What to Do If You're Facing Discrimination in the Workplace

What to do if you are being discriminated against or harassed at work.

By , J.D., UC Berkeley School of Law

If you are facing workplace discrimination or harassment, there are certain steps you should take right away to protect your rights. At the same time, however, you should avoid doing anything that could jeopardize a future legal claim against your employer.

Types of Workplace Discrimination and Harassment

Federal laws and the laws of most states prohibit discrimination on the basis of:

  • race
  • color
  • national origin
  • sex (including sexual orientation and gender identity)
  • religion
  • disability
  • age (if the employee is at least 40), and
  • genetic information.

Some states prohibit discrimination based on additional protected characteristics, such as marital status or receipt of welfare benefits.

Prohibited Conduct

These laws protect employees in every aspect of employment, from hiring to firing. An employer may not refuse to hire employees of a particular race, refuse to promote women, exclude employees with disabilities from client meetings and company events, select older employees for layoff, or segregate employees of certain ethnicities in jobs that don't involve customer contact, for example.

Harassment as a Form of Discrimination

The laws that prohibit discrimination also prohibit harassment. For example, if employees tease and belittle a coworker because of a disability, or tell dirty jokes and send female coworkers pornographic images to make them uncomfortable, that would constitute illegal harassment.

Unlawful Retaliation

Retaliation is also illegal. Employees may not be disciplined, fired, or otherwise punished for complaining about discrimination or harassment, filing a charge of discrimination or a lawsuit, or participating in an investigation of workplace discrimination or harassment.

In workplace discrimination lawsuits, juries often find that the plaintiff's underlying claims of discrimination were unfounded, but that the employer retaliated against the employee for filing a discrimination complaint. Many millions of dollars are awarded by juries each year based on retaliation claims alone.

    What to Do About Discrimination in the Workplace

    If you believe you are being harassment or discriminated against, you should speak to a lawyer right away. A lawyer can explain your rights, assess your situation, and help you decide on the best strategy going forward.

    A lawyer can also make sure you meet all of your legal deadlines for taking action, such as filing a charge of discrimination with the EEOC or filing a lawsuit. And, a lawyer can help you navigate your company's complaint process and investigation.

    Here are a number of other steps to consider:

    • Make an internal complaint, following your company's written procedures. If your company has a complaint policy, follow it. If not, ask someone in the HR department how to file a complaint of harassment or discrimination. Filing a complaint helps protect your right to file a lawsuit later, by putting the company on notice and giving it an opportunity to fix the problem.
    • If you face any retaliation for filing a complaint, notify the company immediately. As noted above, retaliation is illegal -- but that doesn't mean it never happens.
    • Make notes of all discriminatory or harassing incidents. Try to create a timeline of what happened, when, who was there, what was said, and so forth. Keeping notes as events happen will help you remember the details.
    • Keep copies of evidence you're entitled to have. For example, if coworkers are sending X-rated email messages, print them out and save a copy. If someone posted pornographic pictures on your cubicle walls, take photographs. But don't take anything that belongs to the company (see below).

    What Not to Do If You're Experiencing Workplace Discrimination

    There are a few things to avoid, as well:

    • Going it alone. Many employees wait to talk to a lawyer until they are fired or until the company has investigated their complaints. This can be a mistake, however. During its investigation, the company will be collecting evidence, taking statements from you and other witnesses, and so on. It can be very helpful to have a lawyer's advice for these proceedings, especially because they may become very important if you later decide to sue. Better to have advice early on than to make mistakes that can't be corrected later.
    • Taking documents that belong to the company. If you take or copy confidential documents, the company will find out about it if you decide to sue. And, the company can try to limit your damages by claiming that taking the documents was a firing offense.
    • Quitting. It's very uncomfortable to continue working in a harassing or discriminatory environment. But if you quit, it will be much harder to win a lawsuit. Although you can make the legal claim that you were constructively discharged -- forced to quit due to intolerable working conditions -- this is very hard to prove. If you find your work situation extremely stressful, talk to your lawyer about steps you can take to ease the strain without jeopardizing your legal claims.
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