Working as an employee who is subject to racist remarks, unwanted sexual attention, or bogus discipline due to age or disability is unpleasant, to say the least. It can also be unpleasant for that employee’s co-workers to witness such discrimination and endure the stress it creates in the workplace.
I receive calls from many employees who are not personally the targets of bias, but who work alongside someone who is. They often ask:
- May I report such discrimination to management, even if I’m not a victim?
- If I do, am I protected in any way from being fired, disciplined, or otherwise retaliated against by my employer?
Reporting Discrimination is Protected Activity Under the New Jersey Law Against Discrimination (the “LAD”)
The LAD doesn’t just prohibit employers from discriminating against an employee based on their membership in a “protected class” (i.e., a group based on factors like race, national origin, gender, age and disability). The LAD also prohibits employers from retaliating against any employee who complains and reports of such discrimination – whether it’s directed at themselves, or at another worker.
In fact, the LAD’s proscription against retaliation is so broad that a complaining employee does not have to be a member of the same protected class as the employee who is being subject to discrimination. For example, a white employee can report discrimination against a black employee to management, and vice versa. Likewise, a male employee can report the sexual harassment of a female employee, and vice versa.
Does That Mean That My Employer Won’t Fire Me or Otherwise Discipline Me For Complaining About Discrimination?
Unfortunately, no. The LAD cannot guarantee that your employer won’t retaliate against you, up to and including termination, for complaining and reporting discrimination/harassment. All the LAD does is to make your employer’s retaliation illegal, giving you the grounds to file a lawsuit against your employer under the LAD should such retaliation occur.
Okay. So Should I Complain On Behalf of My Co-Worker or Not?
This is a very important, very sensitive question that you should ideally discuss with legal counsel. When advising employees whether they should file reports of discrimination on behalf of co-workers, I ask them to consider the following:
- The Employer’s Track Record: Most employers take complaints of discrimination quite seriously, investigating them fully and taking remedial action where necessary. However, if your employer has a known history of ignoring complaints, or of retaliating against workers who file them, then complaining obviously carries its own risk.
- Your Own Track Record: The bare fact that you complained to your boss about discrimination/harassment against another employee, then were fired, may not be enough to support a claim under the LAD if you have a mediocre employee history. Negatives like chronic tardiness or absenteeism, sub-par performance reviews, and documented instances of discipline allow your employer to explain away your termination as a justifiable business decision, rather than an act of retaliation.
If you are serious about filing a complaint of discrimination, make sure you do your job well and don’t give your boss an excuse to get rid of you.
- If You Decide to Complain, then Document, Document, Document. Your complaint of discrimination/harassment directed at another employee must be in writing, ideally addressed to the appropriate manager and HR representative (most employees I represent choose to send an email). I cannot emphasize the importance of documenting enough. A claim of retaliation can be seriously weakened, if not destroyed, if your complaints are made only verbally. Without hard proof, management’s first recourse is often to deny that you ever complained in the first place.
In your documentation, use words that emphasize you have direct knowledge of the discriminatory conduct at issue. For example, phrases such as “I observed” or “I heard” will let management know that you are in a position to testify under oath regarding the conduct, if need be. You needn’t go into every specific and detail, but you should share enough to indicate that you are a witness.
Keep Your Cool. All communications you have with management regarding your complaints should be professional. Your written documentation should have a neutral, matter-of-fact tone, like any other business documentation Avoid the use of all-caps and strings of exclamation points – the simple fact that you are mustering the courage to complain shows how strongly you feel. And remember, your focus should be on the illegal conduct your co-worker suffered, not your emotional reaction to it.
Similarly, keep it together during any verbal communications, including those relating to the investigation of your complaints. Raising your voice, making threats, or otherwise exhibiting anger will only – once again – give your employer cover to retaliate against you.
The decision whether to formally report and complain of discrimination and harassment against another co-worker is one of the most difficult there is, especially if you are fearful of losing your job. If you would like to discuss the decision with an experienced employment attorney, call our offices today for a free consultation.