If you have filed a discrimination complaint at work, it can sometimes feel like your employer is ignoring you, or isn’t taking you seriously. And it might be true. How can you know if your employer is doing enough to prevent discrimination or sexual harassment at work? What does a reasonable response to discrimination complaints look like?
In this blog post I will discuss an employer’s responsibility to investigate and correct discrimination or harassment at work. I will explain what an employee should do to bring a hostile work environment to his or her employer’s attention, and what the employer’s reasonable response to discrimination complaints might look like.
Your Employer Has a Duty to Reasonably Respond to Discrimination Complaints
Title VII of the Civil Rights Act says that discrimination and harassment are illegal if they are based on:
- Sex (or gender)
- National origin
Other federal laws prohibit discrimination based on age, pregnancy, genetic information, and other “protected traits”.
But just because something is illegal doesn’t mean it doesn’t happen. An employer can be held directly responsible for discriminatory employment decisions — like hiring, firing, pay, promotions, or shift assignments — and some conduct of managers or supervisors. However, when discrimination complaints are based on a “hostile work environment” created by coworkers or customers, it is up to the employee to show that the employer failed to reasonably respond to discrimination complaints.
What Employees Should Do to Register Discrimination Complaints
To start with, before an employer has a duty to respond, it must know the discriminatory behavior is happening. An employer can be assumed to know about hiring and firing decisions. But especially in larger companies, your HR department may not know about what happens in the office or on the factory floor. When that includes discrimination, employees should:
- Verbally object to the behavior on the spot.
- Document what happened, who did it, who saw it, and how it made you feel. Don’t keep the record on your work computer.
- Follow your office’s complaint procedure if it has one.
- Talk to your union representative if you have one and follow the union’s grievance process.
- If there is no formal procedure, send a written, dated discrimination complaint to your supervisor (or his or her supervisor if he or she is involved). Keep a copy for yourself.
In many cases, if you don’t follow your company’s complaints procedure, it can affect your employer’s responsibility to reasonably respond to discrimination complaints. If you have questions about what you need to do to register your issue, bring your employee manual to talk to an employment discrimination attorney soon after the incident so you don’t miss any deadlines.
What an Employer’s Reasonable Response to Discrimination Complaints Looks Like
A reasonable response to discrimination complaints depends on the nature of those complaints, the size of the company, what happened, and who is involved. No matter how big or small the company, during the investigation, you should expect:
- Prompt, thorough, and impartial investigation by someone other than those involved in the complaint
- Confidential interviews with the employee complaining, the harasser, and any witnesses
- Investigation of the complainant and harasser’s work history for previous incidents
- Limited disclosure of information in the complaint to avoid retaliation
- Separating the complaining employee and the harasser while the investigation is ongoing, if possible
A reasonable investigation of a discrimination complaint does take time. It could take days or even weeks for your employer to interview everyone and decide the appropriate response. Some forms of discipline may also be invisible to the complainant. However, if you haven’t heard anything after a few weeks, it is perfectly appropriate to follow up with your employer.
If your employer’s investigation does reveal that discrimination or harassment occurred, it is legally required to take immediate measures to stop the harassment and make sure it doesn’t happen again. What that response looks like will depend on what happened, and how serious the offense. A reasonable response to discrimination complaints could include:
- Adopting anti-harassment policies
- Imposing mandatory anti-discrimination training on supervisors or all employees
- Removing graffiti, posters, photos, or other offensive imagery or statements
- Correcting negative reviews, absences, or other marks against the victim of harassment or discrimination
- Adjust shifts or assignments to separate harasser and victim in a way that does not punish the victim
- Suspend or fire the harasser
If your employer’s response to your discrimination complaint isn’t reasonable, you may be able to file a complaint with the Equal Employment Opportunity Commission or in federal court. But deciding if the response was reasonable isn’t always easy. You may not have all the information, or your employer may not want to tell you how it reached its decision.
At Eisenberg & Baum, LLP, our sexual harassment attorneys know what a reasonable response to discrimination complaints looks like. We will meet with you to review your situation and your options, so you can be free of harassment at work. Contact us today to schedule a free consultation.