Were my neice's rights violated?

[Ohio Dem]

She was fired from her job yesterday.

A little background: My neice worked for Rax Restaurants for a little over 6 years. In this time, she was never written up for anything. A couple of times, on her evaluations, her boss noted that she sometimes has an "attitude." Nevertheless, she moved up the ranks and was a manager.

Then she got pregnant. A week later, she was fired for her "attitude."

I think they fired her to avoid paying her partial disability when she had her baby.

What is the best thing to do, or do you think there is nothing to this?

[ayeshahaqqiqa]

1. Protest it

ask for examples of 'attitude' in writing and for names of witnesses. Bet they don't have any.

[Ohio Dem]

2. The day before, she was commenting to a coworker

that she didn't get as many hours as the people who are "under" her, and thought it was bullshit. That's the reason they give for firing her.

[Roon]

3. I don't know about your state law

but here in Colorado they have some law called "right to work" or whatever. What it means is you can be fired at anytime and they don't have to give a reason.

[Ohio Dem]

6. They can fire a woman for getting pregnant?

I don't think so. But maybe you're right.

Or are you saying they can fire her for nothing, even though it's because she's pregnant? I didn't think they could get away with shit like that anymore.

[thecrow]

56. Maybe being pregnant

means you have the wrong attitude?
You need to protest this, and LOUDLY!

[nothingshocksmeanymore]

9. Nope..pregnancy falls under EEOC

[lastliberalintexas]

26. Good God almighty

For only the 1000th correction on this site- Right to work pertains to union shops and whether an employee is forced to join the union to work for that company. What you are talking about is AT WILL EMPLOYMENT.

At will employment means that either party can terminate the employment relationship for any LEGAL reason. Pregnancy/gender discrimination is prohibited by Title VII of the Civil Rights Act and by most equivalent state statutes.


To original poster- Your niece should consult an attorney in her area. Most *reputable* plaintiffs' attorneys will provide a free initial consultation to hear the facts of her claim to see if she has a case. She needs to speak to an attorney who actually practices EMPLOYMENT LAW, as it is a fairly specialized area of the law. And she needs to do it soon, since employment litigation is subject to much tighter limitations periods than other types of litigation.

Contact the local county bar association for a free referral to an attorney who practices employment litigation if you do not know of one otherwise.

Also, in the meantime she needs to apply for UNEMPLOYMENT BENEFITS. Most states require an employee to commit workplace misconduct before they can be denied benefits, and "attitude" typically would not qualify for misconduct.

Good luck to your niece.

[nothingshocksmeanymore]

27. I was gonna drop this in your in box since I know you do federal :)

[lastliberalintexas]

31. Hey Teena

:hi: We're going to edjumacate them on employment laws yet!

[nothingshocksmeanymore]

34. *best Frances Domand*

you betcha :D

Maybe once people start realizing the importance of these rights....maybe they'll STFU about tort reform....

[Ohio Dem]

51. As to applying for unemployment bens,

done. According to my neice, she's getting them. Or will get them, anyway. That means her firing wasn't for cause, right?

edited for lack of typing skills.

[medeak]

66. yes

am employer of 70 employees. We have same law here..we call it a "lay off" and employee is eligible for unemployment benefits.

[Th1onein]

54. Good advice.

eom

[thecrow]

58. My ex got fired from Chili's for being a diabetic..

He got one week's pay and the boot after he had just been in a car accident due to diabetic blackout...
JUST AFTER A VERY POSITIVE Employee EVALUATION...
He hired an attorney
Nothing worked out as he had no money
They launched a suit against Chili's and were met with stiff opposition in that Chili's had more money to spend on court trial.
Basically, the lawyer told him to find another job, because Chili's wasn't budging.
I believe Chili's dumped him because his diabetes implied a liability for Chili's down the road.

[Bettie]

59. Iowa has those laws too...

They can fire someone for any reason at any time. No reason needed, doesn't matter what other circumstances there are.

Nice, huh.

[Irishladdie]

61. Right To Work States SUCK!!!

Damn republicans have ruined those states. The union bashing haas to stop!

[Terran]

63. "At-will" employment

Most states follow that concept. But this smacks of discrimination based on gender, which IS illegal. I would file a complaint with the EEOC.

[drdigi420]

4. call john edwards

he's the man that fights for the 'little guy' (or girl)

[htuttle]

5. They were definitely violated...but winning a lawsuit is another matter

You know what would really cinch the case? If you could find any other former employees who were fired after they became pregnant. A long shot, but would make the case right there if you could find one.

[Ohio Dem]

8. All she wants is her job back.

She's pregnant. She was counting on the money she was going to be paid by them when she took maternity leave.

[htuttle]

11. That's probably not going to happen

An EEOC suit might be the only way for her to make up the financial difference for not having a job anymore.

[nothingshocksmeanymore]

12. Tell me what happens...if she gets her job back, I have some advice

to PM you.

[Ohio Dem]

15. Cool.

I'll keep you informed.

[nothingshocksmeanymore]

7. If they fired her after she informed them then yes

You can't fire an employee for being pregnant, and they would have a hard time proving otherwise since she had no warnings..she should see an attorney who specializes in wrongful termination. She can also file a claim with EEOC

[Ohio Dem]

13. Here's how it went, from what I understand.

She got pregnant. I asked her how that happened (ha ha). She told all of her coworkers, including her boss. She complaned to a fellow employee that she was tired of getting less hours than people "under" her. She called the restaurant the next day to find out her hours. She was told her name wasn't there. She called her boss, and was told she didn't work there anymore. Because her boss was sick of her attitude.

[nothingshocksmeanymore]

16. So did her boss cut her hours AFTER she said she was pregnant

or before?

[Ohio Dem]

23. AFTER.

This happened yesterday. She told them about a week ago.

[nothingshocksmeanymore]

30. Yepp...bossy man is proverbially

FUCKED :evilgrin:

[Ohio Dem]

48. I misunderstood you.

Her hours weren't CUT, they had never been as good as those under my neice. And she didn't care for it. Thus, the "attitude" that got her fired, even though it was only hearsay to her boss (also female, I might add), but that was apparently enough.

[gratuitous]

10. Check with a lawyer

Employment laws vary from state to state, but in most states, employees serve at the pleasure of their employer. You can be fired or let go or furloughed or laid off for just about anything. Call the Ohio State Bar or the bar association for the county where she worked. Most bar associations have a lawyer referral service that allows an individual to consult with an attorney for a nominal fee.

Part of the problem will also be that Rax management is probably not stupid enough to put in writing some memo from a higher up to a subordinate that says in so many words, "Fire that one gal. She's in a family way and we don't want to have to pay for her to sit at home with her newborn."

But check with a lawyer who does employment law.

[nothingshocksmeanymore]

14. Nope this is FEDERAL..it's called gender discrimination

http://www.eeoc.gov/facts/fs-preg.html

[htuttle]

17. In fact, under FMLA, wouldn't she be due some time off

...with a guarantee of getting her old job back after she has the baby? IIRC, I think pregnancy fully qualifies for FMLA leave.

[nothingshocksmeanymore]

20. NO EEOC existed before FMLA..FMLA mostly protects FATHERS

who may need to help their wives if a complication occurs...since MEN were losing their jobs caring for their families..in America.... the only real justified reason for firing a pregnant woman is if she shits in her boss's mouth..and even then the employer needs to prove it wasn't pregnancy related...there's, in essence a bit lower threshhold of proof for a pregnant woman since the discrimination was so widespread in the past...the employer would have to have documentation of prior disciplinary warnings.

[theboss]

57. That's not how FMLA works

FMLA provides for up to 12 weeks of unpaid family leave (though the employee can maintain) benefits after a qualifying event (pregnancy, illness, etc.) You are guaranteed "A" job when you return, not the job you had previously nor the same salary.

[Ohio Dem]

18. Thanks for that.

I'm gonna print it for her. Thanks to everybody for their help.

:yourock:

[lastliberalintexas]

29. Not just federal

Most states have equivalent laws on the books which prohibit various forms of discrimination. In fact, some state laws are better than Title VII, either in the types of discrimination they prohibit, the types of damages recoverable, or both. Unfortunately, Texas is not one of those!

And depending on your county of venue, state court is *typically* a more plaintiff friendly forum than federal court should the case go that far.

:hi:

[nothingshocksmeanymore]

33. Oh I know....but I figured there's some backwards state somewhere that's

diluted those rules..and you are right...when I am commenting outside of California (where a pregnant woman can walk into work with an uzi and still keep her job) I exercise caution since I don't follow other states :)

Here in California...she'd get upwards of 50K depending on her earning capacity and the emotional distress.

[lastliberalintexas]

37. Yep, that would be Texas

Employment claims are almost impossible to prosecute nowadays. The lucky people of California and New York do not know just how fortunate they are!

[nothingshocksmeanymore]

38. But a case like this would still fly no doubt

Their workers comp is for shit in TX and California is now following suit.....the time frame for the Gropenator to get an intiative on the ballot is almost done..then we will begin challenging the shit that was passed in the middle of the night last March. We still have a progressive state constitution and Arnold forgot to rewrite that

[lastliberalintexas]

40. With the jury and the trial judge, most likely

But with most of our appellate courts, who knows anymore? They've basically been taken over by the repubs over the last decade, and have made employment claims ridiculously impossible.

Most people forget that our judges are openly political elected animals! Appointment/retention is so much better, but we won't have that for some time- if ever.

[nothingshocksmeanymore]

42. True...

but once it goes above their head, I suspect the result will still be the same and slap them down...USSC has still ruled MOSTLY favorably on gender discrimination issues.

[djg21]

39. There are actually both state and federal causes of action.

FYI:

The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Act covers employers with 15 or more employees.

If your niece is interested in pursuing this matter, she must proceed very quickly by filing a complaint with the EEOC or the parallel state agency. Initially, she has 300 days from the date of the discrimination to file a charge with the appropriate agency. The Administrative complaint, and a "right-to-sue" letter is a condition precedent to a suit under Title VII (and most analogous state claims). Here's a link that describes the procedure: http://www.eeoc.gov/charge/overview_charge_filing.html

That being said, have her get a lawyer! Many labor attorneys will take cases on contingency, if there is a likelihood of success. Under Title VII, a prevailing party may recover attorneys fees.

She may also have a claims under the Family Medical Leave Act, which, like Title VII, has requirements governing leave for pregnancy and pregnancy-related conditions. In addition, there may be a claim under Americans with Disabilities Act -- pregnancy is a disability so far as I can recall.

Again, she needs to consult with a lawyer quickly.

Finally, keep in mind that you get what you paid for and you paid nothing for this "advice."

On edit, the intial question is one of continuing her benefits, i.e., her insurance coverage, especially in light of her pregnancy. Make sure she is aware of her rights under COBRA(Consolidated Omnibus Budget and Reconciliation Act of 1985). This should be explored immediately!

[nothingshocksmeanymore]

41. Right..my point in that response was to point out that even if the state

limited her, the federal gov't didn't...and I know Ohio Dem...he's most likely not responding and on the phone with his niece helping her get all the numbers and helping her find a lawyer :D

[djg21]

50. No mistake!

Here in NY, the State Division of Human Rights(which administers NY's Human Rights Law) and the EEOC have a dual jurisdiction of sorts -- if one files a charge of discrimination with the DHR, it constitutes a contemporaneos, dual filing, and satisfies the Title VII filing requirement. My experience with employment has largely been in NY, and I cannot speak as to other states.

I can see how my language could be confusing!

[lastliberalintexas]

43. Be careful

The limitations period for filing a charge of discrimination is not always 300 days under state law, and state court may be a more favorable venue depending on the state. For example, in Texas, one must file with the TCHR within 180 days of the discriminatory event in order to later bring suit in state court.

Of course, the 300 day period applies to EEOC filings, just not necessarily the *state* agency.

[djg21]

44. Absolutely right.

That is why I specifically referred to the EEOC and a Title VII in my post. In my state, the 300 day period doesn't apply and there is a 3-year statute of limitations under the analogous state statute.

[lastliberalintexas]

46. Ok, sorry

I just thought you intended to include state law as well, with the parallel state agency line. My mistake! :-)

[nothingshocksmeanymore]

45. I am sure you and I BOTH agree that she should GET A LAWYER

message boards are only good for GENERAL legal answers..and she should get an atty that specializes according to the Ohio State Bar in employment law or wrongful termination (which is the specialization here in California).

[lastliberalintexas]

47. Absolutely!

That's why I always say "most" state laws are this, and "typically" the answer is this. I personally have no clue what Ohio law is! Just employment law in general.

And a reputable plaintiffs' attorney will talk to her for free. Or her/his paralegal as well, since they often get the information first!

[wicket]

19. Call a labor lawyer

They should be able to help her, do not let this go down without a fight!! Oh my god, this makes me so mad!!!! :grr:

[nothingshocksmeanymore]

21. That's what I do in my free time

when I'm not posting on DU :)

[wicket]

25. Awesome!

:)

[Misunderestimator]

22. Same thing happened to the wife of a friend of mine...

She was always top-ranked in her HR evaluations and received promotion after promotion, then when she became pregnant, they fire her on some lame grounds... They got a lawyer and were going to fight it, but they ended up taking the opportunity for her to start her own business, and they're much happier now.

It is DEFINITELY illegal what they did. And if she has the promotions and raises to prove that she added value to the company, then you have what you need to fight it. "Attitude" alone is not enough (I get that ALL the time, but I keep getting promoted too).

FIGHT IT!

[Hamlette]

24. she's entitled to unemployment

if the facts are as you say, she'll get it. That's a few hundred a week. Then she should contact your state EEOC and file a complaint and she should call the local bar association and have them refer her to a labor lawyer. Ask around, find a respected attorney. Have him or her decide how good the case is.

She can do the unemployment claim on her own BUT she must file for them now. She doesn't get weekly benefits for weeks before she files for unemployment (federal law).

[Baltimoreboy]

28. Fired for cause

I think limits the ability to get benefits.

[Misunderestimator]

32. Not when the cause can't be proven...

I quit a job once many years ago because my paycheck bounced two weeks in a row. When I went to collect unemployment I found out that they were saying that I was fired for cause so that they wouldn't have the unemployment insurance go up. Of course, all I had to do was show them copies of the bounced checks, so that was an easy win.

[lastliberalintexas]

35. It depends

*Most* states allow for the payment of unemployment benefits in all but the most egregious cases, termed workplace misconduct. Typically, this does not include things such as "attitude", insubordination, etc. If she wishes to seek the benefits, her best option is to apply and see what the decision is.

[Scout]

52. I received unemployment in Michigan...

after being fired for (supposedly) "lying on my performance evaluation." When I filled out the paperwork there were places you had to mark off if you were fired for theft, or drugs, or violence or anything that was actually illegal.

This was from an at-will employer in Michigan. They were not at all happy, but they did have to pay me the unemployment for 6 months.

[nothingshocksmeanymore]

36. WRONG

One has a much higher threshold proving cause when they fire a woman who they know is pregnant.

Please try to limit your posting on that which you actually know.

[Ohio Dem]

49. No, she checked.

She's eligible.

[Th1onein]

53. Sounds like discrimination. See an attorney immediately.

eom

[porphyrian]

55. I miss Rax's shakes...

Call a lawyer that Rax won't blow off easily, have the lawyer write a letter. They'll likely want to settle.

[yellowcanine]

60. From what you have related, yes her rights were violated. Whether she can

prove it in a court of law is another thing. She needs to see a lawyer who specializes in discrimination claims to see if she has a case. It shouldn't cost her anything to at least check it out. For one thing, I very much doubt that having an "attitude" is grounds for dismissal, even if it is written in several evaluations. That is not nearly specific enough and she probably should have challenged that assessment at the time - but it's too late for that. Private employers do have more leeway than government employers - but I am fairly sure you still can't fire someone for getting pregnant - unless there is some aspect of the job that endangers a pregnant woman or the baby's health - or the pregnancy prevents her from doing the job. Even then, I believe the employer would have to make a good faith effort to accomodate the pregnancy before letting her go.

[philosophie_en_rose]

62. Even without a lawyer - complain.

http://www.eeoc.gov/facts/fs-preg.html

http://www.eeoc.gov/facts/howtofil.html

[Ohio Dem]

64. Thanks to all who posted here.

I'll keep you up to date.

[elehhhhna]

65. The EEOC will probably do more than a lawyer BUT

also go here: http://www.bigclassaction.com/index.html

they list pending, settled, etc. cases and much more, plus resources.

if Rax has done this before (and most restaurants & retail joints have...) you've got yourself a winner, lead plaintiff! You might even get a payout in time for baby's college tuition payment!