In an employment case, like many cases, a witness’ credibility is important to winning a case. Your supervisor, or a co-employee, makes an obnoxious sexual comment to you or makes some statement indicating hostility toward you based on your medical condition, your race or your national origin.

If you are forced to litigate an employment discrimination claim against your employer, how likely do you think it is that anyone other than you is going to remember the comment 1-2 years after it was made, when witnesses in your cases (including the speaker of the discriminatory comment) are being interviewed (or deposed) in preparation for trial?

The answer is: unlikely. Memories fade. Moreover, speakers of discriminatory comments have no incentive to remember saying them. Witnesses who continue to draw their paychecks from the employer who discriminated against you likewise often do not wish to be perceived as “testifying against” their employer. It is much easier for such witnesses to say, “I don’t recall.”

For these reasons, employment discrimination cases frequently turn into credibility contests. Does the jury believe you, or does it believe the employer’s witnesses?

Your credibility will be enhanced if you just do a couple of things when you are being subjected to the discriminatory acts or comments.

1. Tell your friends and family. If you can produce witnesses who will testify that you reported the discriminatory acts or comments to them at the time you were being subjected to them, such testimony makes you more credible.

2. Keep contemporaneous notes describing the acts or comments. If you can produce a note that you made at the time of the act or comment describing what was said or done and by whom, such documents will make you more believable to a jury than a witness who simply denies that the act or comment ever occurred or states that he or she “doesn’t recall.”

If you believe you are the subject of employment discrimination, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.

By Charles G. Douglas – New Hampshire Employment Law Attorney

With the changing demographic nature of our nation’s population, it was inevitable that at some point a white employee would be able to claim harassment because of her race. In a case earlier in September this year the United States Equal Employment Opportunity Commission announced a settlement by a former assistant prosecuting attorney in Hawaii who claimed she was discriminated against because she was white.

The prosecutor, Ms. Weigel, had worked on the island of Kauai in an office where her supervisor continually made disparaging comments that Weigel needed to “assimilate into the local culture.” She was told to dump her white boyfriend in favor of a local man.

The supervisor would talk about how staff who were white had to stop acting the “haole” way and act more like the local Hawaiians. The workplace harassment rose to such a level that the tension between Ms. Weigel and her boyfriend caused them to break up and she ended up moving back to the mainland.

The County agreed to compensate her $120,000 and to establish policies and training to make sure that whites would not be subjected to harassment.

The discrimination laws cut in both directions and it is obvious that as workforce populations change, racial discrimination victims may change with it. We represent employees of all types who are discriminated against in the workplace. If you feel you have been discriminated against, please contact one of our employment attorneys at 1-800-240-1988 or complete our online contact form.

The Americans With Disabilities Act (“ADA”) protects employees from being fired, demoted, or denied promotion based on physical or mental disability. Questions about ADA protections often arise when an employer uses physical or mental tests or evaluations to make hiring or promotion decisions.

The basic rule is that employers may use medical tests or exams when the physical or mental characteristic being tested is related to the job to be performed and is a business necessity. For example, fire fighters typically have to pass periodic physical tests to ensure that they are capable of performing the physical work required for their job. A fire fighter who is unable to carry hoses, breathing apparatus, and other equipment is unable to perform the main function of the job. That kind of physical test is permissible.

What is not allowed, however, is for employers to test their employees for characteristics that are not directly related to the job. For example, it is completely irrelevant if a telephone operator is unable to run a ten-minute mile. Testing a physical limitation when the job does not require physical skills violates the ADA.

A closer call can arise when employers use mental evaluations to establish personality traits. These tests are becoming more and more common during the hiring phase and even when employers consider candidates for promotion. Psychological tests that measure personality traits, such as honesty, preferences, and habits are permitted. However, psychological tests that are designed to identify a mental disorder or impairment are medical examinations and are prohibited by the ADA.

Employers may have many reasons to want to know about an employees medical or psychological condition. Some of these are valid and others violate the ADA. Determining whether a particular test is allowed under the law requires a complicated balancing of factors. If you have questions about physical or mental tests or examinations at work, you should consult with an experienced employment lawyer.

If you are having problems with an employer requiring you to take tests, please contact us at 1-800-240-1988 or fill out our online contact form to see if we can help.

Employment discrimination complaints against private sector employers reached an all-time high in the most recent fiscal year, federal regulators said this week.

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that handles these claims before they go to Court, said it received a record 99,947 charges of employment discrimination and obtained $455.6 million in relief through its administrative program and litigation in fiscal year 2011. The commission said it resolved more charges than it took in with 112,499 resolutions (7,500 more resolutions than FY 2010—an increase of 7 percent)—leaving 78,136 pending charges, a 10 percent decrease in its inventory, the first year the agency has seen a reduction since 2002. A similar increase in these types of claims has also been seen by the New Hampshire Commission for Human Rights, the New Hampshire Agency that handles most discrimination claims in New Hampshire before they go to Court, although actual numbers are not yet available.

The EEOC records show that:

- In both the private and federal sectors, 5.4 million individuals benefited from changes in employment policies or practices in their workplace during the past fiscal year.

- The EEOC obtained a record $455.6 million in relief for private sector, state, and local employees and applicants, a more than $51 million increase from the past fiscal year and continuing the upward trend of the past three fiscal years.

- The mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5 percent more than in FY 2010 (9,362), and benefits — $170,053,021– $28 million more than FY 2010.

- The EEOC filed 300 lawsuits and its litigation efforts resulted in $91 million of relief, representing the third year in a row that the relief obtained was greater than in the preceding year. Twenty-three of the lawsuits filed involved systemic allegations involving large numbers of people and an additional 67 had multiple victims (less than 20).

The total number of charges received was up slightly from last fiscal year’s record total. Once again, charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37.4 percent of all charges, closely followed by charges involving claims of race discrimination at 35,395 charges or 35.4 percent. While the numbers of charges with race and sex discrimination allegations declined from the previous year, charges with the two other most frequently-cited allegations increased:

- Disability discrimination–25,742

- Age discrimination—23,465

The agency’s enforcement of Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million compared to $76.1 million in the previous fiscal year. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.

If you think you have been discriminated against, please call our office at 1-800-240-1988 or fill out on online Contact Form.

President Obama recently announced that the United States would pull its troops out of Iraq by the end of the year. This announcement likely means that many soldiers will be returning to civilian status and seeking jobs–in many cases the jobs they held before they were deployed.

Returning soldiers and their employers need to be aware that returning soldiers hold special rights to reinstatement under a Federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under USERRA, the employer of a returning soldier must reemploy the soldier if the soldier meets certain conditions. First, the soldier must have provided the employer advance notice of his service. Second, the soldier’s absence from employment must not have exceeded five (5) years. Third, the soldier must report the intent to obtain reemployment within 90 days of the completion of the soldier’s period of service.

Employers that violate USERRA face steep penalties. The employer must pay all lost wages the returning soldier incurs as a result of the employer’s breach of its duty to reemploy the soldier, plus an additional amount equivalent to the soldier’s monetary losses as “liquidated damages” for a willful violation of the law or a reckless disregard of it. The employer must also pay the soldier’s reasonable attorney’s fees.

If you have returned from service and have been denied reemployment by your employer at the time of your deployment, you should contact an experienced employment discrimination attorney such as the attorneys at Douglas, Leonard & Garvey, P.C. to make sure your rights are protected. Call our office at 1-800-240-1988 or complete our online contact form.

You know that you are about to be fired. You suspect the firing is motivated by your supervisor’s hostility toward you as a woman. You have seen company documents that you believe prove that your company is involved in widespread gender discrimination. Should you copy the documents and take them to prove your claims, if you decide to bring a lawsuit against your employer?

The New Jersey Supreme Court recently decided a case with facts similar to these. The Court adopted a 7-part balancing test to determine whether an employee is privileged to take or to use documents belonging to the employer in order to prove her claim. According to the New Jersey court, the factors that courts should consider and evaluate include: 1.) how the employee came into possession of, or obtained access to, the documents; 2.) what the employee did with the documents; 3.) the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential; 4.) whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated; 5.) the circumstances relating to the disclosure of the document, balancing its relevance against considerations about whether its use or disclosure was unduly disruptive to the employer’s ordinary business; 6.) the strength of the employee’s reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery; and 7.) consideration of the broad remedial purposes the Legislature has advanced through laws against discrimination, as well as consideration of the effect, if any, that either protecting the document by precluding its use or permitting it to be used will have on the balance of legitimate rights of both employers and employees.

If you find yourself in this situation, facing an adverse employment action and wondering if you should copy and take company documents to prove that the company is discriminating against you, you should confer with an experienced employment lawyer before doing anything. The employment lawyers at Douglas, Leonard & Garvey, P.C. stand ready to assist you. Give us a call or fill in our contact form online.