FMLA retaliation/perceived disability/hostile work environment/intentional infliction of emot stress

Consider filing a complaint of harassment

The FMLA prohibits an employer from "in any manner" discriminating against an employee who takes FMLA leave. This would include discriminatory harassment. The problem, however, is that the remedy available to the victim of harassment is recovery of lost wages and actual costs. Therefore, if an employer harasses an employee for taking leave but does not terminate the employee or otherwise cause the employee a financial loss, the employee cannot recover anything.

If the harassment is so severe that a reasonable person in your shoes would feel compelled to resign, you could claim that the employer "constructively" terminated your employment and seek your lost wages. However, it is very difficult to prove a constructive disharge. I do not recommend this without a clear understanding of the risks and what you need to prove a constructive discharge.

Another option is to file a complaint of harassment. This might make the harassment stop. If it does not, it could provide a better remedy of retaliation for asserting a protected right. I strongly recommend formulating the complaint with the help of an attorney, however, to obtain the most protection and to make sure that you do not unnecessarily aggravate the employer.

Best regards,

Neil.

posted by Neil Klingshirn  |  Jan 13, 2003 10:24 AM [EST]