Discrimination in the workplace, whether it’s over race, ethnicity, gender, sexuality, age, or religion, is no joke, and dealing with it isn’t as easy as just “calling a lawyer.” Here are a few things you should know before you go the legal route.
Illustration by Sam Woolley.
Workplace discrimination takes many forms, and it’s more common than you may think. According to a 2002 US study on race in the workplace by Rutgers University, 28% of African Americans, 22% of Hispanics and Latinos, and 6% of white Americans have experienced blatant discrimination at work. Far more reported unfair treatment, and all of those numbers are likely under-reported. A 2013 Harvard Business Review research summary found similarly dismal experiences by women in the workplace, and a 2007 Williams Institute study of sexual orientation and gender identity in the workplace found in some cases, up to 68% of LGBT people surveyed have experienced unfair treatment or discrimination. These are just a few studies; while numbers vary around the wide body of research on the topic, they all have one thing in common: This is a real problem.
Sometimes it’s a systemic problem meant to either marginalize you or at least make you keep quiet about what’s going on. In other cases, it can just be one manager acting out their personal prejudices. In either case, what you should do if you’re the one being targeted varies depending on how bad it is — and what’s really at stake. We sat down with Elizabeth Unrath, a labour and employment law attorney, to talk about it.
First, Talk It Over With Someone You Trust
Your first step is to find someone you can trust to talk to, who can help you get out of your own head and get some perspective. Find a sounding board. Elizabeth explains:
My first piece of advice to an employee who thinks they might be the victim of discrimination is to find a trusted non-work friend, attorney, spouse, shrink, or whomever provides you with good advice in your life. Lay out the facts for them and ask their opinion. Do not have this conversation with anyone you work with. Not a work friend and definitely not HR. This can be particularly helpful in situations where a single comment or event occurred.
Inappropriate behaviour happens often in workplaces, but not all inappropriate behaviour is legally actionable. 90% of the employees contacting me about discrimination do not have a legally viable case. Your boss hating you, or being a jerk, is not illegal. Your boss discriminating against you because of your race, gender, or another protected category, is against the law. This is why some solid advice from a spouse/shrink/lawyer can be helpful.
Avoid venting too much — a little is fine, but too much just makes you feel worse, and distract from your goal. Try to get their actual opinion on the situation. Then you can make an educated decision on where to go from there, and how to handle what’s been going on.
Decide How You Want to Approach the Problem
Once you have some solid advice, you have a better idea how to proceed. It’s easy to just say “you should quit,” and that’s definitely one option, but not everyone has the luxury to just leave a job or find another one quickly. Alternatively, maybe you’ve decided that the job you’re in is one you want to fight for. Maybe you’ve made your career at this position, or you have a stake in the company or retirement benefits on the horizon. Maybe you don’t want to be pushed around, or you want to expose what’s going on so other people don’t have to go through what you’re going through.
You really have three options. Let’s run them down, one at a time.
Option One: Document Everything and Talk to a Lawyer
If you’ve talked things out with a friend you trust, and they look at you, mouth agape, and say what you’re dealing with is almost certainly illegal, it’s time to talk to a lawyer, as soon as possible. Elizabeth explained that even a quick call is essential here, keeping in mind the statute of limitations. Getting good advice as soon as possible is critical, so don’t delay.
The first thing a lawyer will tell you to do is document everything — all of the emails, all of your performance reviews, everything that you can document should be documented. Look for your company’s anti-discrimination policy (but don’t talk to HR to get it.) It should be on the company web site, in your employee handbook, or in other HR documents you have access to. Look it over and see if it addresses the behaviour you’re seeing.
FindLaw suggests you keep a work diary (something we’ve suggested before) or anything else used to harass you or to “send a message,” as it were. They say:
Keep a diary of any incidents of discrimination or harassment. Record the date, approximate time, location, parties involved, witnesses, and details of the improper conduct or speech. Keep any objects or pictures which were posted, left for you, or given to you in the workplace that you believe were discriminatory or harassing.
Note: If an item is posted on a bulletin board, wall, refrigerator, or other common and visible area in your workplace, and you find it harassing, you may confiscate it or make a copy of it. By posting the item in a “public place” the perpetrator has allowed others to see it and, consequently, you have the right to remove it or copy it.
Next, read up on employment and discrimination law in your state or region, and what federal laws cover. The Australian Human Rights Commission has a list of the various laws pertaining to employment discrimination. There might be state laws that apply to your situation as well, so check with your state legislation as well.
Your next step is to reach out to an employment lawyer or EEO expert. Once you’ve found a lawyer, you need to know how to talk to one and what to bring. The bottom line is that you need to come with as much documentation as possible and a timeline of events and conversations that can help them understand if you have a case that’s actionable, or the whole thing comes down to your word against someone else’s.
The worst that can happen is that a lawyer or someone who sees these cases all the time will sympathize with you but tell you that what you’re dealing with isn’t illegal — or a case they can take up. Either way, get the thoughts of an expert.
Option Two: Handle It Personally
On the other hand, some people are just jerks, or they’re just thoughtless. Some people may just be jerks to you, and still other people may be jerks to you because of your race, ethnicity, gender, or religion. But being a jerk isn’t illegal. If you don’t want to leave, it’s time to have a direct conversation with the person at fault.
This conversation doesn’t have to be confrontational, either. Sometimes it’s as simple as letting your boss know that what they said is offensive to you, and you’d rather they didn’t say it again. Be honest and assertive, and avoid making a value judgement. After all, you’re not trying to change anyone’s minds or prejudices, and it’s not your job to educate them. You just want them to treat you with respect, and work in an environment that isn’t toxic.
Do Not Go to Human Resources
One thing that all of our experts and resources unanimously agreed on is that you should not talk to human resources. There’s a popular misconception that you have to, since “well why didn’t you talk to HR” will inevitably come up. Most employment lawyers know full well that talking to HR often leads to retaliation for many marginalized people.
Human Resources is there to protect the company, not to protect you. Elizabeth explains:
And also, you still shouldn’t talk to HR. Always remember that you and HR have the same employer. HR’s job is to protect the company. Even if they are supportive of you, they are not usually the decision maker about who should be fired/disciplined.
What if there isn’t a specific incident, but rather, you just don’t think you’re going to get promoted or a raise because your company is racist/sexist/etc? This is a much more common situation. Many employers are smart enough today to realise they shouldn’t say certain things out loud. Yes, you can talk to an attorney, but the issue now is one of evidence. Some companies have transparency in their salaries and hiring/promotional practices, but most do not and most consider that information to be private. I’ve had clients that have stolen budget and salary documents from HR offices. I do not recommend that people do that, lest you end up being accused of theft.
There are laws related to getting documents related to pay parity, and you could speak with other employees, but I don’t necessarily recommend that employees try to do this while they are still employed. Talk to an employment law attorney about your rights.
None of this means that HR is evil, it’s just that their responsibility is to the company, not you. In the course of researching this piece, I found too many stories about HR involvement that wound up with the marginalized person miserable and sorry for even having brought it up because of the fallout.
There’s one exception: If your company’s anti-discrimination policy is clear, you don’t want to quit, and you want to handle the issue on the inside (and you’re willing to deal with what might happen if things go awry,) then maybe HR is worth bringing in on the conversation. Odds are, however, that even in the best case, they will try to mediate the issue away, transfer employees, or do something to make the problem disappear, rather than actually address the harassment or discrimination in question.
Option Three: Quit and Walk Away Without Regrets
For most people, the fastest and easiest option is to just leave and find work somewhere else. If the offender is your boss or someone in a position of power, even trying to talk to them can be dangerous. If the issue is systemic across a company, it’s even more dangerous, and can be dangerous even with a lawyer involved. Document everything and plan your escape. Don’t stick around and risk retaliation. In many cases, it’s better to get out on your own terms than try to fight to stay somewhere you and your skills aren’t appreciated, or worse, where your life will be miserable if you dare stand up and fight.
Of course, that’s easier said than done. When you have a family, student loans, or just bills to pay, leaving a job because some jerk thinks racist jokes are funny, or your boss won’t stop catcalling you, isn’t so easy. In fact, we’d say even if you just plan to leave, get some perspective, document everything, and talk to an employment lawyer or specialist anyway.
The worst that will happen is that everyone will agree that what you’re going through is crappy. Then, if a lawyer or the authorities offer to help, you’ll be able to make a decision based on what you can do, instead of working from a place of helplessness. Be careful, and make your call based on the long haul, not just today. Whether you decide to take up the banner and fight or leave for greener pastures, you’ll know you’ve made the right decision for yourself, with all of your cards on the table, from a place of power.
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