Practical Tips for When You Suspect Discrimination

Sunday, March 14, 2004 | 0

It's bad enough when you sustain a work injury. Your entire life gets disrupted. Unable to work, the day to day tedium of recuperation drives most people just a little batty. The pain becomes monotonous, worry sets in when the monthly bills start arriving, and savings start getting low. Add to all of that stress is whether or not you'll be able to return to your job. Worse yet, is feeling like the employer has singled you out. But maybe its not just a feeling. Maybe the employer is singling you out for some reason, and perhaps that reason is your industrial injury! How do you know, and how do you prove it?

The vast majority of state workers' compensation system prohibit discrimination against a person who has sustained a work injury. And in fact most states prohibit discrimination against persons who are witnesses to work injuries. But sometimes discrimination is practiced in a subtle manner, in a way that makes you want to quit your job (constructive termination). Sometimes discrimination is just plain obvious, and you notice a distinct change in the behavior of your boss when you get back to work following an injury.

That is what happened to Morton Wong. Wong worked for Crown Appliance as a delivery driver and appliance installer. He was injured on the job, and after returning to light duty work under doctor's orders, Wong noticed a distinct change in the behavior of his immediate supervisor (who was also the owner of the business) towards him.

Prior to his injury Wong was a top-flight employee, always garnering the employer's praise. Following the injury, Wong was the subject of constant criticism, exclusion from monthly meetings, and "cold shoulder" treatment from the boss. Ultimately Wong was fired, during the busiest time of the business no less.

At trial, Wong presented enough evidence to discredit his employer's complaints, and to demonstrate that the employer illegally discriminated against him. His evidence consisted of documentation from the personnel file indicating good work performance before his injury, witnesses who said that he was a good worker and also said that there was a distinct change in the boss' attitude towards Wong after his return to work.

How to prevent discrimination? Perhaps more importantly, because you may not be able to actually prevent discriminatory behavior, is how do you prove it later in a court hearing?

As with everything litigation, documentation is the key. Document, document, document. You should be keeping copious notes from date of injury on. Note topics should include details about what people say to you, what you hear other people saying about you, how you are feeling, any noticeable behavioral changes in people, etc. Much of this won't be admissible by itself, as it is hearsay. But these notes will be invaluable to refresh your recollection of events, and will also be valuable to your attorney, should you need one, to assist in cross-examination of witnesses.

In addition, if your employer knows that you keep good, detailed notes, they are less likely to try and get rid of you or otherwise engage in some sort of discriminatory behavior - the risks are too great.

In addition to keeping notes on what people say and do, you should be getting a copy of everything that is placed into your personnel file, as it is generated. Don't wait to have a work injury to request a copy of your personnel file - you don't know what may be 'purged' prior to your request.

In Wong's case, above, his employer said that there were three customer complaints about his work performance and that is why he was terminated. She was unable to produce the complaints, so her testimony was deemed not credible. By the same token, if you have established a custom and practice to get a copy of everything that is place into you personnel file, you will have ammunition to likewise discredit such claims.

Witnesses are obviously important. Your notes concerning who said what, when, should include contact information for those witnesses. Stay in contact with them every couple of months and touch base to make sure they don't leave the area, and if they do, get follow up information. At the least, if they cannot testify, you can perhaps obtain a declaration or affidavit from them as to their version of the facts. A declaration or affidavit isn't as good evidence-wise as in court testimony because of the lack of cross-examination ability, but some evidence is better than no evidence.

Finally, do not discount the services of an attorney. There are several reasons. First, workers' compensation by itself is extremely complicated. It is not everyman's law. There are numerous loopholes, and pitfalls, that can catch the unsuspecting litigant. Second, you have enough to worry about trying to recuperate and get a job. The stress of dealing with your own claim is an unnecessary extra burden that distracts you from what you really need to do, and that is get back to work. Finally, you will want the expertise of a good trial lawyer in presenting your case to the judge. Don't discount years of experience in publicly presenting a case, conducting solid cross examination, and using various tricks of the courtroom that only an experienced attorney will know.

Crown Appliance vs. WCAB (Wong).

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