There is a basic rule in employment law that an employee pursuing a claim in court must show that he or she first pursued their complaint using the employer’s internal complaint procedures. A court may dismiss the lawsuit if the employee sued without first trying to fix the problem internally.
Mostly, this rule applies to current employees who are currently experiencing discrimination or harassment. Former employees — people who’ve been fired and claim the firing is unlawful — are generally not required to go back to the workplace and use the internal procedures to challenge the firing. That would be expecting a bit much.
But if the unfair treatment takes place while the employee is still on the job, the rule requires the employee to promptly report it as soon as they realize it, in the manner set out in company policies. One court addressed this issue and, in dismissing an employee’s lawsuit, focused on this requirement:
[The case against the employer is hereby dismissed because the company] exercised reasonable care to prevent and correct promptly any sexually harassing behavior – including by adopting and giving notice of a policy under which a complaint of sexually harassing behavior could be made to [people in specific positions inside the company] and the [employee] knew of the policy, did not give notice to the people identified in the policy, and unreasonably failed to take advantage of the policy or avoid harm otherwise.
The rule is incredibly harsh. The employee in that case reported the harassment to several supervisors, but just not – according to the court – the right ones. In my experience, though, reporting discrimination internally rarely helps the employee regardless of to whom it’s reported. I have obtained data in various lawsuits to see just how often internal investigations were decided in the employee’s favor, and the result was as expected. Employee complaints are rarely upheld. Cynical employers claim that’s because most of the complaints are baseless, but I don’t think that explains it. The percentage of “findings” by employers in their own favor after an investigation are so frequent that it calls into question the fairness of the employer’s investigative mechanisms. You just can’t expect anyone to investigate themselves in a balanced way. Imagine, in a different setting, allowing people accused of crimes to investigate their guilt. (“Not guilty, I declare myself!”). We laugh at such an idea, because that system of justice would be outlandish. But we’re supposed to believe an employer accused of serious misconduct would act differently.
That said, if you’re an employee who wants to protect your right to bring a lawsuit, you should always strictly follow the company’s written policies for reporting complaints. It might not change anything, but it will prevent your employer from raising a technical argument that could cost you the right to seek relief from a jury.
Here are my Seven Rules For Reporting:
- If you are experiencing discrimination or harassment, read the company’s policies carefully. They can appear in the employee handbook, in operational manuals, or posted notices on lunchroom billboards.
- Follow the procedure in the order laid out in the policies. Don’t skip any step unless the policy expressly allows you to do so.
- Report to the specific people or positions identified in the policy. Reporting to the wrong person can nullify your complaint
- Be crystal clear what you’re reporting. If it’s discrimination or harassment you’re reporting, use those words, and explain what kind of discrimination or harassment you’re experiencing. A good complaint identifies you, identifies the person engaging in the wrongful conduct, specifically identifies the problem as discrimination or harassment, and identifies the type(s) of discrimination (e.g., “Mike is discriminating against me because I’m Asian, because I’m 60 years old, and because I am disabled“). An inadequate complaint would lack this information and might not protect your rights (e.g., “I don’t like the way things are going for me here”). Reporting discrimination and harassment (based on race, gender, age or another protected category) entitles you to special legal protection. Just complaining that things don’t always go your way doesn’t. Be specific. Don’t let anyone reword your complaint or rephrase it for you, since company representatives (supervisors, owners, HR representatives) have an incentive to press you to water down your complaint to the point that it has no value.
- Use your name. I don’t recommend anonymous complaints in these settings since (a) the company will probably know it was you anyway, and (b) an anonymous complaint may not give you any legal protection at all.
- Do it in writing. Proof of verbal complaints disappears the minute you stop talking. I recommend emails because they reliably prove transmission, date and time transmitted, and identity of the recipients.
- Follow up. If your initial complaint is ignored, see what the policy recommends. Often, policies tell you that if you’re not satisfied with the way your complaint was handled, you should then pursue a different path. Do it. Don’t skip anything. And do it in writing. Incomplete efforts to pursue a complaint can be as bad as no effort at all. Be equally clear at every level.
Categories: Complaints & Documentation