Q: What is illegal discrimination?
A: Illegal discrimination is making a difference in treatment, at least in part, because of race, color, creed, sex, sexual orientation, gender identity, age, place of national origin, or condition of disability or pregnancy.
Q: What creates a hostile environment?
A: A workplace which is permeated with discriminatory intimidation, ridicule, and insult, which is sufficiently severe or pervasive to alter the worker’s conditions of employment and create an abusive working relationship. Factors that the courts use to determine whether or not the environment is sufficiently hostile to justify bringing a lawsuit include the following kinds of things:
1. The frequency of the conduct,
2. The severity of the conduct,
3. Whether the conduct is physical or verbal,
4. Whether it unreasonably interferes with a worker’s performance, and
5. The effect of the conduct on its victims.
The harassment must be objectively abusive and the worker who files the complaint also must experience it as abusive. Only workers who are in a hostile environment based on their race, color, creed, sex, sexual orientation, gender identity, place of national origin, age, or condition of disability, can bring a civil rights complaint. Workers who are being mistreated for other reasons, whether fair or unfair, do not have the option of bringing a lawsuit. They can seek assistance through internal company processes or quit.
Q: My employer has treated me unfairly. My supervisor criticizes me in front of other workers, embarrasses me, shouts at me and loads work on me. I believe I am in a hostile environment. Do I have a case?
A: Employers are generally under no obligation to treat their workers fairly. If the adverse treatment is based on some forbidden factor like your race, sex or age, it is illegal. Of course, if you are a union member, you should contact your union representative for help.
Q: But it’s making me depressed and sick. I cry all the time and when it is time to go to work, I get chest pains. What shall I do?
A: Go to the doctor. If your work is making you sick, you may be entitled to workers’ compensation. This is not the kind of work we do, but we can refer you to a lawyer who can help you evaluate your workers’ compensation case.
Q: If I file for workers’ compensation, my employer will find a reason to fire me. Is there any protection available if I get fired for using workers’ compensation benefits?
A: Yes. It is illegal to retaliate against someone for making a workers’ compensation claim.
Q: I just got fired. Many other people did what I did and didn’t get fired. Some people did worse things and didn’t get fired. It’s just not fair. Do I have a case?
A: Treating people unfairly is not illegal. An employer can fire workers for any reason or no reason. Iowa is an “at-will” state, which means that, just as you can quit whenever you want to, the employer can fire you whenever it wants to. It doesn’t need a good reason. It doesn’t have to be fair. There are a few very limited exceptions to the “at-will” employment rule. If you are fired, and a part of the reason is a forbidden factor, you may have an employment discrimination case. The factors an employer cannot use to fire you are your race, your national origin, your sex, your sexual orientation, your gender identity, your age, your condition of disability, if it can be accommodated, and your religion.
If you have a contract that guarantees your employment, you can sue for breach of contract. If your employer has made untrue statements about you that are harmful, you may have a claim for defamation. If the treatment you received violates all the principles of a civilized society, and has caused you very severe emotional distress, you may have a claim for tortious infliction of severe emotional distress. Such a claim is a very difficult case to make. If you are employed by the government, you may have some special rights under the Constitution.
If you are fired for refusing to break the law, you may be able to sue for a violation of public policy. If you are fired because you used the Family and Medical Leave Act or because you were about to get additional pension or other benefits, your rights under ERISA may have been violated.
Q: My supervisor wants me to put false numbers on my records. He says we have to protect the company from the feds. I already did it once, but it made me so upset, I couldn't sleep. Shall I do it again?
A: NO! NO! NO! Never falsify a record, no matter who tells you to do it. You may be the one ultimately blamed. You may be the one who ends up in trouble or in prison. Report your supervisor up the chain of command. Keep very complete records of who you tell, when, and what they say. You may tape record your conversations with others, but not secretly. Take your tape recorder, put it in plain sight, press the record button, and say, “I am taping my conversation with John Doe on July 10, 2000, so we will both have a complete and accurate record of what was said.” Don't be hostile or accusatory. Just state the facts as completely as you can and ask for help.
If you get fired – and you might – you will need two things: (1) your own careful documentation of your efforts to prevent false records being made and the law being violated; and (2) proof of the actual numbers and the correct records. Be very careful not to take any records from your employer that you are not entitled to have. You may store copies of such documents in a computer file on your employer’s computer, which only you can access and is protected by a password. Then when you need them, they will still be there, but you will not have stolen them.
Q: How long do I have to bring a lawsuit?
A: It depends on what the nature of your lawsuit is and where you are bringing it. In Iowa, you must follow these time limits:
1. For employment discrimination, 300 days from the last act of discrimination
2. For car crashes, two years from date of accident.
3. For medical negligence, two years from the date you discover (note: this is a really complicated area with lots of twists and turns).
4. Bad products, two years from discovery (note: also very complicated).
5. Constitutional violations, two years or four years (depending).
6. Breach of oral contract, five years.
7. Breach of written contract, ten years.
8. Fraud, four years.
Filing sooner is usually better than filing later. The one exception is when you have physical injuries that are likely to get better. We may then recommend that you wait until you have reached the point of maximum recovery, or, in other words, until you are as good as you are going to get.
Q: How can I afford a lawyer?
A: In short, yes. Duff Law Firm works mostly on a contingency fee. If you have a winnable case, we are willing to share the risk of losing with you. Our fees will be a percentage of your recovery. In employment cases, the defendant may also pay when we win or settle your case. If we don’t win, we don’t get paid.