Discrimination on the Job

The purpose of this article is to provide the male nurse with a working knowledge of his rights in the workplace. This information is abbreviated and does not replace the advice of an attorney. For more specific guidance as to how to proceed if you believe you have been discriminated against please contact an attorney in your area. For more information contact your local bar association.

What if I believe I have been discriminated against?
Most importantly, the first thing to do if you feel that you’re being discriminated against on the job is to take the matter to your employer. This is important because it may not know about the occurrence of discrimination within the organization, or the actions or attitudes of a particular supervisor. If, once informed, your employer takes no action to resolve the problem, you should file a claim with the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the equal employment laws described above. It is illegal for an employer to fire you for bringing a complaint to the EEOC. If it does, you can sue for damages, including reinstatement to your job if you want it and lost pay. It is imperative that documentation of any conversations and copies of any written communication be kept. A timeline of events is also crucial prior to contacting the relevant governmental agencies.

Filing a Claim of Discrimination
To file a claim with the EEOC, locate the office nearest you in the federal government section of your telephone directory, contact the EEOC headquarters in Washington (800-669-4000), or call your city hall and ask whether your community has an equal opportunity office that represents the federal EEOC. You must file your complaint within 180 days of the most recent act of discrimination. As a general rule your state should have an office in a local or regional setting that will guide you as to how to proceed with filing a complaint.

Again, the emphasis on leaving a “paper trail” of documentation cannot be emphasized enough. Be prepared with evidence, including any relevant documents such as performance evaluations and records of incidents that took place. Any time you believe you’ve been subject to discrimination, it’s wise to note names of participants, dates, details of the incident and names of any witnesses. In a hospital setting it is important to keep your own log of events. In many instances you must ask for a copy of a written reprimand or other documentation such as a variance report. Realistically, you may encounter difficulty in obtaining these documents; however diligence in obtaining and retaining this documentation is essential.

If after investigation the EEOC finds reasonable cause to believe there has been discrimination, it will contact your employer and first attempt conciliation. It may ask your company to hire, rehire or promote you, or to award you back pay for the time since you were let go. Your employer might also be subject to other fines and penalties for its employment practices, which it may be forced to change. If conciliation fails and your case is approved for litigation, the EEOC will file a lawsuit on your behalf in federal district court. In the real world, by this point, the job may become intolerable or obtaining a lawyer has become a necessity. The investigation by the EEOC may be an avenue of discovery of information for you and your attorney if you are contemplating a civil action against your institution. It is important to note that legal action should be your last resort to resolve this issue, however, oftentimes it may be necessary in order to obtain relief and maintain your license, preserve your professional reputation and to vindicate and legitimize your claim.

Your State’s Role
Many states also have their own laws concerning discrimination in the workplace. If your state has an employment discrimination agency or a human rights commission, you may file a claim there. (Ask the nearest EEOC office whether your city or state has such an agency, or look in the blue pages of your telephone directory under state government.) If your state does have such an agency, you will probably have up to 300 days from the date of the discriminatory action to file a charge.

Most states have a work share agreement with the EEOC. In other words, if you file a charge with the state agency, your complaint is also lodged with the EEOC. And if you lodge a complaint with the EEOC and there is a state agency that can handle your case, the EEOC will turn it over to them.

Your Right to Sue
In theory, once you file your claim with the EEOC, the agency will first try to work out a settlement with your employer, and if that fails, it may file a lawsuit against the employer. In practice, because the agency doesn’t have sufficient staff, it may take months or even years to respond to your complaint, much less bring suit. Only about 1% of the cases filed with the EEOC are taken to court.

So, as mentioned above, you may end up hiring a lawyer and pursuing the matter yourself. If the EEOC doesn’t act on your complaint within 180 days, you can ask for a right-to-sue letter, authorizing you to sue your employer in federal court.

If you decide to request a right-to-sue letter, be sure you to have hired an attorney by this point to take your case. A crucial point: You must file a lawsuit within 90 days of receiving the letter. If you win your case, you will probably be granted attorney fees and back pay if you were fired. However, the time and effort may add up to years—and great deal of money—to win your case. As male nurses we all know that we are frequently held under greater scrutiny. The male nurse in this situation may be labeled a troublemaker and have difficulty finding employment elsewhere. The concept of being “blackballed” is not unheard of and prospective employees are naturally wary of litigation. The option of pursuing this claim is up to the discretion of the individual nurse. You may choose to proceed based on principle, or you may decide to put it all behind you and move on. Only you can decide which is the best strategy for you.

Laws That Protect You at Work
It is important to note that there are several laws that either individually or in combination that protect most workers from discrimination.

Title VII of the Civil Rights Act of 1964, commonly known as Title VII, prohibits employment discrimination based on race, color, religion, sex or national origin. Title VII applies to hiring, firing, promotions, raises, benefits and most other aspects of employment. However, businesses with fewer than 15 employees are not bound by Title VII or its provisions.

The Pregnancy Discrimination Act, part of Title VII, makes it illegal for an employer to refuse to hire a pregnant woman, to terminate her employment or to compel her to take maternity leave.

One section of the law that is specifically relevant to male nurses is the following: Male nurses or other healthcare professionals who believe that they have been discriminated against may also use Title VII in conjunction with several other federal laws, including the:

  • Equal Pay Act of 1963, which outlaws discrimination in wages on the basis of gender.
  • Age Discrimination in Employment Act of 1967 (ADEA), which outlaws workplace discrimination on the basis of age if the employee is 40 years of age or older. The Age Discrimination Act applies only to private employers with 20 or more employees, federal state and local governments, and employment agencies with 25 or more members. Many states have laws banning age discrimination no matter what the person’s age–check with your state department of labor to find out about the law where you live.
  • Americans With Disabilities Act, which prohibits employers from discriminating against qualified people with disabilities, including AIDS.

The purpose of this article was to provide the male nurse and other healthcare professionals with a working knowledge of the general principles of law which govern the workplace. Careful consideration must be given when deciding whether to pursue a complaint of civil action against a present or past employer. The ultimate decision of whether or not to move forward with a complaint is at the nurse’s discretion. Factors such as prospective employer bias, being ostracized because of such action and the time and effort in seeking to file a complaint or lawsuit should be carefully considered.

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