Employer Discrimination Complaints: How Specific Do you Need to Be?

If you find yourself being discriminated against or harassed at work, your first line of defense is to report it in writing – to your direct supervisor, to HR, or (preferably) to both.  But if you work in New Jersey, how specific do you need to be? Do you need to furnish a list of every nasty comment your supervisor ever made towards you, complete with dates, times and witnesses?  Should you attach a memo explaining why the low scores you received on your latest performance review were actually due to your manager’s age bias?

My advice, after decades of practice, is that you don’t have to delve into copious detail when making a written complaint to your employer.  Instead, your written complaint should simply contain enough detail to:

  1. Put your employer on notice that you believe you are being unlawfully discriminated against and/or harassed based on your protected status; and 
  2. Show your employer that your belief you are being unlawfully discriminated against and/or harassed is genuine and in good faith.

Let’s take a quick look at each of these requirements in turn.

1. Notice – or, Use the Legal Terms!

The most important purpose of a written complaint is to alert your employer that you believe the complained-of conduct is not just hurtful, or unprofessional, but illegal, because it is due to your race, gender, age, or other protected status.  

This is critical if you want to protect yourself against being fired, taken off the schedule, demoted, or otherwise punished for your complaint.  If you have given your employer a written heads-up that you think you are being subjected to unlawful discrimination/harassment, and your employer still takes action against you for complaining, then you may sue your employer for retaliation under the New Jersey Law Against Discrimination (the “LAD”).  On the other hand, if your complaint is too vague or general, you will have a difficult time proving retaliation and may not be able to support a claim under the LAD should the worst happen.

As such, when writing your complaint,

DON’T couch things in ambiguity.  “My manager is treating me unfairly compared to the other people on my team” doesn’t cut it.  Neither does: “Supervisor X continues to keep me off the schedule, even though I am available and have asked to work.”  By themselves, these statements are open to interpretation and could easily be the complaints of disgruntled or under-performing employees as opposed to victims of illegal discrimination/harassment.

DO include a brief, clear statement that you believe you are being subjected to unlawful discrimination or unlawful harassment because of your race, gender, age, pregnancy, or other protected status.  Make it explicit that you think a legal violation is occurring, not just a moral or ethical one, and for a prohibited reason.  It can be as simple a statement as: “I believe my supervisor is subjecting me to unlawful discrimination based on my pregnancy.”  Short and sweet, but the words are unmistakable and impossible to misread. More importantly, they trigger your employer’s duty to investigate your complaint with all seriousness, and give you legal protection against retaliation.

2. Genuine, Good Faith Belief

You don’t need to be an attorney with knowledge of all the legal nuances of the LAD in order to complain to your employer about discrimination/harassment.  You should, however, supply examples to show that you have a good-faith basis for believing that discrimination/harassment is occurring because of your membership in a protected class.

For that reason, your written complaint should “connect the dots” between the complained-of employer activity and your protected status.  Granted, some conduct is so egregious as to be illegal on its face – e.g., being called a racial slur by the boss. Other conduct needs supporting detail, often found through comparison to other employees.  In my example above, “My manager treats me unfairly compared to other people on my team,” is weak evidence of good faith. A much stronger statement is: “My manager gives all the new sales leads to the other members of my team, who are all in their twenties.  I’m in my late fifties, and he only gives me the dead-ends.”

The Dilemma

I consult with many would-be clients seeking representation in post-termination retaliation cases under the LAD.  Many of them submitted complaints to their employers that did not make it unequivocally clear that they were complaining about unlawful discrimination/harassment.  When questioned, these would-be clients often tell me they chose to use more general verbiage because they were afraid of losing their job. Unfortunately, this resulted in complaints that sounded more like personality conflicts, rather than instances of discrimination/harassment. Ironically, the vagueness they thought would save their job allowed them to be fired.

The decision to formally complain to your employer is risky and should not be taken lightly.  However, if you choose to complain, do it in a way that affords you the greatest protection under the LAD.  If you would like some guidance on the issue, call our offices today for a free consultation.

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