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What can someone do to prepare for retaliation from employer?

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CarMechanic1

Junior Member
What is the name of your state (only U.S. law)? NY

I will first apologize for this long post as well as to thank you for taking the time to read/respond to my question.

I work in concrete manufacturer plant where we create building materials such as concrete double tees that are used for parking garages, stadiums and sometimes arenas. There are a great number of employees for this company but our teams is approximately 20-25 people making these double tees. Regardless of the duration on time employed with this company and experience we all share the same job title as well as job duties/responsibilities.

With that being said we all know some employers/companies like to work their best workers especially when on a tight schedule and things need to get done. I find this completely acceptable. At this company its more of letting their best workers handle majority of the responsibilities while letting other workers pick and choice what they want to do,don't want to do and how often they want to do it. One of the job responsibilities (that I will be speaking about) requires attention to details and its one of those jobs that it's either its right or wrong. This job also needs to get done within a specific time frame or it can hold up other production task.

This task is quite difficult on the hands if this job is consistently done. Due to a medical problems I asked numerous of times to my surrounding management not to perform this duty for my whole shift. I am consistently come under fire from other my bosses and other employees for not hitting quotas, taking too long and etc. Due to my condition I can't always work on my best ability due to the pain that I endure. I am ignored and nothing is done. I don't not perform this duty if I'm out, I'm training a new hire or the schedule isn't so heavy (which isn't very often). I decided to speak to a representative in the human resources dept. for the company. I explained for medical condition and how it affects me doing my job. I go on to explain that I am more than capable of doing this job but can't do it for the duration of my shift every day and week. After having this discussion; he suggested an accommodation(the same one I been wanting) which would place me at other job duties instead of having me perform this duty my entire shift. I would have thought that he would spoken to my surrounding bosses about this and thought the change would be pretty quick since this is already done is other employees on the team. To my surprise I couldn't be more wrong. Once again I was ignored for reasons I speculate 1.) my request doesn't matter because I'm Asian and a female (I'm the only Asian/female in my dept.), 2.) they just don't care and find it best convenient to accommodate me when they feel the need and/or 3.) the companies outlook, deadline on schedules and bottom line is more important. How can you ignore and deny a request which is already given to other employees within the company without them having to ask for it.

I am forced and pressured to due this one duty because they fail to hire people capable of doing the job and they fail to train people to do the job. But I am also spoken to for the way I do the job while others doesn't even do the job.

After 7 months of waiting; I've had enough of this company and decided to stop doing the duty all together and perform other duties. My health is far more important than the company's bottom line. I know I will come under fire for my decision after they realize things aren't being done. I believe 7 months of waiting is more than reasonable under my part. Especially for an accommodation that can be done easily since this is already offered. I am more than prepared to be retaliated against(such as moved to another dept.) or fired for whatever reason they have. Being an "at-will" employee; they don't even have to give me a reason for my termination. The termination reason doesn't even have to do true. The termination or disciplinary action can't be for a prohibited reason under federal or state law.

This might be an essential function/duty of the building these concrete products but my outlook is that it's pretty hard to argue that when they allow employees not to do it. Undue hardship is another argument but hard to argue when they already allow this same accommodation to employees without requesting it. The instructions in the company's handbook for requesting accommodation is to speak with a representative from human resources which is what I've done after speaking to my surrounding bosses and still nothing has been done. They might try to even argue that I wasn't ignored and they didn't fail to provide the accommodation because one was never requested. That's another good argument but after ignored by other in management I made sure to record (with date and time) the conversation with the HR representative as proof since people often "forget" about what is spoken of when issues are brought to light.

I'm just trying to figure out how to prepare myself at this point. And what to do if actions are taken against me for my actions of not doing this duty anymore?
 
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OHRoadwarrior

Senior Member
You have not indicated at any time you presented medical documentation that you needed an accommodation, only that you have been called upon due to poor job performance. Trying to create a discrimination claim is not likely to be successful based on the info you gave, termination is.
 

CarMechanic1

Junior Member
Thanks for your answer. Could you kindly explain your reference of "trying to create a discrimination claim"?
 
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cbg

I'm a Northern Girl
There are no circumstances whatsoever under which an employer is obligated to completely remove an essential function of a position. That is NOT considered to be a reasonable accommodation under the ADA, and as yet you have provided no evidence to suggest that the ADA even applies.
 

CarMechanic1

Junior Member
There are no circumstances whatsoever under which an employer is obligated to completely remove an essential function of a position. That is NOT considered to be a reasonable accommodation under the ADA, and as yet you have provided no evidence to suggest that the ADA even applies.
Thanks cbg for your response. You're perfectly correct that an employer is under no obligation to remove an essential function of a position. This wouldn't be considered as a reasonable accommodation under the ADA; which you stated as well. The employee should be able to perform the essential function(s) with or without accommodation. I have a neurological disorder which is my medical condition to keep it short. I never asked for my employer to remove me from this duty entirely but only that I couldn't do this duty for the whole duration of my shift.
 
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commentator

Senior Member
You also indicate that nothing has happened yet. It may never. Just do what you do to the best of your abilities. Be cooperative, be pleasant, and do what you feel you can, as best you can. It might be that you might begin looking for another job during your off hours, just because it MIGHT be that they decide to terminate you.

But in the meantime, there's no grounds whatsoever for any kind of discrimination action based upon your handicap or your ethnic background. You just do not want to continue doing what they primarily asked you to do as part of this job. In this case, I think you should prepare yourself for the worst case scenario, which is that they terminate you for failing to perform the duties that they hired your for and asked you to do, and go out and proactively seek another job before this happens.

If you are terminated, you will file for unemployment benefits, and the primary thing they will ask is, "Were you aware that you actions might result in your firing? " and "What steps did you take to attempt to resolve the situation?" I think you are pretty much at a standstill, in that you asked HR to intervene and change your job duties, but they did not, and you are now refusing to do what they are asking you to do, because you have asked not to, and they elected not to remove this aspect of your employment. Now we see what happens.
 

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