Atlanta Employment Lawyer Blog

Many times people worry if they complain to their boss or supervisor about harassment, they may be retaliated against. In order to protect workers and encourage reporting, federal law makes it illegal to “retaliate” against employees who complain about discriminatory conduct. Retaliation includes negative employment actions such as firing, but also less obvious actions such as changing your work hours to a worse schedule, not promoting you, or assigning you to a different or more inconvenient location.

If you believe your employer has retaliated against you after complaining about discrimination or harassment, you may be able to bring a lawsuit for both the underlying action and retaliation. In fact, even if you’re not able to prove discrimination, you may still be able to win a claim for retaliation as long as you reasonably believed you were discriminated against.

A recent Oregon case found that the actions of a company firing a gay man two days after he complained of verbal abuse and harassment could be considered retaliation under federal law and should be decided by a jury. The court also found that he could bring a state case for harassment and sexual orientation discrimination.

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Many times we suffer long term or significant injuries that keep us from fully engaging in all the activities we want to. If an injury, illness, or condition keeps you from adequately participating in a major life activity it may be considered a legal “disability” and entitle you to certain rights at work. A “major life activity” is generally defined to include those things that most people can do with little or no difficulty, such as caring for yourself, hearing, speaking, breathing, standing and lifting.

If you are considered disabled, federal law provides both that you can’t be fired as a result of your disability and that your employer must put forth an effort to make reasonable changes that will help you to do your job – such as possibly allowing you to come into work later or making your office or work space easier to access. You may also be allowed not to perform certain parts of your job that may be painful or difficult due to your disability. If an employer doesn’t make these changes, you may be able to bring a disability discrimination lawsuit under the Americans with Disabilities Act or the Americans With Disabilities Act As Amended (ADA or ADAAA).

A recent case determined that if you bring a lawsuit under the ADA, medical evidence of a disability may not be required. Your own personal statements concerning your daily functioning, or that of anyone else who has knowledge of your day-to-day activity, are enough to show the extent of your disability or impairment.

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An Oklahoma judge recently ruled that your past sexual experiences do not affect your right to bring a case for harassment. In a lawsuit against Digicut Systems, a judge determined that a former prostitute – Susan Terry - could bring a case for sexual harassment. Terry, who had previously run a tanning salon that doubled as a brothel, said that her supervisor at Digicut made unwanted and offensive sexual advances toward her.

A main issue in sexual harassment cases is if the person claiming harassment truly feels uncomfortable and offended by the sexual conduct. Each case is different and depends on how the unwelcome conduct makes the specific person claiming harassment feel. Digicut argued that Terry couldn’t feel offended because in the past she had acted “much more sexually inappropriate” than the actions she is suing for.

Terry responded that she had changed her ways since being convicted in 2000 of prostitution, and now was a married woman and a “committed Christian.”

The judge left the decision of whether she felt harassed for a jury to decide, but stated that a person’s past sexual history should not determine whether you have a legitimate harassment claim.

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A Texas jury awarded a white man who was fired $5.8 million in a “national origin discrimination case.” Federal law prohibits employers from treating any employee worse than another because of his or her ethnicity or accent, or if they believe the person is of a particular nationality. Examples of national origin discrimination may include an employer requiring that workers only speak English, making fun of someone's accent, or telling ethnic jokes.

National origin discrimination laws were written as the result of the post-911 anti-immigrant atmosphere, but wrongful discrimination can happen to anyone.

In the Texas case, a white HR director was fired by his employer – El Paso Electric – in order to protect the company from a potential lawsuit. The vice president of HR testified at trial that because El Paso Electric feared a lawsuit from a recently fired Hispanic HR director, they decided to fire the “white guy” as well so the firing didn’t appear like discrimination.

After the verdict, the HR VP commented, “This case is a reminder that discrimination laws apply to people of all races and national origin…Employers need to be aware that white employees will also feel that they are being discriminated against and not to take them for granted.”

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On December 22 the Senate approved the nomination of Jacqueline Berrien as the chair of the Equal Employment Opportunity Commission (“EEOC”).

The EEOC is responsible for enforcing Title VII and other federal laws making employment discrimination illegal on the basis of race, color, national origin, religion, age, disability or genetic information. These laws cover most places of business that employ over 15 employees.

The Senate also unanimously confirmed Commissioners Chai Feldblum and Victor Lipnic as well as General Counsel P. David Lopez. In March, Berrien and the other two commissioners began serving recess appointments after an anonymous hold in the Senate had blocked a vote on the president’s nominations.

In announcing her nomination, President Obama noted that Berrien “has spent her entire career fighting to give voice to underrepresented communities and protect our most basic rights.”

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