…” or “gay people all…”)
  • using gender-based or sexual orientation-based slurs (swear words)
  • making vulgar, offensive, or explicit jokes about sex or sexual acts
    • Note: It still counts as harassment even if the conduct is not aimed at you specifically. For example, if you are a trans person who hears a group of co-workers making offensive jokes or insults about trans people (in general), that kind of behavior could still be considered “harassment,” even though they aren’t speaking to or about you specifically.
  • sending or sharing emails, texts, or messages of a sexual nature
  • gossiping about someone’s personal relationships or sex life
  • unwanted or inappropriate touching of any body part, clothing, face, or hair, including hugging, kissing, or assault
  • staring, leering, or making gestures of a sexual nature
  • blocking someone’s movement
  • displaying, sending, or sharing vulgar pictures or pornography

For something to be considered sexual harassment, it matters what the person who’s being harassed thinks; It does not matter if the person who’s doing the harassment thinks it’s OK, harmless, not sexual, or welcomed (i.e., they think you like it or don’t have a problem with it.) It’s still harassment if the behavior is something you do not want or find offensive.

It also still counts as harassment even if, in the moment, you don’t immediately say “stop” or something else to let the person know that what they’re saying/doing is inappropriate. For example, you might laugh along at a joke that you find offensive, or accept a hug because you’re caught unaware in the moment, or because you’re worried the person will react badly if you don’t go along with their behavior. If the harasser is a supervisor or someone else who has more power than you, you might be afraid speaking up or saying “no” will impact your job. All of these are normal responses to harassment. Responding this way does not make the harassment less serious, or make you more responsible.

What are the laws?

Federal Law

Legally, workplace sexual harassment is considered a form of sex discrimination, so sexual harassment is illegal across the country. Generally, these federal (national) laws apply only to employers with 15 or more employees, but your state might have better laws that cover smaller employers.

  1. Sexual harassment is illegal.  Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it illegal for employers to allow anyone to be sexually harassed at work by anyone else, regardless of sex, gender, or sexual orientation.
    • Sexual harassment can happen to anyone. It is about power, not sexual desire. So for example, men who identify as straight can sexually harass other men – for example, by teasing or bullying those men for being “too feminine” or “acting gay.” (For examples of sexual harassment, see the What Is It? section above.)
    • Title VII applies to employers. It is designed to make employers accountable for providing a work environment that is free from harassment and other kinds of discrimination. It does not make it illegal for someone to harass someone else. Instead, it makes it illegal for employers to allow harassment to occur or to fail to stop it once they know it’s happening. So this civil rights law does not give you a right to sue an individual person – unless that individual person is your employer.
  2. Retaliation is also illegal.  It’s illegal for someone at work to retaliate against (punish) you for reporting or speaking out against sexual harassment, or for participating in an investigation or legal action related to sexual harassment. Examples of retaliation in the workplace include being fired or demoted, receiving a pay cut or a reduction in your hours or benefits, being assigned a different shift, location, position, receiving new or different duties, or being asked to take time off without pay. Retaliation can also be subtle, build up, or get worse over time. Examples include being iced out by coworkers, no longer being invited to meetings, or being left off of communications you were formerly on.
  3. If you report sexual harassment, your employer cannot ignore you or retaliate against you. If a boss or someone in HR knows about the harassment, or should know that you are being harassed, legally, they must take prompt action to try to stop the behavior, investigate the harassment, and make sure it doesn’t happen again. The action also has to be “appropriate” and effective, meaning it has to actually make the harassment stop, without harming you or allowing you to become a target of retaliation.
    • If you complained or told your boss, HR, or another manager about sexual harassment, and they failed to do anything to make the situation better (or made it worse), you could consider taking legal action.

What are my rights?

You have the right to:

1.  Work in a safe, discrimination-free environment.  Your employer is required by law to provide a safe working environment that is not “hostile” to you based on your sex or gender identity.

2.  Be told about your company’s sexual harassment policies — including how to report — in a way that you understand.

  • In California, your employer must have a written policy on harassment, and must make sure every employee knows the policy exists and gets a copy. The policy should be written in a language that employees understand.

3.  Talk about or speak out against sexual harassment, whether it’s happening to you or to someone else. You can talk about sexual harassment or discrimination that’s happening at work to whoever you want, including your coworkers or your supervisor. You also have the right to tell your employer (in a reasonable way) that you believe a company policy or practice perpetuates harassment, or a manager is engaging in harassment or discrimination. It is illegal for your employer to retaliate against (punish) you for talking with coworkers about harassment or discrimination.

4.  Report the harassment to HR or your boss. Report to HR, your boss, or someone else at your company who has power. We highly recommend reporting in writing (email or letter) and making copies so you have proof later if you need it. It is important to report harassment internally first if you might want to take legal action later. (See the What Can I Do? section below)

5.  Picket or protest against sexual harassment or other kinds of discrimination. In fact, when you get together with one or more of your co-workers to raise concerns about your pay or working conditions, you’re engaging in what’s “concerted activity,” which is legally protected by the National Labor Relations Act.

6.  Have your complaint taken seriously and investigated. Legally, your employer must take complaints about sexual harassment seriously and investigate them. As soon as your employer is aware of the sexual harassment, the law requires them to (1) take quick action to stop it, and (2) adequately protect you or the person who’s being harassed.

7.  Ask your employer what will happen and who will know if you file a complaint.  You may want to keep your complaint confidential, but be aware: Investigations usually involve interviewing the harasser, the person complaining about harassment, and other employees as potential witnesses.

8.  File charges with a government agency, such as the Equal Employment Opportunity Commission (EEOC), or your state’s fair employment practices agency — for example, the California Department of Fair Employment and Housing (DFEH). You also have the right to tell your employer that you plan to file a charge, and they cannot retaliate against you for doing so.

  • Note: There are strict deadlines for filing charges with government agencies, called “statutes of limitations.” The deadline to file with the EEOC is either 180 or 300 days from the “last act” of harassment, depending on which state you’re in. In states that have their own anti-discrimination laws and agencies, including California, the deadline to file a discrimination complaint may be different. For more, see the What Can I Do? section below.)

9.  Sue (file a lawsuit against) your employer. This is only an option if you already filed a charge with the EEOC or your state’s FEPA (see #8 above), and you get you a “Right-to-Sue” Notice. Be aware that there are strict deadlines about how many days you have after you receive that Notice to file a lawsuit in court.

10.  Testify as a witness, or participate in an investigation by the EEOC or other government agency. Your employer can’t keep you from providing evidence, testifying at a hearing, or communicating with a government agency that is looking into sexual harassment or other discrimination at your workplace. Even if the investigation eventually finds that there was no harassment, your participation is still a protected right, meaning your employer can’t retaliate against you (punish you) for cooperating.

If you are fired or retaliated against (punished) for doing any of the above, it is illegal, and you could take legal action. Retaliation includes being fired or demoted, cutting your pay, changing your shifts, hours, benefits, or duties, being asked to take time off, or any other action that has a negative effect on you.

What can I do?

If you or someone you know is experiencing sexual harassment (including harassment based on gender identity or sexual orientation), here are some actions you can take. Remember: It is normal to be afraid or worried about reporting sexual harassment or taking other action to make the harassment stop. Do what is right for you, and don’t do anything that you think will put you in danger. These are just examples of options you might want to consider.

1.  If you’re comfortable doing so, ask the person who’s doing the harassing to stop. You can do this verbally (in person or on the phone) or in writing (i.e., by letter, text message, or email). If you do so in writing, keep copies in case you need proof later. If you do so verbally, you may want to ask a trusted co-worker to go with you to serve as a witness.  If you don’t feel comfortable talking or writing to the harasser directly, you should still keep detailed notes about your interactions and experiences. Keep your notes in a safe place outside of work, like at home or in a journal, your personal phone, or email account.

2.  Look at your company’s policies and complaint process. Most employers give you an employee manual or handbook when you’re first hired. Review this to find out what policies might be in place to protect you. If you never got a copy or lost it, ask for a new one. Look for sections or documents that mention harassment or discrimination, which often include information about how to report the misconduct. If there is no information about how to report, see if there is a phone number for HR (Human Resources) or employee relations.

3.  Write everything down.

  • Write down what happened when the harassment occurred, including dates and times, where it occurred, what exactly was said or done, who said/did it, what you said or did, and any witnesses who were there. Include as much detail as possible, and keep notes about every time it happens or happened. If it happens again, write down the details again right away, while the memory is fresh.
  • Keep notes of any conversations or meetings you have about the harassment, including with HR, your supervisor, or the person doing the harassment. Record the time, date, and place of the meeting, and who was there. If you’re comfortable doing so, ask any witnesses to write down what they heard or saw.
  • Keep all notes in a safe, private place at home, in a journal or notebook, on a personal email account, or in another safe place not at work.
    • Tip: Others may later read these written records as part of an investigation. So it’s important to stick to the facts and be as objective as possible.
  • Save any emails, texts, letters, or messages about the harassment, or between you and the harasser. Gather them in one place, at home, on a personal email account, or in another safe place not at work.
  • Keep copies of complaints or reports you file with your company, and all responses.
  • Keep copies of any other documents related to the harassment, and any responses.
  • If you think your employer has retaliated against you, keep detailed notes of every action that happened, when, where, and any witnesses.

4.  Report the harassment to HR or your boss.  We understand it’s not always possible to feel comfortable or safe at work after telling your boss or a supervisor about the harassment you’re experiencing. But we recommend reporting harassment to someone at work who is in a position of authority, because it is harder to make your employer take action unless you report the harassment internally first.

  • We recommend reporting in writing, whether it’s by email or letter. Be sure to keep copies of your report(s) in a safe place outside of work, at home or on a personal email account. For examples of what to write in your report, see our Sample Internal Complaint Example in the Tools & Resources section at the bottom of this page.
  • If you report orally (in person or on the phone), we recommend taking notes about the conversation and then sending a follow-up email or letter confirming what happened during the conversation. For example:
    • Dear [name of Supervisor or Human Resources Staff],
      I’m writing to confirm that we met today, [date], to discuss the fact that I am being sexually harassed by [coworker]. As we discussed, the harassing behavior has included [description of the harassment], and happened [number of times]/has been happening since [date]. You told me [description of employer’s response]. Thank you for taking the time to meet with me about this issue. Sincerely, [Your name]”

5.  You could report the harassment anonymously. If reporting the harassment is not an option that feels safe or comfortable to you, you could make an anonymous report to HR or a manager. Some employers operate helplines or other ways for you to report problems anonymously, such as an employee assistance program or an Ombudsperson. There are also nonprofit organizations that allow you to anonymously report workplace sexual harassment, such as Better Brave or Callisto Expansion.

  • Be aware: If you only report harassment anonymously, and don’t say when, where, to whom things happened (or how you have personal knowledge of it), your employer may not be able to investigate or correct the behavior.

6.  Collective Action. You could come together with one or more workers to demand a meeting with your employer, submit a petition, or take some other action.

7.  Go to your union. If you’re a member of a union, you could talk to your union representative or shop steward and consider filing a grievance. Ask about the collective bargaining agreement and see if it includes provisions about sexual harassment or other discrimination. If you go to your union with a complaint about sexual, racial, or other kind of harassment, the union has a duty to help you. This is true even if the person you’re complaining about is also a member of the same union.

8.  File a complaint with a government agency. If you have experienced harassment at work and your employer is aware but has not stopped it, ignored your report, or retaliated against (punished) you in any way for complaining or supporting someone else’s complaint of harassment, you can file a legal complaint with a government agency: either with your state’s anti-discrimination or civil rights agency (sometimes referred to as FEPA, or Fair Employment Practices Agency), or with the federal (national) Equal Employment Opportunity Commission (EEOC), which has offices nationally.  (File a complaint in California.)

  • Important Note: If the government agency decides to investigate your claim, they will likely interview you as well as the person doing the harassing, and may tell them about your claims. They could also interview your supervisor(s), coworkers, people in HR, and others who may have witnessed the harassment or know about your complaint.
  • Government agencies often take months to assign each case to an investigator, so the whole process could take many months or even years to complete. If you don’t want to wait for the agency to do or complete an investigation, you may be able to request a “Right-To-Sue” notice so you can go directly to court. The rules on getting a “Right-to-Sue” notice are different depending on whether you filed with the EEOC or a state agency. You can ask the agency or the investigator assigned to your case to find out more.
  • Keep in mind: There are strict deadlines about how long you have to file a lawsuit in court once you get a Right-to-Sue notice. It’s a good idea to talk to a lawyer before you file anything in court.

9.  Talk to a lawyer. If you need help understanding your rights and weighing your options, Equal Rights Advocates may be able to help. ERA offers free, confidential legal information, advice, and other assistance through our Advice & Counseling service.

10.  You could sue (file a lawsuit against) your employer in court.

  • Important Note: Before suing, you should first file a charge of discrimination with a state or federal government agency, and get a “Right to Sue” from that agency. Even if you plan to represent yourself (without an attorney), we strongly recommend speaking with an attorney before you take the step of filing a lawsuit in court.

11.  Pay attention to deadlines.

  •  Depending on the state you work in, you either have 180 days or 300 days from the last time you were sexually harassed to file a discrimination complaint (or “charge”) with the EEOC. (Sexual harassment is considered discrimination by the EEOC, so sexual harassment victims should file discrimination complaints.) Check the EEOC’s website to find your state’s deadline.
    • Caution: Making an internal complaint or report to your employer, or filing a grievance with your union, does not extend the deadline to file a complaint with the EEOC or your state’s anti-discrimination agency.
    • You have 6 months if you want to file an unfair labor practice claim with the National Labor Relations Board because you were retaliated against (punished) for taking action against sexual harassment or discrimination at work with one or more of your co-workers. (This means you engaged in “concerted” activity, which is your legally protected right). Visit the NLRB website and click on your state for more information.
  •  California
    • You have 1 year from the last time you were sexually harassed to file a discrimination complaint with the CA Department of Fair Employment and Housing.

What could happen?

If you take legal action, there are different kinds of “remedies” you can ask for. Some have to do with money, and others are more about changing your employer’s behavior. Not everyone can get all of these things. Each case is different, but these are some common examples of things you can demand, and may be able to get if you’re successful (i.e. if you win your lawsuit or reach a settlement).

  1. Compensation for lost wages and other economic losses if the sexual harassment resulted in a loss of work or income (i.e., you had to take a leave of absence, lost hours, were fired and had no income for a while, or lost your job and have not found one that pays you as much.) You could also seek compensation for expenses related to any medical or health treatment you needed or will need in the future because of sexual harassment or retaliation.
  2. Compensation for emotional distress and physical pain or suffering, which could include anguish, stress, anxiety, pain and suffering, loss of sleep, damage to your reputation, and loss of enjoyment of life resulting from harassment.
  3. Reinstatement:  If you were fired or forced out because of the sexual harassment or retaliation, you could potentially get your job back.
  4. Punitive damages: If you sue in court and show that the employer acted with malice or showed “reckless indifference” to your rights, you may be able to get the court or a jury to order that the employer pay punitive damages, which are meant to punish especially bad employers and send a warning message to other employers.
  5. Make your employer change their policies or practices. You may be able to get the court to order, or get your employer to agree to change the way it does things in the future to help make the workplace safe and fair for everyone, and to help ensure that others do not suffer the same thing you went through.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

How to File an Employment Discrimination Claim

Two people talking in an office
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BY ALISON DOYLE 

September 13, 2019

If you are an employee or job seeker and believe you have been the target of unlawful discrimination and you wish to file a legal complaint, it’s important to file with the Equal Employment Opportunity Commission (EEOC) as soon as possible.

Also, another agency, organization, or individual can file a complaint on your behalf in order to protect your identity. However, remember that your employer is legally forbidden from retaliating against you for filing a discrimination claim.

When to File a Discrimination Claim

It’s necessary to file your complaint within 180 days of the incident. That means you have approximately six months to gather the necessary information and file your claim. If the charge is also covered by local laws, the filing deadline is extended by 300 days. However, it’s a good idea to file the claim as soon as possible. Immediate action will help to guarantee a successful investigation of the claim.

Note that federal employees and job applicants have different time requirements. They must contact the EEOC with 45 days of an incident.

How to File a Discrimination Claim

In order to officially file the workplace discrimination claim, you need to contact The Equal Employment Opportunity Commission (EEOC). You may file the claim in person at the nearest EEOC office, and you can also file the claim by mail or online.

A Charge of Discrimination can be completed through the online system after you submit an online inquiry and they interview you. EEOC’s Public Portal asks you a few questions to help determine whether EEOC is the right federal agency to handle your complaint involving employment discrimination.

To contact your local EEOC office, you can call 1-800-669-4000 for voice access, or the 1-800-669-6820 “TTY” number for deaf or speech impaired individuals.

What Information to Provide

When you file the discrimination claim, you will need to provide your name, address, and telephone number. Also, be prepared to provide specifics about your employer, including their name, number of employees, address, and telephone number.

You’ll need to be able to describe the incident and provide dates of the violations, as well. Provide any documentation such as memos or emails that help establish any violations. If possible, provide the names, addresses, and phone numbers of any witnesses who can corroborate your allegations.

After the Discrimination Claim Is Filed

After your claim is filed, the EEOC will launch an investigation of your incident. Depending on the significance of the details you provide, your case may receive an immediate priority investigation, or it may be assigned a review to determine the likelihood of illegal discriminatory practices. During the investigation, the EEOC may visit your work, request additional details, conduct interviews, or review documents.

If preferable to an investigation, mediation can be provided if both you and your employer are willing to cooperatively discuss the incident. If mediation proves to be unsuccessful, the EEOC will revert to further investigation in order to resolve the claim.

Resolving a Discrimination Claim

If the EEOC establishes that discrimination did occur, you can expect to receive compensation in various ways, including hiring, promotion, back pay, front pay, reinstatement to the position, or any other appropriate accommodation. In some cases, you may be compensated for legal fees or court costs.

If the EEOC is unable to resolve the charges, you will be notified that you have a 90-day window to sue your employer if you choose to do so. In this situation, it’s advisable to contact a lawyer who specializes in discrimination cases.

Below are some additional important tips:

  • Before filing a discrimination charge, review your employer’s anti-discrimination policy to determine if it’s possible to file a complaint with your company directly. If your employer has instituted internal grievance procedures, it may be a good idea to file a claim internally as well as contacting the EEOC.
  • Try to keep track of when the discrimination happened. Recording specific dates and details will make for a more thorough and accurate investigation of the incident.
  • Remember to file your complaint as soon as possible in order to fully protect your legal rights.
  • Cooperate fully with the investigation of the claim. It’s important to provide as much detailed information and evidence as possible.
  • Don’t be afraid to file the discrimination claim or cooperate with investigators. Your employer is legally prohibited from retaliating against you after you file the claim and is also forbidden from creating a hostile work environment due to a discrimination charge.
  • Contact your state EEOC for specific information regarding your situation.

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. 

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

How To Prove Discrimination in the Workplace: Documentation

Created by FindLaw’s team of legal writers and editors.

If you believe you have been discriminated against or harassed, you will likely find it necessary to seek an attorney to represent your interests. During the first few meetings with your new attorney, you will be asked a multitude of questions. In addition to talking to your attorney about your claim, you will also need to show your attorney documents relating to your claim. Regarldess of the underlying act, knowing how to prove discrimination in the workplace is crucial to collecting on a claim.

____Your personnel file. If you claim that you have been harassed or discriminated against at work, your attorney will need to develop an idea of your employment record. For example, he or she will want to know if you have had a number of disciplinary warnings or if you have received poor performance evaluations. This information will be contained in your personnel file. If you do not have a copy of your personnel file, your attorney will be able to obtain it from your employer on your behalf.

____Your employee handbook or company policies. Again, if you have experienced discrimination or harassment while at work you may be able to provide your attorney with ammunition to fight your claim. A number of employers have employee handbooks that they distribute to their employees. Many times, these handbooks contain an anti-discrimination or anti-harassment policy. Other employers may post anti-discrimination and anti-harassment policies in common areas of the workplace, such as the locker room or lunchroom. If that is the case with your employer, bring a copy of any posted policy to your attorney’s office. If your employer has a written policy, it should have been followed. If your employer didn’t, your case may be strengthened.

____Diary or journal entries. Many people may find it helpful to keep a written log of any repeated incidents of discrimination or harassment they experience. The diary entry could include information such as the date, time, and location of the discrimination or harassment, in addition to a brief description of the offensive or illegal act and the names of any witnesses present.

____Your pay records. If you have experienced lost time from work as a result of harassment or discrimination (whether or not that improper behavior is taking place in your workplace) you should provide your attorney with copies of your pay records. If you are successful in proving your claim your attorney may be able to recover your lost wages as damages. To prove your loss of income, you will need to show proof of the difference between your earnings before the discrimination or harassment started, and your earnings afterward. If you do not have copies of these records, do not panic. Your attorney will be able to obtain them from your employer.

____Physical evidence of the discrimination or harassment. It is absolutely essential that you provide your attorney with any physical evidence you have of the discrimination or harassment. For example, if an inappropriate or vulgar picture was left on your desk at work, keep the picture and provide it to your attorney. As another example, if you were denied housing because you are a member of a protected class, keep any written documents or information you have about the property that was for sale or rent, such as print advertisements or listing brochures. No matter how upsetting you may find a piece of evidence of discrimination or harassment, it is important that you keep it. It may be one of the best ways to prove your case.

____Mental health records. If being the victim of discrimination or harassment has caused you to seek mental health treatment or counseling, your attorney will need to know that information; it may also affect your entitlement to a recovery of damages. If you do not have these records, at least be able to provide your attorney with the names, telephone numbers, and addresses of your counselors or doctors.

____Medical records. If being the victim of discrimination or harassment has caused you to develop a medical condition, such as high blood pressure, your attorney will also need to know this information for the same reasons that she needs to know about your mental health condition. Again, as with your mental health records, if you do not have a copy of your medical records you should at least provide the names and contact information to your attorney.

____Witness information. If there were witnesses to any of the alleged incidences of discrimination or harassment, your attorney will find it beneficial to have a list of their names and contact information, if known. This will save your attorney leg-work in trying to track down witnesses who may support, or disagree with, your allegations.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

Documentation Is The Winning Formula

By Bryan A. Chapman, Esquire

For most workers, real-time documentation of a supervisor’s discriminatory behavior can be the key to a successful outcome in a discrimination case. This is particularly true if the case goes to court.
Employers win the vast majority of discrimination cases because they constantly document their workers’ job performance. When an employer terminates a worker, that employer will have already created documentation that indicates that the worker’s termination was due to deficient job performance as opposed to discrimination.
If a worker documents a supervisor’s discriminatory behavior in real-time, he may be able to demonstrate that the employer’s allegation of deficient job performance was a pretext for discrimination.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer