Employee Resources
Should I complain about discrimination?
It is challenging to gather the courage to complain about discrimination at work. Even though the law protects you from negative consequences for making a complaint about discrimination (“retaliation”), many employees are afraid of retaliation. Others are afraid of rumors and developing a negative reputation – potentially hurting their career advancement. Retaliation or reputation concerns may be particularly important for employees who are in the US on a temporary status like an H-1B visa that is tied to their job – while these employees are still protected by most employment laws, they have more at stake if something goes wrong at work.
These are valid concerns that factor into any decision about whether to make a complaint – while the law protects you from retaliation, it is not easy to show that your complaint was the reason you are having a more difficult time at work. But that should not stop you from complaining if you have thought carefully about your circumstances and you believe you are being treated unfairly based on your religion or another protected characteristic.
Before making a complaint at work, you should consider whether your complaint will be reviewed fairly by someone who is impartial and any wrongdoing will be handled promptly by your employer. In smaller workplaces, there might not be a separate Human Resources department and complaints can go directly to a manager who does not have experience investigating complaints. In smaller workplaces, you might not be able to move from your office/department and management hesitates to get rid of a long-time manager, so you could end up working with the same coworkers or managers after you complain. In larger workplaces, there are usually experienced Human Resources personnel who work on investigations (with the advice of company lawyers), but even if someone discriminated against you, they might only face a small penalty or warning. Even in larger workplaces, you may be stuck working with the same manager or coworkers after making a complaint, particularly if the investigator does not think there was discrimination.
If you do not think your workplace will carefully review and fairly investigate your complaint, you should consider making a complaint directly to the U.S. Equal Employment Opportunity Commission or speaking with a lawyer.
If you do believe your workplace has good processes in place and that complaining to them directly could help resolve your complaint, you can start with making a complaint at work.
What information or documents should I save?
If you believe you are facing discrimination, you should try to save as much information as possible.
If the discriminatory behavior includes discussions or comments, write down exactly what was said, when and where it was said, and whether anyone else was there. It is much harder to show discrimination from verbal discussions because the other person will usually deny it, and there is no “proof.” It also becomes more difficult to show this type of discrimination after a long time has passed, because others will forget what happened.
If the discrimination includes things that are written or recorded, make sure to save or print a copy of those documents. Sometimes, discriminatory remarks can be included in emails, performance reviews, voicemails, or other things that can be saved. Other times, someone contradicts themselves and places unfair expectations on you at work, and those documents can be used to show that they are treating you unfairly when their inconsistent requests are combined with discriminatory comments.
Collect or write down any other information that shows that you are being treated differently. If you know that other people in the same position or department are getting different treatment, that is also helpful. For example: there is a policy that prohibits employees from wearing jewelry at work and your coworker was allowed to wear a Cross necklace last week, but you received a write-up this week for wearing an Om pendant. You should write down and document the different treatment of the same behavior by you and your co-worker.
Who should I talk to about my complaint?
If your complaint is about a minor issue with a coworker or client, you might want to start by bringing it up to your manager. But you should always consider whether you believe that person will take your complaint seriously and act fairly – think about whether they have any personal relationships, business relationships, or other reasons they may not want to resolve your issue.
If you decide to complain to your employer, make sure you read the policy on non-discrimination and how to make a complaint. The policy will tell you who to complain to and how to make your complaint. Typically, you should make a complaint to your manager or HR contact. If you are complaining about your manager, you should go directly to HR or your manager’s manager. If your issue is with your HR contact, you should consider going to your manager, the HR contact’s manager, or a different HR contact.
How do I file a formal complaint at work?
To file a complaint at work, follow these steps:
- Read the policy: always make sure you read and follow the workplace policy on discrimination when filing a complaint under that policy.
- Gather documents and information: gather all the documents and information that you have about what happened, when and where it happened, who was involved, and others at work who may have seen or heard what happened.
- Speak to your manager or HR contact: reach out to the contact in the policy and specify that you are making a complaint about discrimination. They will probably schedule a time to go over the details with you, so be prepared to speak in detail about why you believe you have faced discrimination.
- Follow up with an email: send the contact an email following up on your conversation to confirm that you discussed your complaint about discrimination, include any clarifications or information that you may have forgotten to tell them, and attach any documents that you believe are important to support your complaint.
Follow through to resolution: ask the contact how long they believe the investigation will take, whether they will let you know when it is resolved, and follow up with them after the investigation is over. Also reach out to the contact if anything negatively changes in your work environment and it seems connected to your complaint. When the investigation is over, ask to speak to them again so you can find out whether they determined your claims were substantiated or unsubstantiated, ask whether there will be disciplinary action against the person you complained about, and let them know if you are concerned about your work environment. The point of making a complaint is to try to resolve the discrimination in your work environment – if that is not resolved, you may need to try another route.
How do I make a complaint with the EEOC?
To file a complaint outside of work, follow these steps:
- Consider whether you want to hire an attorney: if you believe the discrimination you are facing at work will not be fairly handled or resolved by your employer, then you should consider filing an external complaint. If you want to get compensation for the effects of that discrimination (i.e. losing a promotion, losing your job), then the best way to do that is to hire an attorney to help you with your case. In most states, you will still need to file a complaint with the U.S. Equal Employment Opportunity Commission or a similar state agency, but you can prepare a better complaint with the help of your attorney. An attorney can also help you decide whether to pursue a case in court.
- Gather documents and information: gather all the documents and information that you have about what happened, when and where it happened, who was involved, and others at work who may have seen or heard what happened. This should be discussed with your attorney, if you decide to hire one. Important documents can also be provided to the agency where you make your complaint.
- File a charge with the EEOC or state agency within 180 days:
- EEOC: you can speak to someone at the EEOC about your issues and they will help you prepare a “charge of discrimination.” You must file a charge of discrimination within 180 days of the discriminatory action. The EEOC takes appointments by phone, video call, or in person. The list of EEOC offices is available here: https://www.eeoc.gov/field-office and you should find the office that is closest to where you work. Most people will dual file their complaint with the EEOC and corresponding state agency.
- State Agency: Many states and large cities also have their own agencies that let you file charges of discrimination, and you can find those with a quick online search for where to make an employment discrimination complaint directly to your state or city. Some states give you a longer time to file a complaint or they make it easier to file the complaint and go to court quickly. Some state agencies may conduct a more thorough investigation or investigate more quickly than the EEOC. Other times, you may not want to file with a state agency if it requires you to go through their resolution process before you can file a lawsuit. The process and law will vary for each state agency. To make sure you are filing within the time limit and see if there are other important differences, contact the agency for your state.
- Be prepared to wait: The EEOC and state agencies will take a while to process your charge. Typically, the EEOC or state agency will review the complaint, investigate, and decide whether they think there was a violation of employment discrimination laws. Remember that the EEOC or state agency is neutral in this process.
- Mediation: Sometimes, the agency will ask if you want to mediate the charge, where they will assign a neutral mediator to help you and the employer come to a mutual agreement to resolve your charge, usually with money damages paid or changes in any other important terms of employment. If you go to mediation, you will probably want to have a lawyer on your side since the company will have one on their side.
Right to Sue Notice: Usually, you will receive a right to sue notice letting you file a lawsuit after the investigation is concluded. Since the investigation process usually takes a very long time, the EEOC lets you ask for a “right to sue notice” 90 days after you file your complaint. You need a right to sue notice if you want to file a case in court under federal law. But this can vary by state if you pursue the case under state law – some states will let you immediately file a lawsuit, while others make you go through the state agency process.
What is retaliation?
One major concern people have when they make a discrimination complaint is that they will be negatively impacted at work because they complained. If you believe that you are being negatively impacted, even in minor ways, because of your complaint, then you may be facing retaliation. You can make a retaliation complaint using the same steps as above for making a discrimination complaint. If you continue to see escalating issues of discrimination or retaliation in the workplace, it might be time to consider making a complaint with the EEOC and hiring an attorney.
