Employer Retaliation: Is a Lawsuit Worth It?

By Lindsey Novak

March 8, 2018 5 min read

For the last 9 months, my boss has retaliated against me. I had asked for a simple accommodation due to severe back problems, in which he denied even though I provided a doctor's letter. I am a registered nurse and represented by a union. I work for a large company with 21,000 employees nationwide. This ongoing harassment, retaliation and discrimination against me have taken a toll on my health and stress levels. The union has started a grievance for me, and I have spoken to an attorney who wants to first file an EEOC charge. I am not the only one who is being retaliated against.

My main question is whether I can charge my employer with severe emotional distress that is now causing me added physical problems? I have stress-induced cold sores all over my lower lip and an infection. Can this issue coincide with an EEOC charge? My boss also gave me the most horrendous review of my life last Friday. Can this information be included in my charge, and if not, what kind of attorney would take on my case for my further stress and defamation in my horrendous review?

I think the attorney will do a good job, but I am just wondering if I can add further charges as the retaliation worsens? I am still employed under this boss and it's a very hostile environment.

A: According to Patrick J. Boyd (named Super Lawyer every year since 2013 in the field of employment law) of The Boyd Law Group, PLLC (NY, CT), "This is an interesting inquiry we receive from time to time. As an initial matter, it is important for this person to be patient and give the union fair time to respond. Unions usually take money out of every check to represent you; they are fully funded, experienced and often have their own attorneys that regularly deal with the employers. Since your union dues pay for such representation, they are potentially the fastest route for resolution and also less confrontational, which helps if you want to continue working for your employer."

Boyd says you can indeed often pursue your claim with the EEOC as well, but this tends to be a very slow process. The EEOC is often overwhelmed with cases, and you are likely to get a very modest response to your filing with them in the near term. This is not because the EEOC is uninterested — they are just often understaffed.

The failure to offer your accommodation may be important, but it depends on the reason given. Employers are not required to always accommodate you, just to provide reasonable accommodations as defined by law. A bad review, if it can be proved to be completely meritless, can also help you. Keep in mind that the employer is entitled to make mistakes or have the wrong opinion in a review. A review has to be completely objectively false for it to help you in any significant way — like if you were alleged to be late and you have hard evidence, such as a video, showing that you arrived on time.

To speed up the process, you can file in court, depending on your state's laws, but you must be prepared to devote a significant amount of time and expense to your case in court. That is a very long road and maybe not the best fit for the goals you have.

Regarding damages, you can indeed pursue claims for emotional distress with the EEOC or in court. It can be very difficult to prove emotional damages, however, and without doctors' notes for every claim you make, along with the prescriptions, it is hard to receive significant damages. Most states even have caps on this type of damage. Keep in mind that generally, the easiest damage to prove in employment law claims is the damage of lost wages. You still have a job, so this damage is not really available.

Your best approach is likely to confer with the union and any other attorney you have to develop a good strategy. Often times, simple solutions should be thoroughly explored before getting into complex litigation.

Email life and career coach [email protected] with your workplace questions and experiences. For more information, visit www.lindseyparkernovak.com and for past columns, see www.creators.com/read/At-Work-Lindsey-Novak.

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