Retaliation and pregnancy discrimination, all-in-one!
I recently called HR's attention to the poor behavior of my supervisor, regarding comments she had made about pregnancy and family leave. As this would soon affect me, it was urgent to get it out there before my pregnancy was visible. In the week that HR was gathering more information, my supervisor forwarded me a highly offensive email. I forwarded it to HR as further proof of her disregard for company policy. She was immediately reprimanded and I was guaranteed to NOT be retaliated against. I expressed my concerns at the time that she was a vindictive person and that I wanted to be transferred, but I was assured again of no retaliation, and told that there were no openings available. Only a few months later, after I returned from a weeks bedrest (Dr ordered, miscarriage) I was hit with a 2 page long email from her detailing a laundry list of atrocities I had commited. A coworker told me that the week I was out, my supervisor had spent a lot of her time looking for "dirt" on me. All the accusations were untrue, so I responded point by point and cc'd her boss. I forwarded the email to HR and said I felt that this was the beginning of the retaliation. HR's response was that my response was "insubordinate". Since then I have also received a poor yearly performance review, as well as a "1st reminder". The entire time, I have maintained loudly and verbally to HR, to higher ups, that I was being retaliated against, to no avail. Prior to this episode, I had very positive reviews, including several issues that were suddenly brought up as negatives.
How can I proceed? I am sure I will be given a 2nd reminder followed by a third and then I will be fired.
Answers (1)
Your story is both pretty typical, and unusual.
It is unusual because, initially, your notification to HR had nothing to do with you. Even if that never changed, you'd still be protected under the law for the retaliation that followed.
The retaliatory conduct follows a typical pattern. An employee complains. The employer's HR department makes a big deal of "investigating" the complaint. Employer's seem to have this unjustified idea that going through the motions of performing an investigation will somehow shield them from suit not only on the underlying complaint but also the retaliation. The investigation will invariably in a find of no violation. After the investigation is over, the employee, who not uncommonly had good reviews before, suddenly becomes a performance problem. Warnings are issue. Maybe "performance improvement plans" are issue. Again, it's all a matter of going through the motions, with HR orchestrating the whole thing -- that is their primary job, do CYS for the employer. The idea is to build a paper file to justify termination. Again, the employer seem to have an unjustified idea that the mere act of papering the trial is enough to defeat a subsequent retaliation claim.
You asked what to do next. THe best advise I can give you on this website is get an attorney. Each case is unique. Your needs and concerns might be very different than other people reading this same response. So, you need someone to go through other details of your situation.
I can tell you that, sometimes, employees try to stop the employer from taking the next step leading to termination of employment. On rare occasions, after much effort and expense, the employee might even succeed in getting a court order preliminary stopping an employer's efforts at terminating an employee. But that success is very rare. Generally, there is little that you can do to stop the process leading to termination.
However, having an attorney in on your case may prove very important, answering other questions that may come up, such as: Should I quit before I get fired? (Generally, you are better off getting fired, but depending on your job and your industry, as well as other things, in your particular situation the answer may be different.) Should I sign the papers that the employer may put under my nose before letting me go? (I can't even begin answering this question without knowing what the papers say. I would also need to know the details of the deal being offered, other information about how marketable you are as a employee, and other facts allowing me to assess the value of potential claims you may have against your employer.)
If your case follows the typical scenerio, that is, the employer fires you, your next step would be to file a charge with the EEOC, New York State Division of Human Rights or a local Human Rights Commission, or start a lawsuit, probably in state court. If you follow the right procedures, you can go to federal court. The aim of these filings or lawsuits is compensate you for the loses stemming from the retaliatory conduct (that is, the termination). The biggest component in this is usually loss of wages. In the right case, it might involve other components, such as compensation for emotional distress and punitive damages.
posted by David M. Lira | Dec 4, 2008 1:14 PM [EST]
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