Bullying is Legal: A Survivor's Story by Dominic Richardson - HTML preview

VII: What Happens to the Complainant?

The complainant submitted documents to the State Department of Human Rights and various local attorneys in the hope of gaining legal representation in the matter. He essentially had two courses of action; he could either find an attorney to represent him during the communication with the State Department and possible litigation in court, or not get a lawyer and represent himself in all proceedings. During interviews with the Complainant it became apparent that he initially wanted to have “his day in court” to share the facts before a judge and jury to bring “justice” to the case. He was also interested in the matter going to court as it could potentially serve as a “paradigm” for how “survivors” of bullying and illegal discrimination can protect themselves under the law.

After days of reflecting upon the proper course of action, the Complainant decided to pursue acquiring a lawyer to represent him. However, he did not realize how challenging it were to be for him to gain meaningful representation. He went to several law offices for consultations, paying hundreds of dollars to each firm for the opportunity to discuss the matter with top attorneys. Every attorney he talked with had been willing to take the case but required retainer fees in excess of $4,000. The Complainant did not have money to pay for legal representation or any family from which to borrow funds. He had been living off small unemployment checks to pay for his living expenses and student loan payments. The reality had set in that legal representation in this matter, a full-fledge discrimination suit, would not be feasible for him.

To make matters worse, the legal clock had been ticking as the Complainant only had two years to file a lawsuit in court from the day he was wrongfully terminated to seek any sort of “justice” in the matter. The challenges of the pressing deadline became even more difficult for the Complainant as his support structure of family and friends did not assist in providing the emotional or financial support for the individual. Plagued with feelings of anxiety and depression, the Complainant would become a recluse, almost entirely withdrawn from communication with the people he had known prior to the matter.

In this state, the Complainant decided not to pursue legal representation. He did not have the financial ability to retain an attorney specializing in discrimination, and the attorney’s he had spoken with believed they could win the case in regards to acquiring lost wages and back pay for the Complainant, but not any monetary damages for discrimination.

As one of the top attorneys in the city put it, “There’s some illegal activity here. But above all else, you were bullied. And sadly, bullying isn’t against the law.” With a profound sadness and disappointment, the Complainant gave up his search for an attorney, and put his faith in the State Department to resolve the matter.

After conducting an investigation into the matter, the State Department needed to make a determination of “probable cause” or “no probable cause”. If the Department made a probable cause finding, they would make one final attempt to resolve the matter between the parties (in conciliation) or give the Complainant a right-to-sue letter for litigation. In cases where discrimination is particularly egregious and systemic, the State Department has the legal authority to bring a lawsuit against the employer (or Respondent) on the Complainant’s behalf.

After cooperating with all facets of the investigation, and waiting over a year for the State Department to conduct its investigation, the Complainant received a letter stating that the Department had made a finding of “no probable cause”, and since it had been over the two year deadline, the Department could not grant the Complainant a right-to-sue letter.

The Complainant hit rock bottom. It appeared that the pursuit of justice in the matter had been over. In shock of the State Department’s finding (or lack thereof) he continued legal research to see if there was any remaining course of action.

The Complainant discovered that in his state, personal injury cases can be filed five years after an act of negligence occurs. Even though the Complainant could not sue for damages relative to discrimination, he could acquire those for personal injury, all he would have to do is prove the employer’s negligence. He contacted the optometrist’s office and collected all the medical data on his eye, he planned to make the case that the sprayed substance at his cubicle was a result of negligence and therefore he is entitled to compensation for damages under the law.

After some free consultations with personal injury attorneys, the Complainant decided to represent himself and send a communication to the Respondent’s attorney. In a confidential document he made the case for how he has the legal authority to sue in court under personal injury statues even though the ones for discrimination were over.

Attached to the letter was an offer to settle the matter. The attorney made a counter offer of a very small sum, and the Complainant accepted it because he did not have the money to retain an attorney, and there was no way to guarantee he would win the personal injury case in court. The Complainant finally got to experience “justice” and learned that it comes in very small packages.

The settlement amount proved unsatisfactory to the Complainant. Had the State Department made a “probable cause finding” or if the Complainant could afford an attorney, there was a possibility that a judge and jury could grant compensation for damages in the 5, 6 or even 7 figures. He would receive compensation for back pay and lost wages, pain and suffering, and even an award for punitive damages (or a large sum imposed by the court to punish the employer) for blatant violations of the statues on discrimination. Since none of this were to be a reality for the Complainant, he agreed to accept the small settlement to avoid litigation for personal injury.

However the settlement came with a caveat. The Complainant had to sign a confidentiality agreement in order to receive a settlement, meaning he could face legal recourse if he were to ever identify the employer as responsible for any of the acts of discrimination. This became a hard stipulation to accept for the Complainant as he were simply trying his best to seek justice.

Although the Complainant is a survivor of illegal discriminatory acts, he can no longer disclose the facts of the case or attribute any of the allegations to the employer. Under these conditions, the Complainant has to live with a permanent mindfulness of not having the right to discuss this experience in open, factual discourse.

Therefore individuals who face illegal discrimination without legal resources often find themselves in these precise circumstances. A person who reports less intrusive forms of discrimination and face retaliation from employers could potentially find themselves in this situation as well. What makes the acceptance of confidentiality difficult for the Complainant in this matter is that objective data did not lead to a finding of “probable cause”. The Complainant provided medical documents that print specific dates and times he had visited the optometrist for injury, documents filled with direct and circumstantial evidences of discrimination, and a copy of the report made to Human Resources. The availability of these documents were not enough for the State Department to represent the Complainant in court.

The lack of a “probable cause” finding is not the only extraordinary detail in regards to the matter. This case and others like it exemplify a missing component in state and federal law: statues providing legal protection for victims of bullying. Since some discriminatory acts fall outside of the legally “protected” categories of discrimination (like age, sex and race) and are not compensable under certain statues for personal injury, then state and federal lawmakers should strive to create a legal classification for “bullying” that includes currently “unprotected” actions, like comments that mentally hurt or isolate employees, negative physical contact, humiliating patterns of behavior and other actions.

In Smith v. Prescription Plans, the Complainant had been subjected to a hostile work environment. These types of work environments are illegal if they are based on a legally “protected” category of discrimination including sex, race, age and others. The Complainant had been subjected to an ongoing hostile environment that included management and staff making untruthful comments about the Complainant’s sexuality, he also had been assaulted physically by a self-declared member of a hate organization. Yet, these pieces of direct and circumstantial evidence were not seen as sufficient for a determination of “probable cause” or legal representation by the State Department. If these actions do not objectively constitute as illegal activities under current state and federal law, then they certainly should belong under a legal classification for “bullying” that will protect workers from isolation, danger and hostility.

State and federal lawmakers can take two courses of action, they can either revise the current statues on discrimination to include instances of bullying or create a special legal classification for bullying that is separate. This will help keep workers safer and increase corporate productivity, a simple win-win solution for all parties. However, the current legality of bullying behaviors in the workplace remains one of the most damaging aspects of business culture, forcing individuals like the Complainant to never see the justice they deserve.

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