While gathering evidence and documentation is necessary for your workplace discrimination case, the first step is often the hardest for most people to take: say something. If you feel you are being discriminated against for any reason, the most important thing is for you to make it officially known to your employer that you feel this way, in writing. Every company has their specific policies, whether it be filing an official report or speaking with a specific person, so if you aren’t sure consult your employee handbook or ask someone in the human resources department to find out what steps you need to take. If you don’t have an HR department and it isn’t specified in your employee handbook, just start with your immediate supervisor. Send an email, a letter, or a fax, however you choose to do it, make sure you complain in writing and make sure that you make it clear you believe you have been discriminated against due to your protected class status.
Workplace discrimination: Make it official
Now, a lot of people are probably wondering why you should let your employer know you feel this way, after all, its probably not the most comfortable conversation you can imagine. But there are many reasons why it is to your advantage to do this. The first reason is that sometimes talking about an issue can help resolve it. It’s possible your employer didn’t realize they (or another employee) were doing something that either made you feel uncomfortable or made you feel you were being treated differently than other employees. If you talk to them about it, they might be willing to address the issue and make things better without getting lawyers involved. This is certainly the easiest and quickest outcome you can hope for and could lead to you enjoying your job again and moving forward.
However, we all know this isn’t always the case so the second reason it’s important to speak up or file an official report is to create a paper trail. Once you file your complaint, any adverse action your employer takes against you after that may count as retaliation, which is illegal. According to the EEOC, “Participating in a complaint process is protected from retaliation under all circumstances.“ Whether it be termination, a demotion, discipline, or even a significant schedule change, it is illegal for them to treat you differently simply because you have raised a complaint. And if these actions do occur, they are great evidence for a discrimination and/or relation lawsuit.
One last thing to consider is that raising a complaint can also help you keep your job longer. Most HR representatives know the laws regarding retaliation, so it is less likely your boss’s boss will approve termination or other adverse employment actions against you once you raise a good-faith complaint. While termination may still be inevitable, this could help bring attention to illegal conduct and provide you and others interested in ensuring an equal opportunity workplace necessary time to gather more evidence.
How do I prove retaliation in workplace discrimination cases?
Once you file your complaint — a protected activity — your employer is not allowed to retaliate against you because of it. However, if you do something wrong, they are still allowed to address that behavior how they normally would (i.e. cutting your pay for being late). “In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:
- An individual engaged in prior protected activity
- The employer took a materially adverse action
- Retaliation caused the employer’s action.” (EEOC website)
The last one isn’t easy to prove, but it’s one more reason why you want to make your complaint official, to show a timeline of events. If you are now being punished for something that you and other employees have done in the past without consequence, that can help prove retaliation by helping to show that you are being treated differently than similarly situated others have been treated in the past.
Gathering other evidence for your case
Never forget that the best time to gather evidence on workplace discrimination is while you are still employed. If you happen to get terminated, you still have the right to obtain your employee files (See our previous blog post: You have a right to your personnel files) but that won’t include everything, just official documents like performance reviews, official discipline, or other official actions. So, in addition to filing an official complaint, remember to save anything that could be used to show how you are being treated or patterns in your employer’s behavior. One easy thing to do (so long as you do not violate any company policy) is to blind copy (BCC) your personal email address. This is a great way to have backup copies of any important emails that tend to show discriminations because typically you won’t be able to access your work email account after you are terminated. You can also just forward emails as well. And don’t just keep copies of emails that might show discrimination but also ones where your employer praises you, or ones where other employees thank you for doing something. These can help prove you were a good employee if they suddenly start giving you bad performance reviews or otherwise try to falsely claim that you were a bad employee before you started complaining about discriminations. And if your supervisor gives you cards or notes with praise, save those too. You never know what could end up helping prove your case.
Who can help you fight workplace discrimination?
If you ever feel you are being discriminated against at your job, it’s important to speak to someone as soon as possible. Very often you must file an official complaint before your employer can be made liable and there are important deadlines to filing claims with state or federal agencies. Finding the right civil rights attorney is key. The Civil Rights Litigation Group has successfully handled many workplace discrimination cases over the past 10 years and we are 100% dedicated to civil rights issues. We offer free consultations so you can find out if you have a legitimate case. Please call us at 720-515-6165.
Call 720-515-6165 for a free consultation.
Additional resources on workplace discrimination:
Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.
Discrimination, Harassment, & Mistreatment, https://cdle.colorado.gov/wage-and-hour-law/termination/discrimination-harassment-mistreatment