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For an employee of a small firm, the road can be rough

April 15, 2002|BY BOB MAGINNIS

She's a middle-aged woman who worked in a Hagerstown office for about two

years. She says her boss called her and the other employees "stupid,"

and being the kind of person she is, she really didn't make a fuss about

it. She needed the job.

Then she and her husband got sick and she took off two vacation days.

She tried to rest and recuperate, but she just couldn't shake the

ailment, so she called in sick on her doctor's advice.

Her boss replaced her, she said, saying that she hadn't come back

after her vacation days and claiming that she hadn't called in. But she had

called, she said, and was replaced anyway.

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It's a big deal, she said, because she's the spouse who had the health

insurance and nobody's hiring like they did before the current economic

downturn. She's got a decade of experience in her field, but says she's

thinking about leaving it because she's gotten so disillusioned.

I'm not using this woman's name because I can't really prove what

happened. But what I can tell readers is this: Even if she had been the

victim of age discrimination, she has limited recourse under Maryland

law, because the Maryland Human Relations Commission has no jurisdiction

over firms with 15 or fewer employees.

As a result, the only remedy for workers who feel they've been unfairly

discriminated against because of their age, race or beliefs is to hire a

private attorney.

That's not cheap, according to Catherine Skaggs, a senior investigator

for the MHRC.

"They're not human-service providers, they're attorneys whose job is to

see that the law is carried out. And it takes an enormous amount of

preparation for such cases," she said.

Skaggs, who covers cases in Frederick, Allegany, Washington and Garrett

counties, said that she gets at a call at least once a day from someone

complaining about something that happened in a small firm.

When she tells them about the 15-employee rule, Skaggs says "People say

to us, 'What difference should it make? I've been violated.' "

But the law is the law, and although some Maryland counties, including

Prince George's, Montgomery and Howard, have their own commissions and

laws that allow investigators there to probe smaller firms, Washington

County does not.

Legislation to change that statewide was introduced several years ago,

according to Glendora Hughes, MHRC's chief counsel, but it went nowhere.

I'm not surprised. In the absence of some horrendous, well-publicized

case, it's something the average state lawmaker just wouldn't take on,

given the opposition sure to come from small employers.

A lot of the complaints that come to Skaggs from small offices are not

really discrimination, at least not the way most people understand it.

"Often it comes down to personalities, office politics. Those kinds of

things go on in everybody's office every day," she said, but added that

these are not the bulk of the cases.

"Although in the past few years we have seen an increase in the age

claims, I think race (discrimination) is still the number one category,"

she said.

Pressed for some anecdotes about typical cases, Skaggs wouldn't provide

any. To do so, she said, even without using names would subject her to

prosecution and fines under state law.

She did say that in such cases, "the burden of proof is extensive,

depending on what kind of a claim it is."

Sexual harassment, for example, usually requires that some third party

witness the objectionable behavior, she said. In age discrimination

cases, employment records often tell the story. It's difficult for

someone in their late 50s to claim age discrimination if the person who

was actually hired is 62.

Even though Maryland is what's called an "at will" state, where

employees without contracts can be terminated at the will of the

employer, Skaggs says there is a catch. Employers cannot choose to

excercise their will to terminate if doing so would discriminate against

people because of race, religion or disability.

Skaggs emphasized that the 15-employee rule doesn't prevent someone who

feels they have a case from going forward with it. They just have to

hire the lawyer and proceed on their own.

Doesn't sound like much of a happy ending, does it? The woman whose

story began this column has gotten unemployment, but she's still seeking

work.

The law will probably be changed eventually, but too late to help her.

But if and when that happens, the advice Skaggs offers to larger

employers will make sense for the small shops as well:

"Your best defense (against complaints) is to hire the most qualilied

person, treat them all fairly and administer the rules equally."

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