Can I trust HR to protect my legal rights?

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(MoneyWatch) Dear Evil HR Lady,

I have a biologically-based mental illness that I got diagnosed with over a decade ago when I was at university. Since I was diagnosed, I have maintained treatment and have never missed work or been hospitalized. I maintain my condition like a champ. I am a great employee with solid skills and a great work ethic. Basically, my condition does not affect me at all, except that I have occasional doctor appointments to see specialists (psychiatrist, psychologist, lab work). I hardly ever take sick days. Nobody at work knows about this because years ago when I was younger, I confided to HR about my condition, my manager found out and I almost lost my job. They did a whole bunch of illegal stuff because they knew I was broke, and I didn't have the money or stomach to sue.

I just started a new job about three months ago. Nobody knows about my medical condition. I have a coworker who is a total bullying jerk. He started out saying sexually suggestive things to me, and I had to shut him down repeatedly before he finally stopped. His thing is "diagnosing" people with mental illness if they do things that he doesn't like or if he thinks they are bad people, or if they don't allow him to run the show. He is not a doctor or even remotely qualified to diagnose mental illnesses, especially not as gossip fodder to put people down. Each time he has told me that so-and-so is psychotic, schizophrenic, bipolar or whatever, I have consistently told him in no uncertain terms that it is totally inappropriate and that he is not qualified to make that diagnosis. He angrily retorts that all he has to do is read the criteria for the condition and he can diagnose it.

Our manager is kind of a jerk in that he's abrasive and I don't trust him, but the way a hostile environment American With Disabilities Act claim is made is by proving that the manager did nothing to stop the abuse, so it has to go up the chain of command. Obviously, I haven't told him that my coworker is creating a hostile work environment by bashing the mentally ill, because I can't prove a hostile work environment without outing myself as being mentally ill and covered by ADA. I can't claim protection under the ADA without telling HR that I have a covered condition, and if I'm making claims of a hostile work environment based on protected status they are probably going to demand my medical records. I am not going through that again. I don't trust my manager to hear that diagnosis and magically not allow it to affect my employment -- let's be real, he's going to fire me if he finds out.

Do I have to just grit my teeth and allow this dude to bash me? I can't do anything about it unless I want to be exposed, right? Other than find another job, which I am looking for nightly, what else can I do?

I don't blame you for being hesitant to explain your situation to your HR department. HR should be the most trustworthy group of people in any business, but unfortunately that isn't always true. And when your  manager has already showed himself to be a jerk, it makes it even scarier to bring up something delicate like this. 

I took your question to employment attorney Donna Ballman, author of the fantastic book "Stand Up For Yourself Without Getting Fired." She said:

You don't have to sit and be subjected to offensive comments about mental illness any more than you should have to put up with racially offensive comments. Just because you aren't black, doesn't mean you can't report race discrimination against black coworkers. If you're a man, you can report sex discrimination or sexual harassment. If you oppose discrimination or illegal harassment that is occurring in the workplace based on race, age, sex, national origin, religion or disability, you are protected against retaliation.

In other words, you can make a complaint without disclosing your condition. The Equal Employment Opportunity Commission specifically states that you are protected against retaliation if you oppose discrimination, even if you aren't being directly discriminated against. 

Ballman's direct answer to your question: "No, you don't have to just sit and take this. If you want to step up and complain, I suggest you write out a document called, 'Formal Opposition To Harassment of Employees With Mental Disabilities.'"

The title of your document (and the subject line on your email) is critical. If you just title it, "Bob is a jerk," everyone can claim they didn't realize that you were specifically complaining about discrimination and assumed you were just complaining about generalized jerk-like behavior (which is annoying, but not illegal). 

Ballman advises that you write down your coworker's offensive comments, the names of people he's directed these comments at and the specific mental disabilities he has claimed they have. Send it to HR. "Tell them that you believe this behavior is offensive to individuals with mental disabilities, and that you oppose this unlawful practice," she said.

Ballman cautions that the company may not take action to stop this guy. It also may retaliate against you. If so, "At least have some legal protection if they do. You don't need to disclose your own disability in order to be protected against retaliation for opposing disability discrimination."

And that's the key thing -- you don't have to ask for protection for yourself. You don't have to disclose your own mental illness. What this guy is doing is illegal regardless of whether any of his victims are protected by the Americans with Disabilities Act.

So document, document, document and get this written up and send to HR immediately. Send it via email and copy your home email account on the email so that you have a record of who you sent it to and when it was sent. Email is much better than handing over a hard copy because they can't lie and say that you never sent it.

Have a workplace dilemma? Send your questions to EvilHRLady@gmail.com.