Dr. Jillian T. Weiss

Job Discrimination Complaint Pitfalls & Traps

Filed By Dr. Jillian T. Weiss | January 28, 2013 2:00 PM | comments

Filed in: Living
Tags: employment discrimination, human resources pitfalls

You have had just about enough of this nonsense. Your work environment is positively hostile because of your sex, sexual orientation, gender, gender identity, gender expression or whatnot. You've been the subject of jokes, of harassing comments, of prank phone calls, weird things put in your desk or locker, of uncomfortable touching or even punching, threats --veiled or not so veiled -- bigstock-Different-29314310.jpgof physical harm and loss of your job. You have tried to ignore this, hoping that showing you're not rattled and taking the higher ground will make this go away.

Should you file a complaint with HR? Well, you could, but then there is what happened to Robert Jordan.

"When the news broke in October 2002 that police in Montgomery County, Maryland, had captured two black men suspected of being the snipers who had randomly shot 13 individuals, killing 10, in separate incidents over a period of weeks in Maryland, Virginia, and the District of Columbia, an IBM employee watching the news on television in one of IBM's Montgomery County offices exclaimed, 'They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them.' A fellow employee, Robert Jordan, who is black, was in the room at the time and heard the exclamation. Jordan was offended and discussed the incident with two other coworkers, who told him that the employee had made similar comments before. Jordan then reported the incident to management. A month later Jordan was fired, purportedly because he was 'disruptive,' his position 'had come to an end,' and management personnel 'don't like you and you don't like them.'" Jordan v. Alternative Resources, et al., 458 F.3d 332 (4th Cir. 2006) (expletives undeleted).

He lost his case.

"The district court dismissed the lawsuit because the employee did not complain about an actual hostile work environment. On appeal, the court affirmed. The lawsuit did not describe a workplace permeated by racism. Further, the employee could not reasonably have believed that he was complaining of a hostile work environment. The employee had worked at this location for four years without complaining of any racist or abusive incidents. The mere fact that the one coworker revealed himself as racist did not support an objectively reasonable conclusion that the workplace was racist. The isolated racial slur, while inappropriate, was not the sort of severe or pervasive conduct that created a hostile work environment."

And so, because he complained, he got fired because they "don't like you" and that was okay, so far as the court was concerned? Of course they didn't like him. Who likes people pointing out their problems? I point out that there was not just one judge who made this determination, but several in the course of a lengthy appeal. Of course, it's the Fourth Federal Circuit, which consists of Maryland, Virginia, West Virginia, and North and South Carolina. The Ninth Circuit wouldn't tolerate that.

So how do you go about constructing a complaint that is more likely to help keep your job and avoid them messing with you by demotion, undesirable work assignments or termination?

I note that the following is not intended to be legal advice. See the bottom for my disclaimer.

Also, please note that the following assumes a worst-case scenario. Since I spend my days surrounded by the worst-case scenarios, that's not surprising. But a lot of work places these days are quite enlightened, and the sun is always shining in HR. They may get right on it and get your back. I hope so. This is for those other workplaces.

Find Out The Law

First thing is to make sure that there is actually a law protecting you. There is no explicit protection for sexual orientation or gender identity in the federal statutes. The EEOC has said, as have several federal courts around the country, that discrimination based on gender identity or expression is covered by the federal Civil Rights Act. That will probably go to the Supreme Court at some point in the near future, so it may not be a forever thing.

Gender expression may cover people who are harassed, demoted or terminated because of the perception that do not act like a stereotypical man or woman, whether or not they are gay or transgender.

Some federal courts have held that discrimination based on sexual orientation is prohibited by the U.S. Equal Protection clause, but that is only where your employer is a governmental entity. There are also federal executive orders prohibiting discrimination based on sexual orientation and gender identity or expression for federal employees.

Some states and cities also have laws prohibiting discrimination based on sexual orientation and/or gender identity or expression. Some of those laws are good, and others are toothless, and you should find out which flavor you've got before you file your internal complaint. If your state or city law is not going to back you up if things go really south, then your employer is much more free to mess with you.

As I pointed out in my last post, you should have witnesses, if possible, though that is not designed to make you popular around the office. If there are no witnesses, then HR won't take action unless the harasser is unpopular with management for other reasons.

But if you don't file, then you lose the right to bring up the incident if the harasser decides to really go after you. If it were me, and the unwitnessed incident were relatively minor in the scheme of things, but upsetting enough to me that I need to say something, I would file a very brief, very factual report of exactly what happened and write that I am only filing to make a record of the incident, and I am not asking for specific actions to be taken against the harasser.

One idea I've heard for unwitnessed statements is to write a brief and non-threatening email to the harasser and say something like "I was upset today when I heard you making comments about "faggots" and I would appreciate it if you would stop." If they don't reply within a reasonable time, but the email was sent to the correct address, then you can make the argument that they implicitly agreed that they said it. On the other hand, if they reply by saying "I never said that," you at least have a record of the incident, and you know that you have an uphill battle. Print out that email and save it. You never know when the email system will go down, and if you get fired, you're locked out of the email system.

Another idea is to speak to the harasser with a witness present, in a relatively casual manner, not confrontive at all, and to say some version of the above. If they don't deny it, you have a witness to that fact.

This could seriously backfire, because if the harasser is popular, and goes to HR and accuses you of making a false statement or accusation, or violating the email policy, or harassing them, things could go bad for you. Judging the work environment is important to deciding what to do. Misjudge, and you could be on the street with no recourse. I wouldn't take this course of action unless I was pretty sure that HR was going to back me up. But when you're dealing with unwitnessed statements, a certain amount of creativity might be called for.

What other things do you need to think about in filing a complaint with HR?

What Types of Discrimination Are Involved?

The problems occurring may involve more than one form of discrimination. For example, in some states, discrimination against a person with gender identity disorder is considered a disability discrimination. Making fun of a speech impediment may involve gender expression discrimination, sexual orientation discrimination and disability discrimination. Making fun of someone because they are "an ugly old woman who needs to get a better hair-do" may constitute age discrimination as well as gender expression or sexual orientation discrimination. Telling someone that they are going to hell because what they're doing is against the Bible may constitute religious discrimination. A statement that "people who look like you are asking for trouble" may constitute racial or ethnic discrimination.

If you don't include a particular ground for discrimination in your complaint, then the company is generally not responsible for that, unless it should have been obvious to them.

False Complaints, Recording, and Being Disruptive

One trap is that, if they decide that you made a false complaint, it could be a ground for termination or discipline. You can try to avoid that by including details, like places and times and exact words, as well as names of witnesses and physical evidence, if any.

Be careful about recording conversations. Some states call that activity illegal, while others permit it if you are a party to the conversation, and many employers have a policy making recording on the premises grounds for immediate termination. If you include in your complaint that you recorded on the premises, you had better be very, very sure that it is allowed. Otherwise, you could find yourself out the door in very short order.

Another trap is that they can call you "disruptive." Don't yell, don't start accusing people in conversation of discrimination, and don't say the snarky things that pop into your head when you're frustrated by harassing comments or actions. Get witnesses and report them.

The Sliding Scale of Complaints

There is a "sliding scale" of importance for complaints. Complaints against someone who is your direct supervisor are given more weight than against someone who is just a co-worker, or a manager who does not have supervisory responsibility. This is because the U.S. Supreme Court has held that a company is "vicariously" liable for actions of a supervisor, but for someone who is not a supervisor, then the company is only liable if they were "negligent" or careless in correcting the situation once they are notified. The question of who is a "supervisor" is a bit unclear, and is under consideration by the Supreme Court right now.

Where the company has not taken a "tangible job action" against you, meaning that you haven't been fired, demoted or given an undesirable work assignment by a hostile supervisor, and if they have a non-discrimination policy and complaint process, they're not liable unless they fail to take reasonable action once notified. That means that unless you've been done dirt, then you don't have a court case as long as they otherwise took reasonable action to correct the discrimination.

A social factor to be considered is your relative place in the pecking order. Complaints by high-level employees are less likely to be treated cavalierly. People who are easily replaceable are more likely to get jerked around, especially if they make a complaint about someone more senior. The lower down on the pecking order you are, the more careful you have to be to write a good complaint. Of course, this is putting an unduly high burden on people who are less likely to be trained in communications techniques, but there it is.

Working With Human Resources

You should also follow up with HR until your complaint is investigated and resolved. If HR hasn't met with you to get the full story, ask for a meeting with the investigator. If HR moves at a glacial pace, as often happens, I would follow up with them once a week or so, but not much more frequently, lest you be called "disruptive." Make notes of what you are told about the investigation, with dates and names.

Do not piss off the HR people, because they are the only thing between you and the street. They know that discrimination complaints have a 5% chance at the EEOC, and a 15% chance in court, and they have smart lawyers who, when their on-switches are activated, won't hesitate to come down on you like a ton of bricks. In larger organizations, HR people are often dedicated professionals who believe that diversity creates engagement and genuinely want to create an inclusive environment. In smaller organizations, where HR is sometimes delegated to a cranky CFO bean-counter type, you are a nuisance, and the sooner they can get your problems off their desk without being too obviously shady, the better.

Also, don't file anything with capital letters, bolding, italics or exclamation points. Those are taken as signs of unprofessionalism, at best, and crackpot status, at worst. Don't file complaints that are pages and pages long if there is just one short incident. Don't send long haranguing emails to HR. When you make a complaint, make it clear, concise, and as long as it needs to be to set out the relevant facts and circumstances, places, times, and witnesses. Make copies before you submit to HR, because they may not agree to send you a copy of your own complaint later, and it may get lost at some point.

Further Incidents

Once you've made a complaint, the cat is out of the bag, so if you get more comments, or words or behavior, witnessed or not, at this point I wouldn't hesitate to report them quickly. HR will either right the ship, or you are in for a long slide out of your job, so might as well bolster your case as much as possible. Again, take careful notes and include details, like time and place and witnesses and exact words. If they don't like you, and are going to mess with you, then your only defense is to be able to show that there is a severe and pervasive hostile work environment, and that prejudice caused your ultimate termination, demotion or other negative consequences.

And don't wait too long to report. A day or two to think about it and get your complaint together is okay, but a week or ten days raises questions about possible fabrication.

The Work Performance Defense

At this point, they might start making a case to get you out of there by having someone criticize your work performance or violation of company rules. If that happens, and they call you in for a negative evaluation or write-up, your only defense is to make a short, clear statement of why the evaluation or write-up is incorrect. They will ignore it, but it puts on the record specifics that contradict their criticism of you. Hopefully, you have your previous evaluations, so that you can show that the criticisms began once you complained.

They will ask you to sign the evaluation or write-up, as a way of showing that you received it, and you should. Your signature usually only means that you received it, not that you agree with it, so there's usually no harm in signing it. But I would read the paper carefully first. Make a note on the paper that you contest the facts, and request a copy. (They may or may not give you a copy.) But you should also request the right to send them a written statement showing that the evaluation or write-up is factually incorrect, or that specific others were not written up for the same offense on specific dates and times. Again, places, times, names of witnesses, any physical evidence like time cards or logs. Get it to them within a few days, and keep your own copy.

Get A Lawyer, And Maybe Another Job

And unless you're confident that HR is on your side, start looking for a lawyer. You might also want to call an organization that provides a legal helpline for the LGBT community, like Lambda Legal, National Center for Lesbian Rights, Gay and Lesbian Advocates and Defenders, the Transgender Law Center or the Transgender Legal Defense and Education Fund. They can sometimes help, or refer you to local attorneys in the field.

If you have a high-level job, it's worth paying for a consultation with a lawyer who specializes in plaintiff's-side employment discrimination litigation. There are a lot of ins and outs to know in employment law, so don't use your business attorney.

If you're counting your pennies, it's going to take a while to find someone good who can take your case on a contingency. Don't go to a lawyer who wants money for a consultation, because there are plenty of lawyers who will do it for free. It might take a lot of phone calls, though. Ask people you know who have had occasion to use lawyers if they can recommend anyone. There are also lots of blogs by employment lawyers with useful information.

I would think about looking to see if there's another job out there that's less hassle and more money. You'll probably have to get another one at some point anyway, if things have gone south. True, you might want to stay on and fight the good fight on principle. I admire that. But it can take incredible amounts of time, effort, money and emotional hassle to enforce the laws. Give it some thought.

Note: I note that the preceding is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction, after hearing all of the facts and circumstances in a particular case. The following is drawn from my generalized experience, and you should not assume that it is going to be beneficial to you in your particular situation. My intent is only to be helpful in formulating your own plan of action in a general way. (Photo credit: "Different" by Bigstock.)

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