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WORKING IT OUT
The retaliation backlash

More workers are suing, alleging firings, demotions for bias, injury complaints

By Diane E. Lewis, 03/28/99

s a software engineer for Microsystems Software Inc. in Framingham, Bill Silverstein had a pretty good job: He was paid close to $50,000 a year to sit in front of a computer and tap out code. It was nice work, until the pains began.

''The pains started in my wrists, and spread to my hands and my arms,'' recalled Silverstein, now of Austin, Texas. ''These were burning, aching pains, followed by numbness. Sometimes it got so bad that I wanted to bang my hands on a wall or a steel sign just so they'd become numb.''

Soon after a doctor diagnosed his condition as tendonitis, one of a number of medical problems caused by repetitive strain, Silverstein asked his superiors for a three-week medical leave from work for acupuncture treatment. Weeks later, he was fired.

Last year, the 36-year-old software engineer slapped his ex-employer with a lawsuit, alleging that he was given demeaning jobs, scrutinized, and eventually fired for reporting the injury and taking his leave.

The Learning Co., which recently acquired Microsystems, vigorously denies the allegations. ''What Mr. Silverstein is asserting is just one side of the story,'' said Boston lawyer Michael L. Rosen, who represents the firm. Rosen said he could not discuss the Middlesex Superior Court case further.

In alleging retaliation, Silverstein joined a growing number of people who have filed lawsuits claiming they were demoted, fired, ridiculed, or punished in other ways for filing workers' compensation claims, reporting injuries, or bringing bias or harassment complaints.

According to the Equal Employment Opportunity Commission, retaliation claims have more than doubled over the past eight years. In 1991, workers filed more than 7,900 retaliation complaints. By 1997, the number had risen to more than 18,000. Last year, the EEOC's retaliation caseload grew to 31,059. At the same time, complaints alleging unequal pay and race and age discrimination declined.

Specialists say retaliation can result in deep divisions in the workplace, pitting employer against employee and, in some cases, employee against employee.

Earlier this month, in a case that captured headlines, a group of women filed a federal lawsuit against a nightclub in midtown Manhattan alleging that they were retaliated against for bringing sexual and racial harassment charges.

Four women claimed Le Bar Bat Inc. and its parent, Die Fliedermaus LLC, passed out fliers in their neighborhoods implying that they were prostitutes, child molesters, and drug dealers. The women said the fliers were distributed after they complained of being groped, patted, and propositioned by men while working as hostesses and cocktail waitresses. ''We will be working with the EEOC on the matter, and we will litigate in court,'' said Catherine Rogers, a New York lawyer who represents the firm.

Meanwhile, Elizabeth Grossman, a supervisory trial attorney at the EEOC's New York office, described the case as ''one of the most egregious examples of retaliation I've ever seen. After they filed the charges, the defendants made up the fliers and distributed them in four of the plaintiffs' neighborhoods,'' said Grossman. ''In one case, fliers were sent to a woman's parents and also directly to her neighbors.''

Peter Susser, a partner at law firm Littler, Mendelson in Washington, D.C., believes employers could do more to protect themselves and head off tensions by keeping up with changes in state and federal laws. ''Many employers do not know what constitutes retaliation,'' he said, ''and they don't realize that terminating a person for engaging in a protected activity, or denying a promotion, or even condoning or ignoring icy treatment from coworkers could lead to a lawsuit.''

Hoping to slow what has become a legal avalanche, the EEOC has issued federal guidelines describing retaliation and how to prevent it. The booklet can be obtained by writing: EEOC Office of Communications and Legislative Affairs, 1801 L Street, N.W., Washington, D.C., 20507 or through e-mail, www.eeoc.gov.

According to the guidelines, former employees who have been fired or leave voluntarily, and workers who participate in the investigation of a harassment complaint, are all protected from retaliation under federal law. Additionally, an employee who loses a discrimination or harassment lawsuit could still prevail on a complaint of retaliation.

Workplace psychologist Bruce Cedar says the increase in legal filings has had a negative effect on the workplace. He says many managers are now hesitant to demote or give bad evaluations to problem workers for fear of being accused of retaliation.

''There have even been situations where employers have had grounds to address performance, but they were hesitant to do so fully because they feared the employee was in a position to make something more of it,'' said Cedar, a senior partner at CMG Associates in Newton, a workplace consulting firm.

With jury awards skyrocketing, employers have reason for concern. In 1998, for example, an ex-United Parcel Service manager was awarded $81 million by a jury. The worker, Linda Channon, testified she was moved from job to job after complaining about alleged gender bias. Although the award was later reduced to $465,000 because of a state cap, sympathetic juries are siding with employees.

In December 1997, for example, actress Hunter Tylo, 34, was awarded $5 million by a jury after it heard her story. She testified she was fired from her job as a vixen on ''Melrose Place'' after informing her employers of her pregnancy. Her employers argued they had a right to fire Tylo because she could no longer play a seductress, vixen, or adultress while her pregnancy showed.

For Silverstein, it has been a long process. After losing his job in late 1996, he found employment in Texas. Last week, he returned to Boston for an arbitration meeting. But despite attempts to mediate, Silverstein is hoping his case will be heard by a jury.

''I'm pretty disgruntled,'' he said. ''This is a situation where I complied with the company's request and delayed my leave, but they kept changing the date that I could take off. And, when I finally did take the time off, they fired me. Anyone treated the way I was treated would be disgruntled.''

Questions, comments, story ideas? Contact Diane E. Lewis at work@globe.com, or 617-929-2069.

This story ran on page F04 of the Boston Globe on 03/28/99.
Copyright 1999 Globe Newspaper Company.