FREE BONUS - 1st Chapter of my EEOC Book
My EEOC Book is going through an update - but here's the first chapter for free.
In 2016, I wrote a book to help employees go to the EEOC or its state/local equivalent — a requirement for anyone whose religious accommodation rights or medical accommodation rights have been violated. As I am still working on the extended information for both of those two topics in the COVID-19 context, for now I’ve included the first full chapter here for JabFreeJobs subscribers - the full book is available as an Ebook on Amazon. At $5.99 it’ll save you about $494.01 off the cost of an initial consultation with an employment lawyer.
Chapter 1. Self-Diagnosis—Before You Go To The EEOC
What’s Your Employment Status?
Are you A) still working or B) have you quit or C) been fired? Based on your answer, feel free to jump directly to the appropriate section below to jump-start your reading.
A) I’m Still Working
Great! You’re more fortunate than many employees who have faced illegal actions in the work place. If it is getting really hard though, I imagine you’re about ready to quit.
I cannot stress this enough. Unless your current situation is severely health-threatening, physically or mentally dangerous, or requires you to commit criminal acts, do not quit! Quitting will significantly harm your ability to recover lost wages (also called “back pay”) at the end of the EEOC process. It could make your case less attractive to attorneys as well.
If you’re still employed (and I hope you are), I want you to change your thinking and imagine yourself as your own “undercover spy.” You are no longer John (or Jane) Smith, Harassed Employee—you are now Secret Agent Smith, quietly gathering evidence and taking action that will help your case at the EEOC or in a possible lawsuit. Every illegal thing that happens to you is simply one more thing to document for your case later. Staying employed can be one of the best things for your case later on. We’ll talk about how and why in a bit.
B) I Already Quit My Job
This is difficult to say and probably difficult to hear, but if you’ve already quit, it may be harder for the EEOC or an attorney to help you. Look, I know it must have been awful for you to reach the point where you had to quit. I get it; I hear heart-breaking stories all the time, about situations that I wouldn’t wish upon anyone! However, once you quit your job, even if your employer clearly violated the law, you likely won’t have the remedy of lost wages. because you ended your own employment! You made yourself “lose” those wages, so you can’t get them back later.
Now, if your situation was bad enough and the illegality is very clear to the EEOC, you may still be able to recover compensatory damages (out of pocket expenses or emotional distress) or in some cases punitive damages. But not lost wages, unfortunately.
There is one exception to the “Don’t Quit” rule: it’s called “constructive discharge.” According to the EEOC, a discriminatory “constructive discharge” occurs when the employer discriminatorily creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in the employee’s position would feel compelled to resign. In other words, you are essentially forced to resign under circumstances where the resignation is practically the same thing as the employer firing you.
Now, that sounds like you can just quit when it gets bad and then tell the EEOC it was “constructive discharge,” right? Not so fast! It’s not enough for YOU to feel that way—you will have to convince the EEOC (and maybe a judge and jury later) that ANYONE in your situation would have felt that way. That’s a tough sell, so don’t assume that constructive discharge applies to your situation. Talk to an attorney BEFORE you quit. Furthermore, there may be specific rules that apply to constructive discharge in your state for any state law claims.
C) I’ve been Fired
Most people that call me in Arizona (where I practice employment law) are already in this last category. Take heart: you are the main audience for whom I wrote this book! If you’ve been fired, I know you have a lot on your mind. But you also have the opportunity to chart your own course for the future. And if you were fired illegally, you can do something about it. It’s time to get started.
Before going any further, I also want to address a few common misconceptions that people often make when they are analyzing their employment situation.
“I Was Harassed/In A ‘Hostile Work Environment.’”
A LOT of people use these “buzz words” when they talk to me. But there is no such thing as a claim for general “hostile work environment” or general “harassment.” Put another way, it is not illegal for your boss to be a “big jerk.” I don’t care if he or she yells and screams at you all day, that’s not enough to take to the EEOC. To make your case at the EEOC, the boss has to be a jerk because of some characteristic about you in particular: your race, your religion, your national origin, your disability, etc. (we’ll cover these in more detail later). If your situation is only a personality conflict, your case will never get off the ground legally—no matter how bad the conflict.
“Reporting The Problem To My Manager/Human Resources Won’t Help Me.” This is a big mistake to make. When I ask people if they complained to a manager or to HR about their mistreatment, they often say “no, because that wouldn’t have done any good.” While that may be actually true, it is VERY important that you make a report anyway, every time something illegal happens. This is especially true if it is a co-worker and not a supervisor who is the problem. Then, if your company fires you or otherwise harms you for reporting harassment or discrimination, you can still win your case later - even if you can’t prove actual harassment or discrimination! This type of claim is called “retaliation,” but it only works if you actually reported the problem somewhere meaningful. Complaining to your work buddy isn’t enough. Speaking of reports….
“A Verbal Report Is Just As Good, Right?” No, it is not. To the EEOC and the courts, it is MUCH BETTER if you have written proof of your harassing or discriminatory experience, AND written proof of reporting it to a manager or HR. An email, or sometimes even a text message, will do as long as it is clear. If you only have the information verbally, this will stay a “he said/she said” case and be very difficult to prove. If you can legally record the situation or the conversation with HR by using a smartphone or some other device (first, check your state’s laws on secret recording), then you will have more good proof of what happened. And when you make a report, don’t fill it with legal-ish words that you borrowed from the internet. Be specific: “I think so-and-so is mistreating me, and I think it’s because of my age. Here’s why I think that….” You have to put them “on notice” of the specific reason (or reasons) you believe you are being harassed or discriminated against, or you will not be able to make a retaliation claim later.
“They Can’t Fire Me Just Because I Was Making Too Much Money.” Sadly, yes, they can. If you’ve been there a while, and you are at the top of the pay scale, they can cut your pay or replace you with a lower-paid worker without it being illegal. (JWC Note: you may have different rights if you’re in a union). Now, if you’re over 40, you might have an age discrimination claim (especially if they didn’t offer you a pay cut first), but the case won’t work if they only (or primarily) fired you because of your pay.
“My Company Violated My Free Speech/Privacy Rights.” Unless you work for the government, private companies are not required to honor the First Amendment and give you free speech rights. They also have the full right to monitor your work, including the ability to read your work email. If you’re at work, you don’t have general “privacy” rights—except in a few special categories of information such as medical information.
“My Case Is Worth Millions!” Everyone has seen articles or blogs or news stories (or has “heard”) of jury awards being millions of dollars. Sorry, but it’s highly unlikely in any employment case. The federal laws administered by the EEOC put limits on what you can recover as compensatory or punitive damages. The limits are calculated based on the total number of employees that worked for the company. The maximum recovery for compensatory/punitive damages against a large company is $300,000. Even if a jury awarded more than that, the judge would actually have to reduce the amount to the proper limit according to the law. More on remedies and how they work later.
“I Should Have Gotten A Severance Package.” Again, in any state with “at will” employment (meaning you can quit or they can fire you without penalty), you are not entitled to a severance package. Does it seem right that they can just cut you loose after you gave them your entire 20s and 30s (and beyond)? No. Can they legally do that without a severance package? Generally speaking, yes, they can.