Reasonable Accommodation Process

Source: D.C. Government’s Office of Disability Rights

Request Process – Employee Requests an Accommodation

Employees or applicants with disabilities may request reasonable accommodations of the employer, regardless of title, salary, grade, bargaining unit, employment status (permanent, temporary, provisional, emergency) or civil service status (regular, exempt). This request does not have to be in writing, be formal or use any special language. An individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”

Here are some examples from the Job Accommodation Network:

Example A: An employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.” This is a request for a reasonable accommodation

Example B: An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.” This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for a reasonable accommodation.

Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

A request for accommodation also may be made by a family member, health professional, or other representative who is acting on the individual’s behalf with the individual’s consent.

The employee usually initiates the reasonable accommodation process by inquiring about the process from a supervisor, Human Resources representative, EEO Counselor, or the ADA Coordinator at the agency. If the supervisor is contacted first, the ADA Coordinator should be brought in early in the process.

If an employee with a known or obvious disability is having performance problems, a supervisor may suggest an accommodation, but only after making a preliminary determination that the performance problem is related to the employee’s disability. This is an exception to the general rule against inquiring about disabilities, and extends only to those with known or obvious disabilities.

The reasonable accommodation does not have to be requested at the beginning of employment. However, a reasonable accommodation request will not cancel out any prior disciplinary actions.

Interactive Process

The ADA requires that the employer engage in an interactive dialogue with the individual with a disability concerning reasonable accommodations. It is best to take a methodical approach in addressing requests for reasonable accommodation from employees.

Immediately upon receiving the reasonable accommodation request, the agency ADA Coordinator/EEO Counselor should schedule a meeting with the employee as soon as possible. The employee’s collective bargaining agent or other person(s) of his/her choosing may assist the employee during this meeting.

The agency’s ADA Coordinator should conduct an informal, interactive discussion with the employee. The discussion should include the following steps:

  1. A review of the agency’s detailed, written job description/vacancy announcement delineating the “essential functions” of the position from the “marginal functions.”
  2. A determination of how the employee’s impairment/disability limits his/her ability to perform the essential functions of his/her job in order to identify the employee as a qualified individual with a disability.
  3. An identification of potential accommodations and assessment of the effectiveness of such accommodations on the employee’s job performance.
  4. Identification of the type of accommodation needed. The Job Accommodation Network can be contacted for assistance in making this assessment at 1 (800) 232-9675 (Voice/TTY) or http://janweb.icdi.wvu.edu.
  5. Consideration of the preference of the employee; however, the agency has the right to select among the alternatives available, as long as they are effective.
  6. Selection and implementation of the effective reasonable accommodation by the agency as expeditiously as possible. Keep the dialogue open with the employee and discuss time lines for obtaining the accommodation and follow up with the employee on unexpected delays.

The agency may find it difficult to accommodate the disability because it is not well understood or because neither the employee nor the ADA Coordinator know what equipment, modification or accommodation will enable the employee to perform the essential functions of the job. The agency ADA Coordinator should consult the Office of Disability Rights (ODR) for additional reference material and service organizations that may help in identifying appropriate accommodations.

Medical Documentation and Confidentiality

If the disability is not obvious, and there is no other medical information already on record for the employee, the agency can require the employee to submit documentation from a physician or other medical professional concerning the existence and extent of the disability. Before consulting with the physician, it is necessary to obtain the individual’s written consent for the release of medical information to the agency.

The employee’s medical information must be maintained in a confidential file separate from the employee’s personnel file or other records and must not be revealed to anyone who does not need to know in order to provide the accommodation. In some instances, the employee’s supervisor does not need to know about the person’s disability or accommodations. In those situations, the information should not be shared with the supervisor.

Information about the employee’s disability or accommodations should not be revealed to co-workers, customers, or members of the public.

ADA Determination

After the initial meeting and review of medical documentation (if submitted by the employee’s healthcare professional), the agency will make a determination whether the employee is a qualified individual with a disability and develop a Reasonable Accommodation Plan for the employee.

Reasonable Accommodation Plan

The Reasonable Accommodation Plan will:

  1. State whether the employee is a “qualified individual with a disability” as defined by the ADA;
  2. Outline the employee’s essential job functions needing accommodation;
  3. Recommend types of accommodation; consideration will be given to the preference of the employee, however, the agency has the right to select among the alternatives available; and
  4. Determine whether any accommodation causes an undue hardship or poses a direct threat.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Filing a Discrimination Claim – Virginia

Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion.  Each state has passed laws and rules to protect your workplace rights: this page covers Virginia employment discrimination.  The purpose of the Virginia Human Rights Act is to protect workers in Virginia from unlawful discrimination in employment. Read below to learn more about Virginia employment law and how the law protects you.

1. What kinds of discrimination are against state law in Virginia?

The Virginia Human Rights Act makes it illegal for an employer to discriminate on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status or disability (physical or mental).

2. How do I file a discrimination claim in Virginia?

A discrimination claim can be filed either with the state administrative agency, the Virginia Division of Human Rights (DHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

The Virginia anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 6 and 14 employees, you should file with the DHR, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency.

To file a claim with the DHR, contact its office below. More information about filing a claim with the DHR can be found at the DHR website.

Division of Human Rights
202 North Ninth Street
Richmond, VA 23219
Phone: (804) 225-2292

To file a claim with the EEOC, contact your closest local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC Filing a Claim page.

Norfolk Area Office
Federal Building, Suite 739
200 Granby Street
Norfolk, VA 23510
Phone: 757-441-3470
TTY: 757-441-3578

Richmond Area Office
400 N. Eight Street
Suite 350
Richmond, VA 23230
Phone: 800-669-4000
TTY: 800-669-6820

Washington Field Office
131 M St., NE
Fourth Floor Suite 4NWO2F
Washington, D.C. 20005
Phone: 1800-669-4000
TTY: 1800-669-6820

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the DHR or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the DHR (or cross-file with the EEOC) within 180 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

You may also wish to check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law, or “ordinance.” Some cities and counties in Virginia have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” Check your local telephone directory or government website for further information.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

5. How can I or my attorney pursue a claim in court in Virginia?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the DHR or EEOC and you may want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the DHR.

Because Virginia’s state anti-discrimination statute does not permit the compensatory (emotional pain and suffering) and punitive damages (intended to punish the employer) that are allowed under federal law, and severely limits attorneys fees and back pay awards, many Virginia attorneys choose to file employment discrimination cases in federal court using federal law. A case filed in state court using federal law may be subject to removal, which means that a defendant employer requests to move the case to federal court because it involves a federal statute, such as Title VII or the ADEA.

Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161), only then can you file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.) A lawsuit based on your state claim must be filed within 180 days from the date you believe you were discriminated against. An investigation by the DHR does not delay this deadline. These deadlines are called the “statute of limitations”. Please be aware, however, that you may have other claims arising out of your employment relationship which have shorter statutes of limitations.

If you have received one of these agency dismissal notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Filing a Discrimination Claim – Maryland

Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion.  Each state has passed laws and rules to protect your workplace rights: this page covers Maryland employment discrimination.  The purpose of Maryland antidiscrimination law is to protect workers in Maryland from unlawful discrimination in employment. Read below to learn more about Maryland employment law and how the law protects you.

1. I live in Maryland. What kinds of discrimination are against state law?

Maryland law makes it illegal for an employer to discriminate on the basis of race, sex, , color, ancestry or national origin, age, religion, marital status, sexual orientation, genetic identity, gender identity, disability, or genetic information.

You should also check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination ordinance. Some cities and counties in Maryland have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” While some county information is included below, you may also need to check your local telephone directory or government web site for further information. In addition, if you work for the state government or a local government, special anti-discrimination laws and remedies may apply to you.

In Howard County, it is illegal for an employer to discriminate on the basis of race, creed, religion, handicap, color, sex, national origin, age, occupation, marital status, political opinion, sexual orientation, personal appearance, familial status or source of income. In Montgomery County, it is illegal for an employer to discriminate on the basis of race, color, religion, ancestry, sex, age, national origin, marital status, handicap, sexual orientation, and genetic status. In Prince Georges County, it is illegal for an employer to discriminate on the basis of race, creed, color, sex, age, national origin, occupation, marital status, political opinion, personal appearance, physical or mental handicap, criminal record, or sexual orientation. If you live outside these counties, check with your city or county for further information.  In Baltimore County, it is illegal for an employer to discriminate on the basis of race, creed, religion, physical or mental handicap, color, sex, national origin, age, and marital status.  In Frederick County, it is illegal for an employer to discriminate on the basis of race, color, national origin, sex, age, marital status or disability.

2. How do I file a discrimination claim in my state?

In Maryland, a discrimination claim can be filed either with the state administrative agency, the Maryland Commission on Civil Rights (MCCR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

The Baltimore Community Relations Commission, Howard County Office of Human Rights, Montgomery County Human Relations Commission, and Prince George’s County Human Relations Commission all also have work-sharing agreements with the EEOC, which means that you may also file with one of these local agencies to preserve your claim under local, state and federal law.

Some county antidiscrimination statutes (Prince George’s, Montgomery and Howard) cover some smaller employers not covered by federal law. Therefore, if your workplace has fewer than 15 employees, you should file with your county agency, as the EEOC enforces federal law, which covers only employers with 15 or more employees. (Maryland law also only covers workplaces of 15 or more employees.) If your workplace has 15 or more employees, you may file with the county agency, state agency, or the EEOC; however, some attorneys recommend that you file with either the county agency (if one exists) or the EEOC (if there is no county agency).

To file a claim with the MCCR, contact the closest office below. More information about filing a claim with MCHR can be found at the MCCR website.

Maryland Commission on Civil Rights
William Donald Schaefer Towers
6 Saint Paul Street
Suite 900
Baltimore, MD 21202
Phone: (410) 767-8600
Toll Free: (800) 637-6247
TTY: (410) 333-1737
Fax: (410) 333-1841
Howard County Office of Human Rights
6751 Columbia Gateway Drive
Suite 239
Columbia, MD 21046
Phone: (410) 313-6430
Fax: (410) 313-6468
Montgomery County Human Relations Commission
21 Maryland Ave, Suite 330
Rockville, MD 20850
Phone: (240) 777-8450
Fax: (240) 777-8460
TTY: (240) 777-8480
Prince George’s County Human Relations Commission (HRC)
14741 Governor Oden Bowie Drive
Suite L202
Upper Marlboro, MD 20722
Phone: (301) 883-6170
Fax: (301) 708-8244
Fredrick County Human Relations Department
401 Sagner Ave.
Frederick, MD 21704
Phone: (301) 600-1063
Fax: (01) 600-1636
Baltimore County Human Relations Commission
Drumcastle Government Center
6401 York Road, 1st Floor
Baltimore, MD 21212
Phone: (410) 887-5917
TDD: (410) 339-7520
Fax: (410) 877-6079

There are also MCCR offices in Hagerstown (Western Maryland), Cambridge, Salisbury (Eastern Shore), and Leonardtown (Southern Maryland).

To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC How to File page.

Baltimore District Office
City Crescent Building
31 Hopkins Plaza
Suite 1432
Baltimore, MD 21201
Phone: (410)209-2237
TTY: 1-800-669-6820

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the MCCR, EEOC or your county agency to file a claim. There are strict time limits in which charges of employment discrimination must be filed. In order for these to act on your behalf, you must file with the MCCR (or cross-file with the EEOC) within six months or the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. Some of the county filing deadlines are as follows:

  Howard County – Suit cannot be filed sooner than 45 days after administrative charge is filed with Howard County Office of Human Rights and must be filed within 6 months of the alleged discriminatory act.

  Montgomery County – Suit cannot be filed sooner than 45 days after administrative charge is filed with Montgomery County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

Prince George’s County – Suit cannot be filed sooner than 45 days after administrative charge is filed with Montgomery County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

Baltimore County – Suit cannot be filed sooner than 90 days after administrative charge is filed with Baltimore County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

Frederick County – Suit cannot be filed sooner than 180 days after administrative charge is filed with Frederick County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible, but if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your discrimination claim with the county, state or federal administrative agencies.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

5. How can I or my attorney pursue a claim in court in Maryland?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit. If your case is not resolved by the county agency, MCCR or EEOC, however, you may need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your claim. This process is called “exhaustion” of your administrative remedy. Many counties also require exhaustion through the county agency.

Maryland’s employment discrimination code was amended and now allows employees claiming discrimination violations the ability to sue in state court.   Maryland attorneys also have the option to  file employment discrimination cases in state court using county law if you work in Prince George’s, Montgomery or Howard counties. In Baltimore County, there is a right to sue in court if your employer has fewer than 6 employees, and the law limits the damages you can recover. A case filed in state court using federal law may be subject to “removal,” which means that a defendant employer requests to move the case to federal court, because it involves a federal statute, such as Title VII or the ADEA.

The EEOC must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue,” (Form 161) before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive it.).

In Montgomery, Prince George’s, and Howard counties, you may file a case in court based upon your county claim no later than two years after the discriminatory act occurred, but no sooner than 45 days after filing a complaint with the county agency. Different deadlines may apply in other cities and counties.

These deadlines are called the statute of limitations. If you have received one of these agency dismissal letters, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Filing a Discrimination Claim – District of Columbia

Source: Workplace Fairness

 


1. What kinds of discrimination are against the law in Washington, D.C.?

The D.C. Human Rights Law prohibits discrimination on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation.

The D.C. Human Rights Law is also broader than federal law because you may prove your case by showing that your employer acted wholly or partially for discriminatory reasons, and because you can bring an individual claim against your supervisor for “aiding and abetting” discrimination.

2. How do I file a discrimination claim in Washington, D.C.?

You can file a discrimination claim with the district’s administrative agency, the D.C. Office of Human Rights (OHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

If your workplace has between 1 and 14 employees, you should file with the OHR since only the local anti-discrimination law covers DC employers of this size. Otherwise, some attorneys recommend that you file with the EEOC. Filing with the OHR is not required to pursue a discrimination claim directly in court under the D.C. Human Rights Law. If you do not have an attorney, you may wish to see whether the OHR can assist you in resolving your claim without filing in court. OHR complaints must be filed within one year of the date you believe you were discriminated against.

To file a claim with the OHR, consult its office below. More information about filing a claim with the OHR can be found at the OHR website.

Office of Human Rights
441 4th Street, NW
Suite 570 North
Washington, DC 20001
Phone: (202) 727-4559
Fax: (202) 727-9589

To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC How to File page.

EEOC’s Washington Field Office
131 M Street, NE
Forth Floor, Suite 4NWO2F
Washington, D.C. 20507
Phone: (800) 669-4000
TTY: (800) 669-6820

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the OHR or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. In order for these agencies to act on your behalf, you must file with the OHR (or cross-file with the EEOC) within one year or with the EEOC (or cross-file with OHR) within 300 days of the date you believe you were discriminated against. However, since you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. If you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the district and federal administrative agencies.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, they may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If the EEOC decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

5. How can I or my attorney pursue a claim in court in Washington, D.C.?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit. You probably will be required as to sign a release of your legal claims to resolve your case. If your case is not resolved by the OHR or EEOC and you want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Exhaustion is not required to file a discrimination claim in court based on D.C. law.

Because D.C. law does not limit the damages recoverable for a discrimination claim, many D.C. attorneys choose to file employment discrimination cases in D.C. Superior Court. However, most cases may be brought in either D.C. or federal court.

Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or D.C. court within 90 days after the date you receive the notice. Be sure to mark down that date when you receive the notice. A lawsuit based on your D.C. discrimination claim must be filed within one year of the date you believe you were discriminated against.

These deadlines are called the “statute of limitations.” If you have received one of these EEOC notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, you may lose your ability to pursue a discrimination case in court.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Labor Laws and Issues

 

Source: USAGov

Learn about some important employment laws and issues.

Discrimination and Harassment at Your Job

The Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting employment discrimination. These laws protect employees and job applicants against:

  • Discrimination, harassment, and unfair treatment in the workplace by anyone because of:
    • Race
    • Color
    • Religion
    • Sex (including gender identity, transgender status, and sexual orientation)
    • Pregnancy
    • National origin
    • Age (40 or older)
    • Disability
    • Genetic information
  • Being denied reasonable workplace accommodations for disability or religious beliefs
  • Retaliation because they:
    • Complained about job discrimination
    • Helped with an investigation or lawsuit

Filing a Complaint with State or Local Government or Tribal Employment Rights Office

To file a complaint, contact your state, local or tribal employment rights office.

Many state and local governments have their own anti-discrimination laws. These laws may offer extra protections beyond federal laws.

Some state laws:

  • Apply to businesses with only five or six employees
  • Prohibit discrimination based on whether you’re married or have children
  • Have different deadlines for filing a charge
  • Have different standards for deciding whether you’re covered by them

Many state laws have more protections for nursing mothers than federal law requires. State labor offices enforce these laws.

Filing a Lawsuit

If you’re a victim of job discrimination or harassment, you can file a lawsuit. If the discrimination violates federal law, you must first file a charge with the EEOC. (This doesn’t apply to cases of unequal pay between men and women.)

You may decide to sue if the EEOC can’t help you. In either case, look for an attorney who specializes in employment law. You can check with:

Not All Employers Are Subject to EEOC Laws

An employer must have a certain number of employees to be covered by EEOC-enforced laws. This number varies based on the type of employer and the kind of discrimination alleged.

  • Businesses, state, and local governments must follow most EEOC laws if they have 15 or more employees.
  • Federal agencies must follow all EEOC laws, no matter how many employees they have.

Laws that the EEOC Enforces

Federal employment discrimination laws include:

Harassment

Harassment is unwelcome conduct based on:

  • Race
  • Color
  • Religion
  • Sex
  • National origin
  • Age
  • Pregnancy
  • Disability
  • Genetic information

It can include:

  • Offensive jokes
  • Physical assaults or threats
  • Ridicule or insults
  • Display of offensive objects or pictures

Sexual harassment may include:

  • Unwelcome sexual advances
  • Requests for sexual favors
  • Other verbal or physical harassment of a sexual nature
  • Offensive remarks about a person’s sex

Harassment becomes illegal when:

  • It creates a hostile or abusive work environment
  • The victim gets fired or demoted for refusing to put up with it

Protection from Retaliation

EEOC laws protect employees and job applicants from retaliation. For example, it’s unlawful to punish people for:

  • Filing or being a witness in an EEO charge or investigation
  • Talking to a supervisor or manager about discrimination or harassment
  • Refusing to follow orders that would result in discrimination
  • Resisting sexual advances, or intervening to protect others

Employment Background Checks

Local, state, or federal government agencies and private employers may perform background checks when they hire an employee.

The FBI has contact information for the state agencies that conduct background checks.

Request a Copy of a Federal Background Check or an Identification Record

The FBI website has information on how to request a federal background check or an identification record request.

Following the information on how to request a federal background check, you’ll find information on how to challenge inaccurate or incomplete information that appears on your record.

Arrest Records

If you are looking for information on arrest records, contact the appropriate law enforcement agency.

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal labor law that allows an eligible employee to take an extended leave of absence from work due to:

  • Illness
  • Caring for a qualifying sick family member
  • The birth or adoption of a child
  • Military caregiving or other emergencies related to a family member’s active duty service

 

This unpaid leave is guaranteed by law and is available to workers at companies with 50 or more employees. FMLA fact sheets can help you understand your rights and coverage.

Questions or Reporting a Violation of the FMLA

If you have unanswered questions about the FMLA or you believe someone has violated your rights under FMLA, contact the Department of Labor’s Wage and Hour Division for assistance.

Employer Information

Employers with FMLA eligible employees have specific rights and responsibilities under the law. Learn how different types of employers may be covered by the FMLA.

If you are an employer with concerns about false FMLA leave, contact the Wage and Hour Divisionwith any questions about FMLA compliance and seek the advice of your company’s legal and human resources departments.

Labor Unions

A labor union or trade union is an organization of workers which bargains with employers on behalf of its members. The purpose of a labor union is to negotiate labor contracts. Elected leaders of labor unions negotiate specific items of employment including:

  • Pay and benefits
  • Working conditions
  • Complaint procedures
  • Hiring and firing guidelines
  • Help with unfair labor practices

When a union leader negotiates an agreement, it’s binding on the union members and the employer. Sometimes, these agreements affect non-union workers as well. Labor unions can be found in the private sector and at government agencies.

Private Sector (Non-Government) Employees

The National Labor Relations Board (NLRB) is an independent federal agency. It oversees and protects the rights of most private-sector (non-government) employees. The NLRB helps employees determine whether to have unions as their bargaining representative.

  • You or your co-workers can start, join, or end union representation by filing a petition form. Your petition must show the support of at least 30 percent of your fellow employees.
  • If you have a complaint about a union, contact your nearest NLRB regional office.
  • The NLRB does not handle certain forms of employment discrimination including:
    • Race
    • Sex
    • Workplace safety
    • Entitlement to overtime pay
    • Family and medical leave

Visit the related agencies section of the NLRB website to see which state or federal agency can help with your specific complaint.

Federal and State Government Employees

  • If you’re a federal employee and have a question or complaint about federal unions, contact the Federal Labor Relations Authority (FLRA). The FLRA an independent federal agency responsible for the labor-management relations program. It establishes policies and resolves disputes for most federal employees and their managers.
  • If your federal agency doesn’t have a union, you and your co-workers can start one. Contact an FLRA regional office and file a petition form (PDF, Download Adobe Reader).
  • If you’re a state or local government employee and have a question about unions, contact the information officer of the NLRB regional office closest to your job.

Minimum Wage, Overtime, and Misclassification

The U.S. Department of Labor’s Wage and Hour Division (WHD) administers and enforces some of the nation’s most comprehensive labor laws. They include:

Minimum Wage

  • The federal minimum wage is the lowest legal hourly pay for many workers. Tipped employees may have a different wage.

Overtime Pay

An employer may require or permit a worker to work overtime. The Fair Labor Standards Act states that workers who clock more than 40 hours per week are to get overtime pay. There are few exceptions to this rule.

Misclassification

An employer says a worker is an independent contractor. The law says the worker is an employee. That’s misclassification, which can:

  • Affect a worker’s pay, protections, and benefits
  • Cause tax problems for both businesses and workers

Resources and Next Steps

Learn About Your State’s Labor Laws

Labor laws vary by state. Contact the state government for information about specific laws where you work.

Unsafe Workplace Complaints and Conditions

Several different federal government agencies handle questions or complaints about workplace issues, depending on the nature of the issue:

Workers’ Rights

As an employed worker, you’re entitled to certain rights in the workplace – especially ones that keep you safe. These include the right to:

  • Be trained in a language that you understand
  • Be provided with the necessary safety equipment
  • Report injury or illness
  • Voice your concern over unsafe working conditions without fear of retaliation

In order to improve safety in the workplace, the Occupational Safety & Health Administration (OSHA) updated its existing rules regarding how employers must report injury or illness in the workplace.

As of January 1, 2017, certain employers are required to electronically submit injury or illness data. Doing this allows OSHA to improve enforcement of workplace safety requirements and provide valuable information online for workers, job seekers, customers, and the general public. The new rule also prohibits employers from discouraging their workers from reporting an injury or illness.

Workers’ Compensation

Workers’ compensation laws protect employees who get hurt on the job or sick from it. The laws establish workers’ comp, a form of insurance that employers pay for. These laws vary from state to state and for federal employees.

Benefits Provided by Workers’ Compensation

In general, workers’ comp provides:

  • Coverage for workers’ medical expenses
  • Compensation for lost wages while a worker is out recovering
  • Benefits for dependents of workers who died from job-related hazards

Private Sector and State or Local Government Employees

If you get hurt working for a private company or state or local government, seek help through your state. Your state workers’ compensation program can help you file a claim. If your claim is denied, you can appeal.

Longshoremen, Harbor Workers, Coal Miners, and Federal Employees

Federal laws protect longshoremen, harbor workers, coal miners, and federal employees. Contact the workers’ compensation program that applies to you for help filing a claim.

Wrongful Discharge/Termination of Employment

If you feel that you have been wrongfully fired from a job or let go from an employment situation, you may wish to learn more about your state’s wrongful discharge laws.

  • Wrongful termination or wrongful discharge laws vary from state to state.
  • Some states are “employment-at-will” states, which means that if there is no employment contract (or collective bargaining agreement), an employer can let an employee go for any reason, or no reason, with or without notice, as long as the discharge does not violate a law.

 

If you feel you have been wrongfully discharged or terminated from employment, you may:

Employers

If you are an employer seeking information about legal termination of employees, you may wish to contact both the Equal Employment Opportunity Commission (EEOC) and your State Labor Office to ensure you do not violate any federal or state labor laws. You may wish to consult with a licensed attorney.

Youth Labor Laws

Youth labor laws help keep young workers safe on the job and keep work from interfering with school. They can also protect teens from job discrimination.

Youth Rights and Restrictions on Types of Work, Hours, and Pay

If you’re under 18 and want to get a job, it’s important to know what rights and restrictions you have as a worker. Youth labor laws exist to protect you from unsafe and inappropriate work experiences. They’re also meant to ensure your job doesn’t interfere with your schooling. These laws establish:

  • What types of work you’re allowed to do
  • When you’re allowed to work
  • How many hours per week you’re allowed to work
  • How much you should be paid

The Department of Labor’s Youth Rules website helps you:

  • Know the Rules: Select your age and learn what work you’re allowed to do and when you’re allowed to work.
  • Find Support: Learn about other agencies that can help you and learn how to file a complaint.

Youth Rules also helps employers, parents and educators stay informed. And it has a law librarywith federal and state youth employment laws. The rules for young employees are different depending on your age and the state you live in. When federal and state rules are different, the rules that provide the most protection apply.

Safety and Health Standards for Teens on the Job

Employers must follow all Occupational Safety & Health Administration (OSHA) standards. These help protect you from injury at work. Besides following the federal and state rules on youth labor, employers must:

  • Provide a hazard-free workplace
  • Give you training on potential workplace safety issues
  • Provide you with resources to answer your questions on safety or health in the workplace
  • Tell you what to do if you get hurt on the job

OSHA provides resources for young workers, including information on how to protect yourself in jobs in:

  • Restaurants
  • Agriculture
  • Construction
  • Landscaping

Civil Rights Protections for Teens at Work

Youth@Work, a division of the Equal Employment Opportunity Commission (EEOC),  will help you:

  • Learn your rights as a young worker
  • Identify workplace discrimination
  • Learn what laws are enforced by the EEOC
  • File a complaint if you suspect workplace discrimination



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



What Are Some Effects of Discrimination in the Workplace?

Source: UpCounsel

There is a seemingly endless number of behaviors that meet the definition of discrimination in the workplace when they’re used as a result of someone’s personal characteristics or an employee reporting the incident to management. Here are a few of the most common:

  • Denial of employee compensation or benefits
  • Denial of disability leave, maternity leave, or retirement options
  • Termination
  • Loss of shifts or less desirable shift
  • Suggestion of a preferred candidate on a job advertisement based on personal characteristics
  • Denial of use of company facilities or benefits
  • Favoritism when issuing promotions or company restructuring
  • Exclusion of candidates from the hiring process
  • Off-color comments or inappropriate jokes that cause stress to an employee

While these are just a few of the types of discrimination, it’s also important to note that it can come in many ways. Discrimination can be indirect, direct, unintentional, or intentional.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Types of Workplace Discrimination

Workplace discrimination

What is workplace discrimination, and what constitutes discrimination against employees or job applicants? Employment discrimination happens when an employee or job applicant is treated unfavorably because of his or her race, skin color, national origin, gender, disability, religion, or age.

It is illegal to discriminate based on race, religion, gender, or national original when hiring or in the workplace.

It is illegal to discriminate in any facet of employment, so workplace discrimination extends beyond hiring and firing to discrimination that can happen to someone who is currently employed.

What Is Employment Discrimination?

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in hiring, discharge, promotion, referral, and other facets of employment, on the basis of color, race, religion, sex, or national origin. This is enforced by the Equal Employment Opportunity Commission (EEOC).

In addition, federal contractors and subcontractors must take affirmative action to guarantee equal employment opportunity without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. Executive Order 11246 is enforced by the Office of Federal Contract Compliance Programs (OFCCP).

Distribution of EEOC Complaints

The EEOC reported the following breakdown for the charges of workplace discrimination that were received by the agency in 2018:

  • Retaliation: 39,469 (51.6% of all charges filed)
  • Sex: 24,655 (32.3%)
  • Race: 24,600 (32.2%)
  • Disability: 24,605 (32.2%)
  • Age: 16,911 (22.1%)
  • National Origin: 7,106 (9.3%)
  • Color: 3,166 (4.1%)
  • Religion: 2,859 (3.7%)
  • Equal Pay Act: 1,066 (1.4%)
  • Genetic Information: 220 (0.3%)

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



D.C. Sees Latest Test Case for Employees Seeking “Reasonable Accommodation” for Off-Duty Medical Marijuana Use

The American Civil Liberties Union (ACLU) filed suit last week in the D.C. Superior Court on behalf of Doretha Barber, a sanitation worker with the D.C. Department of Public Works, who claims that she was denied reasonable accommodation and placed on an indefinite leave of absence after disclosing that she is a medical marijuana card-holder under the District’s medical marijuana program.  Specifically, Ms. Barber alleges that she suffers from degenerative disc disease which causes her debilitating back pain and for which she was recently prescribed medical marijuana for off-duty use only.  When Ms. Barber requested a temporary transfer to a clerical position during the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and after she disclosed that she possessed a medical marijuana card, she was allegedly placed on an unpaid leave of absence and told that she could not resume her duties as a sanitation worker until she successfully passed a drug test (which she would inevitably fail due to her medical marijuana use) because she was working in a “safety sensitive position.”

The District’s actions appear to be in response to a new D.C. law providing employment protections to D.C. government employees who are lawfully enrolled in a medical marijuana program.  This new law, which is pending Congressional approval but is expected to take effect October 31, 2019, would prohibit the D.C. government from taking any type of adverse employment action against individuals participating in a medical marijuana program, unless they were working in a “safety sensitive position.”  Barber has argued that the D.C. Public Works recently characterized all sanitation workers as “safety sensitive” positions, notwithstanding the fact that she does not operate a vehicle or operate any heavy machinery.

Unlike other employees who have unsuccessfully attempted to seek federal employment protection under the Americas with Disabilities Act (ADA) due to the fact that marijuana remains an “illegal drug” under the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the latest in a recent trend of employees seeking to utilize state or local anti-discrimination laws as a means of requiring their employers to provide “reasonable accommodation” of their off-duty medical marijuana use.

As many of our Blunt Truth readers may recall, a New Jersey Court of Appeals recently revived a funeral director’s medical marijuana disability discrimination suit in Wild v. Carriage Funeral Holdings.  In that case, which is set to be heard by the New Jersey Supreme Court this fall, the court held that while New Jersey’s Compassionate Use Medical Marijuana Act does not require accommodation of medical marijuana use, New Jersey’s Law Against Discrimination might require an employer to provide reasonable accommodation and overturned the lower court’s dismissal.

The ACLU seemingly seeks to extend this case law to D.C. with this new lawsuit in an attempt to seek new employment protections for medical marijuana users – particularly for those in the private sector in D.C. where employers are currently not prohibited from taking employment action against those using marijuana for medical reasons consistent with D.C. law.  While it remains to be seen how this new lawsuit will be resolved in the courts, it serves as yet another cautionary tale for employers who maintain blanket policies prohibiting any type of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.

What Employees Need to Know About D.C.’s Medical Marijuana Laws.

As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users.  Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.

The Act states, “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”

The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.

Act Number A23-0114 specifically protects District of Columbia government employees who are medical marijuana users, but it does not protect private sector employees or federal employees who are medical marijuana users.  Nationally, laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.

In the past, an employer could terminate an employee who tested positive for marijuana.  The Americans with Disability Act (ADA) does not protect medical marijuana users and declares marijuana an illegal substance.

However, the current trend, in some state and local courts, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in states and localities where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users.

Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users.  A private sector employer could terminate an employee who failed a drug test for marijuana, even if the employee is a medical marijuana user.  Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”)

However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether a District of Columbia court, applying local laws, could determine that private sector District of Columbia employees who are medical marijuana users have similar protection.

Bryan A. Chapman, Esquire

bchapman@baclaw.com

www.baclaw.com

202 508-1499