Discriminated or Retaliated Against at Work? What to Do

Last updated July 31, 2018.

State and federal law prohibits employers from discriminating or retaliating against workers on any of several specified bases ( (such as a worker’s race, age, gender, or whistle-blowing activity).

Unfortunately, some employers still choose to discriminate or retaliate despite those prohibitions. Although the laws provide a remedy to employees, permitting them to file a lawsuit to challenge such unlawful conduct, that remedy operates after the discrimination or retaliation has already taken place.

How can employees protect themselves from discrimination and retaliation during their employment and before filing a lawsuit? How can they shore up their legal complaints while they still have a job?

Here are a few important tips to help explain how to deal with discrimination at work and how to build a strong anti-discrimination/retaliation case if you need to file suit.

1. Document and Report Evidence of Retaliation

Many employment claims fail for lack of evidence. If you believe your employer is engaged in illegal discrimination, or if you’ve been retaliated against at work, it is important to document it and report it to both HR and the appropriate manager.

A straightforward and polite email will suffice. For instance, let’s say you are in your late 50s or early 60s. During your performance review, your new, younger manager asks you what your plans are for retirement. When you express a desire to continue working, he comments that “it’s a shame the older generation can’t step aside and make room for the next.” He then proceeds to give you the first negative performance review of your career.

At that point, it is entirely appropriate to document this exchange in an email addressed to your manager, your department head, and your HR point of contact. You needn’t be rude, threatening, or spout legal jargon. Keep it simple and direct, such as:

“During my last performance review, my manager asked when I was going to retire. He also stated his desire for older workers to make way for younger ones. He then gave me the lowest review I have ever received. I believe his comments and my review are inappropriate and based upon my age.”

Many employees avoid reporting such occurrences, because they don’t want to deal with the tension and awkwardness that can come from complaining about the boss. They also fear that their complaints will not be believed, especially if they concern remarks made during a private meeting with no additional witnesses.

While these concerns are understandable, you should still document and report. Yes, you may have to suffer through some tension-filled days with your boss while HR investigates your complaints. And yes, HR may ultimately find no hard evidence that biased comments were made to you.

However, by documenting and reporting, you have maximized your ability to protect yourself against retaliation by your employer. Both the New Jersey Law Against Discrimination and the New York Human Rights Law prohibit employers from terminating or otherwise retaliating against workers because of their complaints of discrimination. Likewise, the New Jersey Conscientious Employee Protection Act prohibits employers from retaliating against workers for complaining about and reporting employer conduct that they reasonably believe to be unlawful or a violation of public health, welfare, or other public policy.

Moreover, documenting and reporting may help increase the credibility of your complaint should it ever mature into a discrimination lawsuit. The paper trail you create helps to establish the timing of events, which often gives rise to an inference of discrimination. In the above example, for instance, an emailed complaint might show that an older worker experienced bias only after he was given a new, younger manager who routinely hired recent college graduates.

Finally, there is always the chance that documenting and reporting will actually solve your problem and prompt HR and management to rectify the situation.

2. Don’t Lose Your Cool in a Discrimination Case

Too many employees sabotage their own cases by losing their tempers in response to what they believe to be unlawful conduct on the part of their employers.

You may be fired after announcing your pregnancy. You may receive a horrible performance review after pointing out that your company is skirting wage and hour laws. You may suddenly find yourself getting written up for bogus mishaps after applying for medical leave for cancer treatment.

In circumstances such as these, it’s natural to get angry and upset. Save those feelings for your family, friends, religious advisor, therapist, or whomever you choose to confide in.

Do not, under any circumstances, curse your boss out, send management emails or texts threatening to “get even” or “burn them to the ground,” or post on social media about wanting to physically harm management, even if you’re simply joking and blowing off steam. All you will succeed in doing is to give your employer a good, legitimate reason to fire you.

3. Consult with an Employment Law Attorney

Experiencing workplace discrimination and retaliation can be confusing and stressful, to say the least. If you believe you’re being subjected to this type of conduct, call an experienced employment law attorney to discuss:

• Whether your employer’s actions rise to a legal level of misconduct. Specifically, you’ll need to discuss whether your employer is acting out of discriminatory/retaliatory intent and, if so, whether your employer’s actions are egregious enough to warrant a lawsuit.
• What your ultimate aims are. Do you want to keep your job? Or do you want to get out and move on? This will impact how you proceed, not only legally but day-to-day at work.
• Whether you have the patience and stamina for a lawsuit. Litigation is slow and often involves stress-inducing practices like depositions. A lawyer can tell you what to expect so that you can determine whether litigation is the best choice for you on a personal level.

Wondering whether you’re being subjected to illegal discrimination or retaliation by your employer? Wondering how best to deal with discrimination at work? Call today for a free consultation.