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Reporting workplace discrimination without blowing your cover

Federal, state and local laws protect employees from discrimination based on a number of protected classifications, including race, national origin, religion, sex, pregnancy, marital or parental status, age, disability, and sexual orientation. When an employee is subjected to what he or she believes to be discrimination on the job, taking steps to address the problem can be intimidating.

For one thing, employees may fear that if they report discrimination, they will put their job at risk if their employer looks unfavorably upon such reporting. The truth is that retaliation can be a problem, but it is just as illegal as discrimination. Employers can and should be held accountable for retaliating against employees who exercise their legal rights under discrimination laws. 

Engaging in “protected activity”

One important issue in seeking to hold an employer accountable for discrimination-related retaliation is that retaliation protections apply only to an employee’s “protected activity.” New York’s Human Rights Law includes within the definition of protected activity:

  • Filing formal written complaints, either within the company or with an anti-discrimination agency
  • Testifying or assisting in proceedings involving discrimination allegations
  • Opposing discrimination by making informal complaints to supervisors or management
  • Complaining that another employee has been subjected to discrimination
  • Encouraging fellow employees to report discrimination

Under federal law, protected activity includes both participation in a discrimination investigation, proceeding or hearing, and reasonable opposition to what the employees believes in good faith to be workplace discrimination.

Taking the proper steps to report discrimination

In reporting workplace discrimination, it is important for employees to act circumspectly so that they don’t step outside the bounds of their legal protections. This ordinarily means, first of all, using a company’s internal process to file discrimination complaints. This may or may not include reporting to immediate superiors. Employees should become familiar with their employer’s discrimination complaint procedure to ensure they do this correctly.

If reporting discrimination internally is not effective, the next step for an employee would be to report discrimination to the agency responsible for enforcing discrimination laws. The New York Division of Human Rights receives such complaints, as does the US Equal Employment Opportunity Commission.

The importance of documentation

Careful documentation is critical when filing a discrimination complaint. Employees who have suspicions about discrimination should gather as much evidence as possible prior to filing a complaint, and should be as specific and accurate as possible in their documentation. The more information an employee can provide in filing a complaint, the more credible the complaint will be and the greater the chance something can be done about it. Complaints which are deemed to have not been made in good faith are not protected from employer retaliation.  

Seek experienced legal advocacy, guidance

For anybody who believes they may have been subjected to workplace discrimination, it is important to work with an experienced attorney to hold the employer accountable for discriminatory behavior. Skilled legal counsel can also provide guidance about how to report workplace discrimination so that an employee doesn’t lose out on retaliation protections.

Sources:

Equal Employment Opportunity Commission, EEOC Enforcement Guidance on Retaliation and Related Issues, August 25, 2016.

NY Division of Human Rights, Guidance on Sexual Harassment for all Employers in New York State

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