Take Legal Action if Fired for Having PTSD

If you have PTSD – whether as a result of military service or because of some other traumatic experience – your right to equal treatment in employment is protected by the Americans with Disabilities Act (ADA). Most states also have laws that may provide greater protections than federal law. To take legal action if you are fired for having PTSD, you must first file an administrative charge with the state or federal agency that enforces anti-discrimination laws. Because the process can be confusing and challenging, you probably want to hire an attorney before you begin.

Steps

Hiring an Attorney

1. Conduct your initial search. Finding an attorney – let alone several possibilities – can be difficult if you have no idea where to start. Nonprofit organizations dedicating to assisting people with disabilities may be the best place to get strong recommendations.
   • Your state or local bar association also will have a searchable directory you can use to find attorneys near you who practice employment law and represent employees who've suffered discrimination.
   • The benefit of a bar association directory is that you already know the attorneys listed are licensed in good standing. However, you still should check to make sure attorneys haven't been the subject of discipline.
   • Restrict your search to employment law attorneys who specialize or have extensive experience representing employees who have been wrongfully discharged because of a disability.
2. Narrow down your list. Ideally, you'll want to start with a list of a dozen or so employment law attorneys who specialize in representing employees who have been wrongfully terminated because of their disabilities.
   • Go to the website for each attorney or law firm to learn more about each attorney's background and experience.
   • Often you can find an attorney profile that will give you details about the attorney's educational background, as well as personal information about their interests, hobbies, and family.
   • Use the information you find to identify attorneys with whom you relate. Then do a general internet search for their name to find out more about their reputation.
   • Typically you'll be able to find client reviews that will give you a good idea of what it's like to work with that attorney and how they represent and interact with their clients.
   • Evaluate these reviews critically, and keep in mind that anonymous reviews typically have less value. You have no way of knowing who the person is who wrote the review, so you can't evaluate their motivations.
3. Schedule three or four initial consultations. Employment law attorneys typically provide a free initial consultation, so it shouldn't drain your bank account to speak to several. Three or four initial consultations should provide you enough options to make the best possible choice.
   • Make sure you leave enough time for each consultation. Even if the attorney only promises an hour for free, you should leave at least two or three hours per meeting.
   • You also want to try to schedule these consultations within a week or two. There are strict deadlines to file an administrative charge, and you don't want to end up starting too late.
   • If an attorney gives you forms to fill out or a list of information to provide before your initial consultation, make sure you get that material to them as soon as possible.
   • Keep in mind that the more information you can give an attorney before the initial consultation, the more valuable that consultation will be for you.
4. Ask each attorney lots of questions. Come prepared to each initial consultation with a detailed list of questions you want to ask covering a number of different areas. You should come away with a good understanding of each attorney's experience, strategies, and practice style.
   • Find out how many clients similar to you each attorney has represented, and what happened in those cases.
   • Different disabilities come with different issues. Finding an attorney who has previously represented clients who were wrongfully terminated for having PTSD will best understand the difficulties you face.
   • You also want to learn as much as you can about the attorney's practice strategy. Some are settlement-oriented, while others want to fight it out in court.
   • Ask the attorneys how much of the work on your case they will complete on their own, and how much will be done by paralegals or less-experienced attorneys.
   • If an attorney indicates someone else in the office will be doing much of the work on your case, find out if you can meet that person too before you make up your mind.
   • Get a good understanding of each attorney's fee arrangements, so you have a general idea of how much it's going to cost you to fight your former employer.
   • Some attorneys may be willing to represent you on a contingency fee basis, which means they'll take a percentage of any settlement or award you receive.
5. Compare and contrast the attorneys you interviewed. After your initial consultations are over, create a able you can use to compare the attorneys you met objectively to choose the one with the most experience and best practice style.
   • Making this raw, objective determination can be fairly simple. However, the best attorney on paper may not necessarily be the best one for you.
   • Don't forget to take into account how the attorney makes you feel. You want an attorney on your side who you trust to fight for you, and who you believe respects you.
   • An attorney who you find intimidating or who treats you condescendingly may not be the best attorney for you.
   • Keep in mind that if you end up in court, your former employer will dig into your life and your background. If you're not comfortable with your attorney, revealing these traumatic details can be even more difficult.
   • You need an attorney with whom you feel comfortable enough that you would not hesitate to tell them anything – even if there's something in your background that you fear might damage your case.
6. Make your final choice. Once you've decided which attorney you want to hire, don't delay to let them know. You need to get your case started as soon as possible. Make sure you sign a written retainer agreement before you allow the attorney to work on your case.
   • Your attorney should go over the retainer agreement with you and explain it thoroughly. If you have any questions, ask for clarification.
   • Pay particular attention to the fee arrangement. If there's anything with which you disagree, speak up. Despite appearances, retainer agreements are negotiable. You may be able to work out a better agreement if you ask.
   • You also may want to have a trusted friend or family member review the agreement before you sign.

Filing an Administrative Charge

1. Compare state and federal protections. You have a limited period of time to file an administrative charge, which must be done before you can file a lawsuit. Your attorney will help you analyze state and federal law to determine how to proceed.
   • PTSD is considered a disability under the ADA and most state laws. While the ADA protects you from wrongful termination, your state law may offer more protection, such as by making it easier to prove discrimination has occurred.
   • The ADA and other federal laws prohibiting discrimination in employment are enforced by the Equal Employment Opportunity Commission (EEOC), which has field offices all over the country.
   • If you are a veteran, you also may find additional protection under federal laws that prohibit discrimination against employees on the basis of their military status.
   • Your attorney will help you assess your eligibility for protection from these laws, which depends in part on the number of employees your employer has.
2. Complete the intake questionnaire. The EEOC has a form you must complete to initiate a charge with the federal agencies. State agencies typically have similar forms. This form requires you to provide detailed information about yourself, your former employer, and the discrimination that has occurred.
   • Your attorney may offer you assistance, but you should expect to fill out the questionnaire yourself.
   • Be as detailed as you possibly can when discussing your termination, including as many facts as you know.
   • Be sure to include the names of anyone involved in the decision to terminate you, and any reasons you were given for your termination. You also want to include the names of any managers or supervisors.
3. Submit your intake questionnaire. Once you've completed your questionnaire, you must submit it along with any required supporting documentation to the local field office of the appropriate agency. Typically it's best to bring your paperwork to the office in person.
   • Your attorney will help you locate the nearest field office if you're submitting a federal charge to the EEOC.
   • The agency recommends that you take your intake questionnaire to the office in person, as you typically will have the opportunity to speak to an agent right away.
   • On the other hand, if you submit your questionnaire by mailing it, the process of investigating your charge may be delayed by as much as 30 days.
4. Speak to an EEOC agent. After you've filed a charge with the EEOC, an agent will investigate your claims and speak with you regarding the discrimination you've allegedly experienced. The agent also will seek a response from your former employer.
   • Based on your questionnaire and the response from your former employer, the EEOC agent may have additional questions for you.
   • If you've already hired an attorney, be sure to let the agent know this. They will need to communicate with your attorney first before they speak to you directly.
   • If you've talked to any co-workers who are willing to speak to an agent on your behalf, you should provide the investigating agent with their names and contact information.
5. Attempt mediation with your former employer. In most cases, after the agent has completed their investigation they will recommend that you and your former employer enter mediation. Since the process is voluntary, both you and your former employer must first agree to take part.
   • Before mediation, you'll typically sit down with your attorney and talk about what you want out of the situation.
   • Depending on the circumstances surrounding your termination, you may not be looking for any money – maybe you would be happy simply to have your job back.
   • However, typically you should ask for lost wages covering the time you were unemployed, as well as attorney's fees.
   • While you can have an attorney represent you during the mediation itself, this isn't required. However, keep in mind that your former employer typically will have at least one attorney on its side.
   • If you and your former employer are able to negotiate a settlement, the EEOC will approve it and write up an agreement for both of you to sign.

Heading to Court

1. Receive a right-to-sue notice. The EEOC (or your state agency) will send you a right-to-sue letter if your issues cannot be resolved through administrative processes. Once you have the letter, you can continue your fight in the courts.
   • Going through the entire administrative process to its conclusion can take several months, if not a year.
   • You can request a right-to-sue letter as soon as 60 days after you've submitted your charge, so you can file your lawsuit without having to wait that long.
   • In other words, it isn't necessary to complete the entire administrative process and reach no settlement with your former employer before you file a lawsuit.
   • The right-to-sue letter simply confirms to the court that you have availed yourself of administrative processes as required by the law.
2. File your complaint. Your complaint is the court document that will initiate your lawsuit in either state or federal court. It sets the stage with a list of factual allegations against your employer that, if proven, constitute discrimination in violation of the law.
   • If you're suing under federal law, your lawsuit will be filed in the federal district court that has jurisdiction over the area where your former employer is located.
   • A lawsuit based on state law would typically be filed in your county court. However, if you have claims under both federal and state law, you generally must file in federal court as state courts cannot hear federal claims.
   • When your lawsuit is filed, your attorney will give you a file-stamped copy of your complaint for your records. Make sure you keep it in a safe place together with all other documents related to your case.
   • Your attorney will have your former employer served with a copy of your complaint. This provides them with legal notice that you've filed a lawsuit against them.
3. Evaluate your former employer's response. After being served with your complaint, your former employer has only a few weeks to file a written response to your complaint with the court. This response may consist of an answer as well as a motion to dismiss.
   • If your former employer does not respond to your lawsuit in any way, you may be eligible to win your lawsuit by default – but you shouldn't expect this to happen.
   • Often your employer will file a written answer denying your allegations, and also file a motion to dismiss which alleges that you've failed to state a claim.
   • To overcome this motion, you and your attorney will have to appear in court for a hearing and demonstrate that there is a question of fact to be decided at trial.
4. Participate in the discovery process. Once you've overcome any motion to dismiss, the "pleadings" stage of litigation is complete, and you move to the discovery phase. During discovery, you and your former employer exchange information.
   • The court typically will set deadlines for various stages of the discovery process. Requests for production potentially could be one of your best sources of information.
   • Through requests for production, you can get copies of all personnel files related to your employment and eventual termination, including correspondence between managers or human resources staff of your former employer.
   • Your former employer probably will want to depose you. A deposition is a live interview in which your former employer's attorney asks you questions about your claims that you must answer under oath.
   • A court reporter is present and will produce a written transcript of the deposition for future reference.
   • Your attorney will give you advice on how to respond to deposition questions, but remember that your attorney cannot answer for you during the deposition itself.
   • Your attorney may object to a question during the deposition, but you still must answer the question. The objection is merely preserved for the record.
5. Consider any settlement offers. At various points during pre-trial litigation, your former employer is likely to make multiple offers to settle. These offers will be communicated first to your attorney, who will discuss them with you.
   • Keep in mind that while your attorney may give you advice on whether you should accept a settlement offer, the final decision ultimately is yours.
   • The offers you receive may increase or decrease depending on information revealed through the discovery process.
   • For example, if you give a particularly successful deposition that makes your case look stronger, you may get a more generous settlement offer immediately following the deposition than any you've gotten before.
   • If your former employer doesn't propose a settlement that you find satisfying, you'll work with your attorney to prepare for trial. Keep in mind that pre-trial litigation and trial preparation can take up to a year or more.

References

See also

• Sue the Government for Discrimination
• Claim Age Discrimination for Apprenticeship Programs
• Help Avoid Employee Lawsuits
• Verify Rehab Treatment for an Employee
• Handle Disciplinary Actions
• Claim Weight Discrimination
• Know if You Should Sign a Covenant Not to Sue
• Defend Yourself in a Wrongful Termination Lawsuit
• File Charges With EEOC
• Defend Yourself in an Asbestos Exposure Lawsuit

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