Discrimination, Harassment, Retaliation and Workplace Injury. Advice Please.

[zaczeak]

Hello, everyone. I'm from Las Vegas Nevada seeking guidance.

Ok here's the story starting off with a little background. My boyfriend worked at a small casino in North Las Vegas as a Porter. He started the job a little over a year ago. He also moved to this country a little over a year ago. He his English is not the best but he's working on it, taking night classes and working on GED while currently looking for work. We're also homosexuals (has a lot to do with the complaint.) Also, I don't know if it matters but we're in our early twenties. He is new to the country and doesn't understand the much in the United States and tries to follow them to the T without question, which is why he let this abuse go on for so long, he didn't know any better. After the night of his Injuries, I helped him about the rights he has (He's a permanent resident)

The owner of this casino, as well as his brother, do not like homosexuals. The owner(s) harassed him by joking about his sexuality, calling him feminine and calling him into the office (closed door) telling him that his sexuality is offensive. This has been going on for months on end. About 6 months ago One of the Porters was promoted to Supervisor, this supervisor is also extremely abusive towards him verbally. All of the abuse as far as name calling, etc happens when he pulls him to the side. At the same time, he has been giving the workload of the other Porters, making him work their jobs as well. He complained countless times to the owners but they told him he has to talk to his supervisor about it which I find ridiculous.

Due to what I mentioned above, he started suffering panic attacks which he had on the job a few times and then had to call off work for. He went to the doctor as requested by the employer, the employer wanted a statement saying that he is being treated and a list of his medications. (He doesn't take medications and the doctor found no reason he needs to. The doctor attributed the panic attacks and slight depression due to his workplace and advised him to quit) The doctor understood the situation and gave him a note to return to work. After he returned to work the owner said he wanted to see the list of his meds, etc. My boyfriend told the owner if he has any medical questions to contact the doctor's office as stated in the doctor's note. The owner was angry at this.

Ok, let us fast forward a bit. Date:5-1-2016 when my boyfriend went to work a security guard requested him to remove graffiti from the parking lot, this is not in his job title nor was he ever trained for it. His supervisor was off work that day so he as another supervisor what to do. This supervisor told him to grab whatever chemicals he could find and go outside and clean up the walls. The Casino did not supply him with any gloves, facial masks, protective gear, etc.
While he was cleaning he fell ill, puked, nose bleed, passed out in the parking lot before security helped him. One of the securities who helped him filled out the injury report. The paramedics were called. They advised him to go to the hospital but he was afraid to because at that time he didn't have medical insurance, he also feared threats and disciplinary actions for doing so. They called me to come pick him up. When I got there he was sick as a dog but didn't want to go to the hospital so we waited 30 minutes before leaving. We left with the Injury Report.

He filled out the Injury Report explaining that he was not properly trained, did not seek medical attention due to fear of his supervisor who was not on duty at the time and also no medical insurance. He put so much information that he had to attach a second page. He also wrote on the form to receive a copy which I advised him to do.

The next day he felt better. He went back to work and turned in the report. The next day he was called into closed door office of the owner who yelled at him, blaming me, and mentioning (then instantly, stopped) talking about the facebook post I made about EEOC. He screamed at him saying things like "WHAT YOU'RE GOING TO SUE ME!!!!! THIS IS YOUR BOYFRIED'S FAULT!!!" He told him that wasn't the case. (trying to stop the yelling). After that he told him that if he (my boyfriend) signs the Injury report then he would fire him. So no party sign the Injury Report. The only name on the report is the security guard who wrote it out and a half signature of the supervisor who was on duty. (The main signature, who the owner should have signed was not on it, as I said if they did sign it, he would have fired him)

We went to the EEOC the next day and filed a report of Discrimination and Harassment and later on..... Retaliation.

Me personally (not him, me) got angry at the whole ordeal and posted on facebook on the company's page that we reported them to the EEOC. Mind you I had him document everything, tons of paperwork once I found out what was going on at his job months ago. Anyways the Casino reported my post to facebook (this is 5-7-2016, facebook removed my post and then reinstated it that same day after I appealed).

My boyfriend went to work on 5-8-2016 then again on 5-10-2016. Now it's been 10 days since the Injury, as soon as he gets to work the owner told him not to clock in. They gave him paperwork to get a drug test for post-accident... Mind you it's 10 days AFTER the injury took place and he worked a few days that week. My boyfriend called me and told me about it, I just told him to quit his job because it was clear retaliation.

After that, we went back to the EEOC and showed them the paperwork and the unsigned Injury Report and told them why it was not signed by both parties.

(I made sure he had all his documents and paperwork) The next day he filed for unemployment, less than 2 weeks unemployment ruled in his favor, 3 weeks total he received his first payment. Unemployment ruled in his favor due to discrimination and retaliation by the employer. Soon after the Casino requested the decision to be reversed which we have to attend the hearing tomorrow. I got him an unemployment lawyer and he couldn't make it to the hearing twice so he had it rescheduled. At the moment he's still receiving unemployment. Tomorrow we will have the hearing, so we will see how that goes.

I wish to ask, even though his lawyer thinks this is an easy case, do anyone here think he may lose tomorrow? Also besides this, after the EEOC gets around to completing their investigation (could take 1 year), should we hire another lawyer for what has happened to him?

Thank you for reading this and sorry for the long post. It's a lot more to this but this is just the summary of what happened.

 

[Dandy Don]

So sorry that your friend has had to endure such a horrific situation.

When he was asked to provide a list of medications, he should have complied by writing a statement that specificially stated that he was taking no medications, but this is a minor matter.

I have dealt with EEOC in the past, and unfortunately, in my opinion they may be more inclined to mostly accept cases where there is a demonstrated PATTERN of discrimination against more than one employee, and anyway no one wants to wait a year to get a determination.

You haven't stated whether your friend got fired or not. If he is fired, you need to realize that most states have the right to hire and fire anyone at will, for cause or almost no reason at all.

No one can tell you how the unemployment board is going to rule but hopefully it will be in your friend's favor.

In my opinion, you should not depend on the EEOC to defend your friend because it probably won't happen, but it's good that he was smart enough to realize that he needed help and to go to someone with his complaint.

Your friend needs to be talking with an attorney who specializes in employment law to find out what rights, if any, he may have now.

Hopefully your friend will find a better job where he is treated with more basic respect. No one should have to work in a hostile workplace.

 

[commentator]

All I can say, after wading through all of this, is that it is very silly of you to want somebody here to reassure you that your boyfriend is not going to lose in his unemployment hearing tomorrow.

You have an attorney who you are paying to wade through all the information, compile it into some sort of workable information, present it, speak for him in the hearing and yet you are here seeking the opinions of laymen on line, whom you know nothing about, who do not have all the facts and are not being paid to do anything to give you reassurance?

If you do have an attorney, what they should've told you is that your boyfriend doesn't have a whole lot of rights and protections and privileges under the law, you know, the kind you "helped him about his rights" about. So whether he was the target of illegal discrimination will not matter much at all in unemployment situations.

The two things, EEOC and unemployment insurance are not the same and do not cross reference each other. Your boyfriend could've been illegally discriminated against and still be disqualified for unemployment insurance.

What is going to be decided in the hearing tomorrow is whether or not the employer had a valid misconduct reason to terminate your boyfriend's employment, and that he is out of work through no fault of his own. And the employer has already lost the first decision on this issue. Though many initial decisions are overturned, as some on these boards like to point out, the likelihood of this one being overturned doesn't sound really good (in my opinion, which is all it is, of course) unless your boyfriend's employer has gotten his own unemployment lawyer, has gotten his paperwork in much better order, and can now show a lot more valid information about some valid misconduct reason they had for this termination.

I hope your unemployment lawyer has told you already, but YOU STAY THE HECK OUT OF THE HEARING ROOM AND THE VICINITY AND DO NOT TRY TO INVOLVE YOURSELF IN ANY WAY IN THIS HEARING!!!!!! That would be just about the surest way to mess it up I could possibly think of. Because the one nifty thing that goes against your friend in this whole unemployment situation is your complete head-in-the-way involvement in his employment. Your actions slashing and trashing at the employer on Facebook and all this nonsense was the worst possible and least professional thing he could possibly have had happen

Nobody, wife, boyfriend, child, or just buddy needs to be so involved in another person's work affairs. It makes them look incompetent and as if there might have been some valid reasons why their employer found their performance inadequate and did not any longer want them working there. And they have in your "at will" state, the right to terminate a person's employment at will, even if it is for the reason that they couldn't stand the person's boyfriend. That's not an EEOC violation.

When and if the EEOC decides there is a case for your friend related to EEOC, they will issue a "right to sue" letter. At this point, yes, he will definitely need another attorney, probably not an unemployment specialist, but someone who has experience handling EEOC issues. This will probably be about six months to a year from now, and your friend will long since have either found another job or exhausted unemployment benefits (provided they are not overturned tomorrow.) And they do look for patterns of prevailing discrimination instead of individual cases, so this is the area where I believe your friend's chances of getting recourse are lower than his chances of being upheld in this unemployment hearing tomorrow. But wait and see and talk to another employment attorney when and if that EEOC process happens.

 

[zaczeak]

Also just to be clear it's the Employer that's appealing. Also, the employer DID NOT terminate him, just forced him to quit as any reasonable person wouldn't put up with this. Edit to add: He picked the wrong state for this type of discrimination.

The hearing went well. I couldn't explain in detail at the time I original posted. Also, he quit, wasn't terminated. The Lawyer filed a continuance and we'll be going back soon. The ref slammed the employer 2 times for making rude comments directed at the Spanish interpreter, and yes his lawyer was there.

Also as far as the work injury... The Employer brought in a work injury report that was poorly written and slapped together. Sadly for him, we still have the original copies. The ref asked the employer why the paperwork was different, and why wasn't it signed. (neither copy was signed). Also, the copy my BF has is 2 pages, while the employer was half a page. The employer said because "it's not official" - referring to the original. The ref replied "We'll I'm going to make it official and submit it into evidence) So the ref left for a moment and made copies.

Later the ref asked if the employer knew he'd been reported for the violations, he said no. Sadly he wasn't prepared for evidence. The employer was the one that tagged my profile on facebook with the employer page and attempted to message me afterward with his personal account. The ref had a stunned look on his face.

One more thing... My BF left his phone on record while the owner of the casino was yelling at him and tossing around gay slurs, which at the time I nor he knew it was recorded. The ref also added it into evidence (which I didn't think was possible due to the consent laws out here, however, in some cases I guess it can be). Around this time the employer lawyer looked nervous and the employer looked extremely angry not taking his eyes off my BF at all.

Also about the injury report... The ref asked why it took 10 days to do a post-injury drug screen and require him to go the lab instead of doing it on the job, the employer said that he was unfit mentally and physically at the time and wanted to give him some time before testing. Then the ref asked him did he work during the 10 days.... yes, he has worked his full shifts, 6 days. (the employer was turning red at this point - It's interesting that an employer would allow an employee to work while he thinks an employee is physically and mentally unable to work).

As far as the injury goes I'll correct some things. The message I posted on facebook along with a copy of the Law went up on 5/7, he returned to work on 5/8. 2 days later when he returns to work that's when they ordered the drug screening. (retaliation?) It was interesting the longer the case went the more the ref seemed non-robotic and very interested in my BF testimony as well as the trove of evidence.

Also, the doctor report stated my boyfriend should quit his job due to the harassment/discrimination as it was affecting his health, panic attacks. He also recommends him for group sessions with others who has been abused at their workplace. At the end of the statement, the doctor recommended no further treatment.

One more thing, there was more evidence that was submitted that he was treated differently than the other Porters because of his sexuality and the Marketing manager making rude comments about his sexuality. 1 hour and 50 some minutes into the hearing our Lawyer asked for a continuance as he had an emergency to get to.

After the hearing, I can say it's pretty clear my BF will be fine. They were not expecting audio and video evidence as well as the facebook post to prove he knew about the report and I'm pleased that the ref allowed it into evidence and seem very interested in it.

Even so, my BF will be starting new employment next month, win, win. As far as suing him for this we don't want money but a tiny bit of respect would be nice, it's a good feeling to see a bully quake in a hearing.

Also, Nevada is a Right to Work state... However....

NRS 613.330 Unlawful employment practices: Discrimination on basis of race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin; interference with aid or appliance for disability; refusal to permit service animal at place of employment.

1. Except as otherwise provided in NRS 613.350, it is an unlawful employment practice for an employer:

(a) To fail or refuse to hire or to discharge any person, or otherwise to discriminate against any person with respect to the person’s compensation, terms, conditions or privileges of employment, because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin; or

(b) To limit, segregate or classify an employee in a way which would deprive or tend to deprive the employee of employment opportunities or otherwise adversely affect his or her status as an employee, because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin.

2. It is an unlawful employment practice for an employment agency to:

(a) Fail or refuse to refer for employment, or otherwise to discriminate against, any person because of the race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin of that person; or

(b) Classify or refer for employment any person on the basis of the race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin of that person.

3. It is an unlawful employment practice for a labor organization:

(a) To exclude or to expel from its membership, or otherwise to discriminate against, any person because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin;

(b) To limit, segregate or classify its membership, or to classify or fail or refuse to refer for employment any person, in any way which would deprive or tend to deprive the person of employment opportunities, or would limit the person’s employment opportunities or otherwise adversely affect the person’s status as an employee or as an applicant for employment, because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin; or

(c) To cause or attempt to cause an employer to discriminate against any person in violation of this section.

4. It is an unlawful employment practice for any employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including, without limitation, on-the-job training programs, to discriminate against any person because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

5. Except as otherwise provided in subsection 6, it is an unlawful employment practice for any employer, employment agency, labor organization or joint labor-management committee to discriminate against a person with a disability by interfering, directly or indirectly, with the use of an aid or appliance, including, without limitation, a service animal, by such a person.

6. It is an unlawful employment practice for an employer, directly or indirectly, to refuse to permit an employee with a disability to keep the employee’s service animal with him or her at all times in his or her place of employment, except that an employer may refuse to permit an employee to keep a service animal that is a miniature horse with him or her if the employer determines that it is not reasonable to comply, using the assessment factors set forth in 28 C.F.R. § 36.302

NRS 613.350 Lawful employment practices.

1. It is not an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify or refer for employment any person, for a labor organization to classify its membership or to classify or refer for employment any person, or for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any person in any such program, on the basis of his or her religion, sex, sexual orientation, gender identity or expression, age, disability or national origin in those instances where religion, sex, sexual orientation, gender identity or expression, age, physical, mental or visual condition or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. --- Does not apply to this situation.

 

[commentator]

Glad to hear that your friend's unemployment hearing went well and that your friend's attorney seems to have made a lot of good points with the agency representative. However, I think you should dial back your enthusiasm just a tad. I notice that the hearing was not completed with a favorable decision, it was postponed and continued due to the attorney having to leave. This might be a bit worrisome in that the employer could very well go home and retain his own counsel, or come up with some better evidence for the next time. It has happened that way.

In any case, what you are looking for is a favorable decision, which states that your friend is eligible for unemployment insurance according to the laws of the state, because he is out of work through no fault of his own. Hopefully he will get the hearing finished and have that favorable decision soon. Then the employer can take the issue up with the board of review, that is their right, but it usually doesn't come to much and your friend's participation is not required.

And I have to keep telling you that whatever the unemployment system looks at, comes up with, rules on this case, is going to be concerning one thing and one thing only. And that is unemployment insurance law. It is a closed situation. No information about any decision or no evidence that was presented in this agency is going to be in the least useful to you in any other sort of lawsuit concerning whether or not your friend was discriminated against. It does NOT matter what the agency representative was impressed by and it does not matter whether or not the agency rules to grant unemployment benefits.

Whether or not yours is a "right to work" state of course means nothing. It is a very common error, I make it myself sometimes! But you meant to say an "at will" state, where either the employer or the employee can terminate the work relationship at will without illegality.

Your friend needs to be sure to continue to file for weeks of benefits until the first week he has actually worked for the new job. At this time, when he looks back, and he has worked for the whole previous week, that is the first time he does not file for benefits after the Sunday through Saturday week has passed. Just because he has a new job promised to him and is supposed to start does not mean he should stop filing for unemployment, because if he is eligible, he is eligible for each week he has no work, not just till he gets a promise of a new job.

But regardless of how swimmingly the unemployment hearing seems to have gone so far, and whether or not he is approved for unemployment benefits, you can quote all the anti-discrimination law here that you want to quote, but no lawsuit can happen regarding EEOC issues until the EEOC commission decides there was or was not a violation. And what comes up, what is decided in an unemployment hearing may be an indication that your friend was discriminated against, but it cannot be picked up and used again in any further legal actions as in "Well, your honor, unemployment insurance ruled that he should be approved for benefits!" They are separate issues.