Is Complaining Worth the Risk?

Retaliation for Discrimination Complaints

By Paul Igasaki, IMDiversity.com Featured EEO Columnist

You feel you were wronged. You believe you were denied a promotion due to your age, or were harassed because of your religion. You were fired due to your race, or were denied an accommodation for your disability. Perhaps you weren’t discriminated against, but you are considering being a witness for someone who was sexually harassed. Whatever the claim, you believe your case is strong. What weighs in the minds of many in your situation is, “Is it worth the risk?”

You may win or lose your claim. Whether they file it with the Equal Employment Opportunity Commission or a state civil rights commission most people are concerned that if their employer would go so far as to discriminate or to allow discrimination, it might seek retribution thereafter. You could be fired, given poor assignments or, as in one case involving a police agency, placed in dangerous situations by your coworkers. More subtly, harassment by coworkers could be overlooked. Even small slights could pile up to make one’s life miserable.

It is true that some people are “serial complainers,” filing complaints repetitively and based upon slights that are short of a real violation. But even such complainers may face real discrimination. And even they have a right to be free of retaliation. In fact, most workers don’t want to take the initiative of taking on the boss or management. After all, the employer has more power, usually controls the records, and will be able to control your work life unless you were dismissed. Consequently, most workers are reluctant to file a claim even if they feel they were wronged.

The law prohibits retaliation. It is a high priority for the EEOC, or other civil rights enforcement agencies, to protect the integrity of the process. Therefore, if a company seeks retribution against someone who files a claim, even if the claim itself fails, it may be successfully prosecuted for retaliation afterward. This protection is equally available to someone who serves as a witness in another person’s case . Without this protection, few would take the risk of challenging the company or, in many cases, their coworkers as well. The system would invite intimidation without this protection.

Retaliation is relatively rarely done in the open. It is usually masked by a pretext that sounds valid. For example, where a worker has won a discrimination complaint that he or she was passed over for a promotion because of gender, a company may (usually after some time has passed) act on some apparent violation of company rules, demoting or dismissing the worker. The closer its connection to the complaint, the more suspicious the action may be. First, the pretext could be trumped up, so the validity of the claim needs to be investigated. Even if valid, the infraction could be behavior accepted from other workers without similar action being taken. The firing may be due to routine lateness, for example. This sounds valid, but if other employees also came late without being fired, the reason seems pretextual. It could be found to be retaliation and illegal.

From the company’s point of view, where a worker stays in the company, it isn’t fair that the person should be shielded from future discipline properly applied just because she or he filed a discrimination complaint, win or lose. Concern over possible retaliation will cause some managers to be overly-cautious about applying the rules to someone who could claim retaliation. But failure to be fair could result in valid complaints from other workers.

People who have filed a discrimination complaint should be careful not to change their behavior, figuring that employers might now be “afraid of them” and taking this as an opportunity to get away with longer lunches, for example. In the aftermath of a complaint, both sides will monitor behavior more closely and actions will be more carefully documented before.

Even Winning Can Come at a Cost

Many who have prevailed in a discrimination matter find the workplace atmosphere has become so uncomfortable that they don’t want to stay with the employer afterwards. Also, many who file do so only after they’ve lost their jobs. Retaliation is harder in these cases. Yet, if a company provides negative references or otherwise acts to hurt one’s employability, retaliation claims could still be pursued. Claims other than discrimination may apply here, such as defamation, and most well-advised employers are pretty careful to avoid this.

As a former executive of the federal EEOC I want people to come forward if they face illegal discrimination, both because I believe in the laws we enforced and because unfair situations will not be corrected for future generations unless people come forward in the present.

Some groups appear even more cautious than others. Immigrant groups, or others such as Asian Pacific Americans, file discrimination complaints at a lower rate than other groups. It has not been my experience that they suffer discrimination less, but rather that they are unaware of their rights or more cautious in exercising them for a variety of reasons. This is true for other groups as well. While a few are quick to complain, most people let the situations get pretty bad before taking action.

Because of this, I often would remind people that democracy, or at least the American version of it, requires that we stand up for our rights on an individual basis if the system is to work. We can’t rely on others, whether it be our employers, our unions or our coworkers, at least initially. It all comes down to us to let the system know that we haven’t been fairly treated. Speaking up against injustice — or put more crassly, complaining — is the American way. “Speaking up” could range from voting and writing one’s Senator to filing an EEOC complaint or providing testimony to someone else as a witness. In any case, it is a matter of civic responsibility.

Intimidating one from using the systems that protect our rights is unlawful and must be taken seriously.

That being said, one does have to be realistic. Win or lose, filing a complaint will result in at least a less comfortable environment. A little discomfort is worth it if one’s rights have been taken away, but there are degrees of discomfort and some could be more than one would want to bear. The difficulty of prevailing — given whether there is corroboration for one’s complaint and whether the employer intends to fight hard — are real considerations. When deciding whether to take the risk, one should consider how much one has lost in terms of career advancement, compensation or personal well being, and how hard it will be to win. Consider what you are likely to gain if you are successful and then how likely winning is given what you can prove to a decision-maker. The burden of establishing evidence to make a successful case in on the complainant who is accusing an employer of discrimination. It is sad but true that either party’s chances of winning are a lot better if they are represented by a lawyer. Willingness to negotiate from both sides indicates that things might work out. Increasingly, beyond federal agencies and courtrooms, mediation or, in some cases, arbitration may have different dynamics.

A Serious System

Usually one doesn’t pursue a case unless something significant, ranging from the job itself to one’s mental health, are at stake. But I have seen cases over whether one’s desk is smaller in size than those of colleagues of equal grade, or whether a conference folder is nicer for some others at a work meeting. I remind people that the process can take a great deal of time, energy and sometimes money. More importantly, I strongly urge folks who have serious doubts about whether their case involves discrimination to proceed cautiously. While individuals should report discrimination, those who are too quick to complain too frequently may appear as the “boy who cried wolf,” which can be ultimately damaging both for themselves or others when truly serious grievances arise.

The equal employment opportunity system is not a good forum for working out one’s anger or to fill one’s time. It might be the right place if you want discrimination dealt with, however. Even discrimination that doesn’t seem worth pursuing initially could pile up to produce a genuinely hostile environment. Standing up for your rights is not selfish. Discrimination is wrong. Unless Rosa Parks decided that this time she wasn’t going to give up her seat on the bus, America would be a different place.

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• EEO Corner: Sexual Harassment – A Sea Change in the Workplace
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