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Time to Bring in the Lawyers

Posted by Elaine Varelas  December 8, 2010 10:00 AM

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Q: I was in a consensual relationship with my supervisor. She broke it off and then started to make life at work miserable. She gave me unwarranted written reprimands and put me on part time 3rd shifts. I am a diabetic and tried to explain to her that the shift change could have a negative effect on my health. I told her I was going to complain both internally and to the proper agencies. I wrote a complaint to the owners and filed a sex/gender complaint with the state attorneys office. I also submitted a letter from my doctor requesting I be returned to my usual 2nd shift. I was shortly thereafter terminated for calling in sick. Do you think this is retaliation?

A: Your supervisor has made some serious errors in judgment by entering into a relationship with a direct report, which makes all of the actions which followed the break up suspect. Although you considered your relationship consensual, more senior management, and an employment attorney might not agree.

Companies typically have policies in place against relationships between direct reports, or between employees at different organizational levels. If it looks like these activities are condoned by management, it may communicate a message that the way to advance your career is by engaging in sexual conduct or that sexual solicitations are a prerequisite to fair treatment. David Conforto, founder of Conforto Law Group, a Boston boutique law firm concentrating in employment law and dedicated to the representation of employees explains, “This can form the basis of an implicit “quid pro quo” sexual harassment claim. Such a claim is especially an issue if your work atmosphere is such that your supervisor and other management-level employees regularly solicit sexual favors from subordinate employees and offer job opportunities to those who comply, even if those employees willingly consented to the sexual requests. It would be particularly helpful to know whether your supervisor has since become involved with or expressed a noticeable interest in another subordinate, and bestowed preferential treatment on that particular person. Such conduct would bolster a potential claim for “quid pro quo” sexual harassment.”

I hope the owners of the company have responded to your complaint. They would be wise to take the issue seriously and conduct an internal investigation, even now. There are practices they would need to follow to prevent their own corporate liability, and if they have not responded, the state will.

Attorney Conforto also explains, “The fact that you suffer from diabetes likely qualifies you as “disabled” under the Americans with Disabilities Act. In order to be considered disabled, you must be “substantially limited” in a “major life activity.” Among other changes, the Amendments broadened the definition of major life activity to include major bodily functions related to, for instance, the endocrine system and the production of insulin – which is a function that is severely impaired or non-existent in those, like yourself, who suffer from diabetes. Also, the fact you suffer from diabetes likely qualifies you as “handicapped” under the Massachusetts Fair Employment Practices Act, which has long granted broader protection to employees with severe or potentially life-threatening medical conditions, like diabetes.”

State and federal law allow you the right to request and receive reasonable accommodations that will allow you to perform your job if you are considered disabled or handicapped. Conforto goes on, “In your case, the reasonable accommodation in question was a return to your usual shift. The employer was required to grant you this accommodation if it did not pose an undue hardship. Your employer also had a duty to participate in what is called the “interactive process,” which is an open dialogue used to identify the precise limitations of your disability and potential reasonable accommodations that could help you overcome those limitations, even beyond a transfer back to your usual shift.”

It seems these did not occur, and you may have potential claims for handicap discrimination in the form of failure to accommodate under both state and federal law.

Submitting medical documentation substantiating your need to return to your usual shift is considered a protected activity and being terminated right after that may suggest retaliation. A lawyer would be most capable of providing the detailed information you need. Claims for sexual harassment, handicap discrimination, and retaliation must be filed within 300 days of the adverse action with either the Massachusetts Commission Against Discrimination or the Equal Employment Opportunity Commission.

This blog is not written or edited by or the Boston Globe.
The author is solely responsible for the content.

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