Kaplan Law Corporation - Railroad Worker's Exposure to Solvents at Work

A RAILROAD WORKER MAY HAVE SEPARATE GROUNDS TO BRING EMPLOYMENT BASED DISCRIMINATION CLAIMS
by Kimberly A. Miller

Under certain limited circumstances, a railroad worker may bring a separate claim in court for discrimination.

Most Problems Covered by Railway Labor Act

Railroad workers are usually covered by a labor union agreement between their union and the railroad carrier. Under a law called the Railroad Labor Act (RLA), most issues in the workplace are considered "minor disputes" which must be handled by the labor union contract and the step-grievance process with the company.

Generally speaking, the Railway Labor Act ("RLA") covers such things as follows:

A. Seniority issues
B. Seniority issues
C. Rate of pay
D. Benefits
E. Work locations
F. Routine disagreements among employees
G. Breaks
H. Scheduling
I. Vacations / time off
J. Logistics of work operation

Separate Claim for Employment Based Discrimination

However, under some very narrow circumstances, a railroad worker may also have a separate right to pursue a claim for employment-based discrimination. This right arises where the issue between the railroad worker and the employer comes within a category where there is a separate legal right involved either by Federal or state law. These separate rights MUST include one of the following:

1. Discrimination based on race, religion, ethnicity or gender.

An example of discrimination based on race, religion, ethnicity or gender would include a supervisor refusing to allow railroad workers of a particular race to use certain equipment, or to learn certain skills necessary for promotion. If the company hires or promotes one category of workers instead of another, then it is possible that discrimination is involved. It could also include a supervisor singling out an individual based on gender or gender-related issues for unfair treatment, harsher discipline, or denial of certain opportunities for advancement.

However, the mere fact that a supervisor or a foreman has a personality dispute with the subordinate or a co-worker does not necessarily mean that there is "illegal discrimination." It must be based on one of the above categories and usually requires an ongoing pattern of behavior by the company.

Joe Railroader contacts his union rep and his designated railroad counsel and believes he has three years from date his orthopaedist made the note to file his FELA claim. Does he?

2. Discrimination based on physical illness or condition.

Both Federal and the state of California require employers to make reasonable accommodations to employees that have injuries, illnesses or conditions. Therefore, if an employee has an illness or condition that can be accommodated (e.g., has difficulty with night vision, has a foot or ankle problem which prohibits walking across long distances, must take more than the usual number of bathroom breaks, etc.) then under many circumstances the employer is required by law to accommodate such physical restrictions.

Again, this is not a broad-based requirement that employers accommodate all physical injuries or conditions. If an individual has a physical disability or complaint that precludes the individual from safely working in the environment, then the employer is not required to make an all-out accommodation.

3. Discrimination based on age.

Again, employers may not discriminate based on age. The mere fact that an individual is an older worker (and therefore may be entitled to earn more money, more benefits, etc.) does not permit an employer to summarily remove the older worker from the work force, demote the older worker, or in any way treat the older worker in a discriminatory fashion.

Generally speaking, the cases regarding age discrimination involve those workers that are over the age of 40.

4. Discrimination based on pregnancy or marital status.

An employer cannot single out a pregnant woman for any special treatment. Also, an employer may not discriminate against someone due to the fact that they are married, divorced or single.

5. Discrimination based on an employee's attempt to invoke or use the Family Medical Leave Act or other similar state statute.

6. Discrimination based on employer's retaliation against employee for bringing a prohibited act or conduct to the attention of the employer.

An employee may attempt to bring a prohibited act to the attention of the employer. For example, if an employee believes that an employer is systematically discriminating against persons of a certain race, the employee may make a complaint to either the employer, or a federal or state agency. If the employee could then show that the employer embarked on a pattern of discrimination against the employee due to the fact that the employee brought this prohibited act to the attention of either the employer itself or to outside entities, then the employee could also bring a claim for discrimination.

In addition, even if an employee brings an internal issue to the attention of the employer (e.g., persistent violation of a safety order by a foreman or supervisor), and if the employee then believes that thereafter the railroad carrier or its supervisors discriminated against him or her for this attempt to rectify the safety problem, the employee may have a discrimination claim.

The above are a few examples of how an employee could have an alleged discrimination claim. If you believe that you may be the subject of prohibited employment discrimination, then please contact us to discuss the individual facts surrounding your potential claim. All communications regarding your inquiry will, as always, remain confidential.

Kimberly A. Miller
KAPLAN LAW CORPORATION
Union Approved F.E.L.A. Attorneys

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