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My 23 year old son working for a high tech company in boston…

Greetings, my 23 year...

Greetings, my 23 year old son working for a high tech company in boston (inside sales) in the state of mass and his boss has been nasty (foul language, playing favorites and much more - classified my son as an athlete that needs nuturing) and he got a 76 on a test after training (passing grade was 80) and he was the guinea pig for this first test and I have seen the test itself and it's a mess (confusing). He has only been there for few months. Other sales groups don't have this negative chemistry in their group. Other employees in his group (Older 27+) are also nervous and stressed by this manager. My son feels he will be fired and being asked to pass the test again. Fire a will in Mass? He has not done anything flagrant. Manager is using HR as a decision point as well in the process. It's her test, management, training which she deployed.

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Massachusetts

Lawyer's Assistant: Has anything been filed or reported?

Not fired..he has not filed and the company has not filed or fired...he does not have a chance to be open and honest (other than with his parents).

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No - all confidential - no names, no company name will be noted.

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Answered in 1 minute by:
3/7/2018
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,002
Experience: Licensed Texas General Practice Attorney
Verified

Thank you for using JustAnswer.

I'm sorry to hear about your sons situation. Do you think that he's being targeted based upon his race, age, religion, gender, or disability, or in retaliation for doing any protected activity (FMLA leave, filing an EEOC case, etc...)?

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Customer reply replied 1 month ago
He was classified as an athlete that had all of this coaching over the years and needs attention which his manager will not give him now or going forward. He has ADHD, Dyslexia (but not disclosed) and takes medications for management. he has been told he's the youngest - everyone else is 27-28+ years old in the group.
Customer reply replied 1 month ago
can't go to phone call just yet sorry...
Customer reply replied 1 month ago
https://www.eeoc.gov/laws/types/harassment.cfm
Customer reply replied 1 month ago
form of Harrassment?

No problem. Is there any evidence that it's because of his learning disabilities or other factors that they are doing this?

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Or is it because he's an "athlete"?

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Customer reply replied 1 month ago
Learning - he needs to take things slowly and has had accommodations in the past at H.S. and College to support. There is minimum understanding or patience with this young new employee. He is the guinea pig for the new testing and I seen the test and all types of errors / confusion (wife agrees and is a teacher). He is also NEW to the business world. They stated "Matthew we spent $30K on your" and don't want to lose you but it is up to HR. The athlete comment seems to a categorization of a man (female manager).
Customer reply replied 1 month ago
But she may categorize female athlete employees the same way.
Customer reply replied 1 month ago
Manager has 2 previous HR complaints from employees.
Customer reply replied 1 month ago
But makes her Sales numbers managing the team (view from the top).

I see. Thank you for that additional information. Please give me a few minutes while I type a response. I am still here with you, but it does take a bit of time to type a complete response.

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Customer reply replied 1 month ago
NP thank you Scott

Again, I'm sorry to hear about your situation. I'm going to be speaking as though I was speaking to him, and you can relay this information to him that way:

The first thing that you need to know is that Massachusetts is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

The problem is that discrimination / profiling / etc... is not necessarily illegal or actionable. I'm going to use "discrimination" rather than "profiling" because "profiling" itself is not illegal at all, in that there's no law that says an employer can't "profile" an employee, for any reason. Illegal discrimination is illegal, but note that I mention "illegal" discrimination. Discrimination is merely treating two similarly situated employees differently based upon some differentiating factor. That factor could be illegal (race, age, religion, gender, disability) but for it to be illegal there has to be a specific law that makes it so. Race, age, religion, gender, disability discrimination is illegal because of Title VII, the ADA, ADEA, etc... These are specific laws that make such discrimination illegal. But discrimination on other factors that are not illegal would mean, necessarily, that the discrimination is legal. "Legal" discrimination can even be logical, such as discrimination based upon education, experience, knowledge, skill, etc... or illogical (but still legal) such as based upon family / friendship, what sports team you root for, etc... or even if you smile or not. That's not based on race, age, religion, gender, or disability. Now if could be "pretext" in that the "real" reason for discrimination is based on race. But that's your burden of proof to establish the illegal discrimination. So it certainly could be discrimination that your son is encountering, but it has to be illegal discrimination.

Age discrimination if the victim is under 40 is not actually illegal. The ADEA is the law that outlaws age discrimination but only applies to individuals over 40. The Americans with Disabilities Act (ADA) prohibits discrimination based upon upon disability, but that presupposes that the employer knows or has reason to know of the disability. It's not enough to show that the employee is a slow learner or not very quick to catch on. The employer has to have a good reason to know of the actual disability, and if they were not informed of the disability, then it's very difficult, if not impossible, to show a case.

Now IF you have any evidence of illegal discrimination (again, based upon race, age, religion, gender, or disability, or in retaliation for doing any protected activity (FMLA leave, filing an EEOC case, etc...) ) then The first step in such a process would be to file a complaint with the EEOC. You can file a complaint at the EEOC field office nearest to you (you can find the list here: https://www.eeoc.gov/field/). Contact them and inquire about the process to file a complaint. Once you file the complaint, they will conduct an investigation, and if they find that it's meritorious, they'll either try to obtain a settlement from the employer or give you a "right to sue" letter. You'd then want to take that to an attorney in your area to look at your chance of a case.

Otherwise, and I really hate to say this, but the at-will employment doctrine is going to give the employer a lot of discretion on how it treats your employment.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,002
Experience: Licensed Texas General Practice Attorney
Verified
ScottyMacEsq and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 1 month ago
Excellent follow-up and details! Thank you. 5 start rating will be issued.

Thank you, You're welcome, and again, good luck to you!

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