If you are still employed and someone discriminates against you, or if you are pregnant, or if you are disabled—tell human resources in writing (e-mail is fine).
Why? Putting your employer on notice of discrimination against you or any condition that is protected under federal statutes (and some state statutes) gives you more leverage. After you put your employer on notice, if it fires you or takes any other adverse action against you, then you could have a separate claim for retaliation.
The federal government has enacted several laws that protect employees who report wrongdoing. Several of the laws discussed in this book, including Title VII, contain anti-retaliation provisions that protect employees who come forward and report discrimination. These laws allow attorneys to comfort clients who are afraid that they’ll face reprisal for asking to be treated fairly. But it’s important to keep in mind that, even if retaliation is illegal, companies may still engage in it. Anti-retaliation statutes, however, award employees monetary damages when their employers retaliate for engaging in protected activity.
Let’s say that you are a woman and your supervisor is a man. He’s a decent guy, but sort of old school. He is nice enough to you, but spends more time with your male colleague. They talk about fantasy football. You couldn’t care less.
Three times, you apply for a promotion. Each time your supervisor gives the job to a man. Two of the three men have less experience than you. The first two times, you take it in stride. By the third time, you begin to suspect that your boss has passed you over because you are a woman. Assuming that your employer has at least fifteen employees, this is potentially illegal discrimination based on sex. That’s one claim.
Let’s further suppose that you don’t say anything to your boss, but you do share your suspicion with a female co-worker. As soon as you do, you know it was not the best call. She is the office gossip. The next week everything is fine: it’s business as usual. Your boss is his friendly, if patronizing, self. But the following Monday, you come into work just as Office Gossip is walking out of your boss’s office. She walks away quickly and pretends that she doesn’t see you. Your boss is weird the rest of the week. He seems angry. At one point, he comments, “It’s too bad that some people are not grateful for what they’ve got.” A week later, you are called down to HR and fired. The company won’t even give you a reason.
Now, you know the truth. Your ex-boss is a sexist. He’s not a gross, try-to-cop-a-feel sexist; he’s just a plain-vanilla kind who thinks men are better workers than women. Plus, men like sports. He was content as long as you worked under him, doing as he asked. (And you did, and did it well.) Then Office Gossip told him about what you told her: that you knew he was a sexist. When he found that out, your boss had you fired. What he told HR is that he did not think you had long-term potential in the company. The real reason was that he didn’t want an uppity woman working in his company.
As you might imagine, this is also illegal. But you don’t have a claim for it. Why? Because you didn’t tell him or human resources about it.
Let’s change the facts a bit. Suppose that after you didn’t receive the third promotion, you sent a letter to the director of human resources. It was short:
I believe that my boss has failed to promote me solely because I am a woman. Please let me know if you would like to talk with me further.
You carbon copy your boss. The next week, you get fired. Now you have two claims: one for sex discrimination and a separate claim for retaliation.
Here’s the important part. You could win the retaliation claim even if you lose the sex-discrimination case. In fact, it may be easier to do so.
Let’s suppose you sue. The attorneys take a bunch of depositions. It turns out that your boss is a sexist, but mostly he’s just dumb. He made bad hiring decisions using the wrong criteria. Or, at least, the company is able to tell a convincing story to that effect. The court kicks that claim out. But the retaliation claim is pretty close to a slam-dunk. When the director of human resources testifies, she says that the day before the company fired you, your boss stormed into her office, threw the letter on her desk, and said, “This is no place for a troublemaker. I want you to make sure of that no later than tomorrow.”
So, you lost on what attorneys call the “underlying claim”—the discrimination—but won on retaliation. You can further imagine a scenario in which you win on both claims. That’s one way to double the value of your claim.