How do I stop discrimination at work without risking my job? You can’t. (Sorry) But you can take these steps to decrease your risk.
You may have a friend who sued her employer for discrimination after she was fired. Surprisingly, suing after you’re fired may be the easier way to challenge discrimination. Once you’ve already lost your job, you have nothing to lose, so to speak.
Often the more difficult situation is when you face ongoing discrimination at a job you want to keep. You may be afraid to push your complaint too far for fear of losing your job.
Mary is an associate at the Smith and O’Malley law firm. She practices a very specialized area of the law, and she loves it. However, she gets most of her work from O’Malley and he treats the male associates much better than the female associates. O’Malley makes comments to Mary and other female associates like, “I can’t give this case to a girl, you’ll get too emotional.” Mary knows enough to know this discrimination is unlawful. So she complains to HR, in writing, frequently. While HR doesn’t deny the validity of Mary’s claim, HR makes it clear that O’Malley is too powerful to chastise and it is not a good idea to get in his way. HR sympathizes with Mary, but ultimately makes it clear Mary needs to get over it. Mary can’t lose her job. She just moved her family to this small town and her kids finally settled into their new school. The Smith and O’Malley law firm is the only place in town where Mary can practice her specialty. How does she stop the discrimination without risking her job?
She can’t. Sorry.
If you are facing a similar situation, the ugly truth is that you can’t stand up in this situation without risking your job. While complaining about discrimination is usually protected by the law, employers who receive the complaints will sometimes find a “non-related” reason to terminate you. Or they might find subtle ways to make your workplace so unpleasant that you quit.
Not the news you were hoping for, I know. But if have truly had enough, there are steps you can take to mitigate the risk and stand up for yourself.
- Don’t quit. Well, at least understand that if you do quit, you may have a difficult time winning a lawsuit against your former employer. In order to seek a remedy for “wrongful termination” you must be “terminated.” Technically there is a legal theory called “constructive discharge” which means the workplace was so unbearable that you might as well have been fired, even though you were not technically fired. Be forewarned that “constructive discharge” is tricky and difficult to prove.
- Review written complaints. Go back over every written complaint you have made to a supervisor or HR person. Think of “written” broadly to include emails, Facebook message, text messages, scraps of paper, and voicemails. Look at the complaints objectively to see if you were absolutely clear about what happened, who was involved, and how it made you feel. Often, employees feel nervous complaining about superiors, so they hedge their complaints or excuse the complaint away. Be on the lookout for this behavior in your own complaints. Check to make sure you were straightforward. If you have any doubt, make another internal complaint that is crystal clear about what is happening and that you want it to stop.
- Request a copy of your personnel file. Viewing your personnel file allows you to see any recorded performance or disciplinary problems. If there are specific actions you can take to improve in the areas of poor performance, do that. You don’t want your employer to have any excuse to let you go if you decide to escalate your complaints about the discrimination. If you work in Oregon or Washington, the law gives you a right to view your personnel records.
- Confer safely with co-workers: You have probably complained to co-workers already. Check in with them to see who will support you. If several co-workers see the situation differently than you, you might want to step back and evaluate if you are missing something. If you have an attorney involved, your attorney might want to talk with your co-workers off line to get their points of view.
- Continue to document instances of discrimination. Keep track of each instance of discrimination in writing. Include details like date, time, location, who was present, exactly what was said, and any external details that lend credibility to your account. For example, “…In the company lunch room at 12:30pm on March 29th O’Malley said ‘you’ll probably cry when your team loses.’ Jane, Scott, Henry, and Phil and I were all in the lunchroom watching UNLV play Duke in basketball during our lunch break.” Also, when creating new documents, I always encourage my clients to write “Prepared in anticipation of litigation” at the top of each page. This simple title helps keep that document out of the hands of your employer in the event of a lawsuit.
- Write a final internal letter to the person(s) with the most authority. When you are ready, you or your attorney should write an official letter demanding that the discrimination stop. In this letter, it is important to emphasize that you are committed to your job and that you want a solution, not a lawsuit. It might not be realistic to expect that your employer will fire the offender, so be prepared to offer practical solutions. In the example at the top, Mary could suggest that O’Malley be directed to divvy out his assignments in writing following a system that ensures equal treatment. The practical solution for you will depend on your situation. Be realistic. Expecting your employer to fire the offender if the person is a powerful superior, is not realistic.
- Last resort, make an external complaint. If your efforts above are well documented, and the discrimination does not stop, it is time to decide if you want to file an external complaint. This doesn’t necessarily mean filing a lawsuit. The Equal Employment Opportunity Commission is a federal agency designed to receive employment complaints. Most states have a state level agency that accepts EEOC type complaints. In Oregon, the state agency is the Bureau of Labor and Industries. In Washington the agency is the Washington State Human Rights Commission. If you work outside of Oregon or Washington, go here to find the closest EEOC field office.
In short, you cannot rock the boat without risking that the Captain might throw you overboard. You must decide for yourself if the situation is bad enough that you are willing to risk your job to make it stop.
If you are in Oregon or Washington and need legal representation, request a free case assessment.
This question was originally posed by a client and asked on the Oregon Trial Lawyers Association ListServ. Acknowledgements to the following for their responses that helped my client and provided some of the information in this blog post.
- Michael Dale at the Northwest Workers Justice Project
- Gene Mechanic at Mechanic law
- Paul Bovarnick at RSB Law
- Cindy Danforth cindydanforthlaw.com
- Christina Stephenson Stephenson Law, LLC stephensonlawpdx.com
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