For many employers and business owners, the real issue of workplace retaliation is considered to be unlawful discrimination of an employee against his/her request for continuation in employment. In fact, many common forms of discrimination against employees happen right under the guise of legality – such as age discrimination, gender discrimination, race discrimination, and so on. In addition, businesses may also be subjected to liability for providing benefits and workplace accommodations to some employees who belong to a protected class but who have unjustifiably declined or are unable to continue in employment. The purpose of this article is to describe two legal defenses that often help an employee who feels he/she has been discriminated against on the basis of his/her protected status.
The first defense to reporting discriminatory behavior in the workplace involves the employer’s responsibility to show that they did not harbor the anti-employee feelings in the first place. This can be done through the creation of a “hostile work environment” or conduct that chilled or prevented employees from expressing their sincere professional belief that sex, race, age, or disability should be of interest to them. In other words, if there were anti-gay (or anti-women) feelings expressed in the office environment, or if African American employees were denied equal opportunities with other employees, it is imperative that the employer take responsibility for continuing to do so. Therefore, to report discrimination, employees must show that they have been victims of workplace bias – which would require them to document such incidents. In many cases, however, the offending conduct cannot be easily identified, and therefore, the offending actions are not taken as a result of anti-employee bias.
Another common form of workplace discrimination involves the firing or demotion of an employee for reasons that are unrelated to the employee’s performance – either for reasons that are based on the employee’s race, sex, religion, national origin, or disability. It is necessary, then, to take action to remedy the situation through reporting to a supervisor, the Equal Opportunity Employment Opportunity Commission (EEOC), or legal counsel. It is not mandatory for employers to accommodate religious beliefs or to provide medical leave accommodations to religious persons; however, these actions may help the employer avoid future problems. For example, if an African American female employee reported being unfairly fired due to her sexual orientation, the employer might adopt a policy requiring religious accommodation (e.g., allowing the female to use her religious faith to excuse her pregnancy) in the future, or at least to let the employee know that such accommodation may be offered in the future.
Similarly, it is vital to be aware of what constitutes “reasonable accommodation” and how to document the actions of employers in violation of this principle. As used in this context, reasonable accommodation means providing a modified workplace environment to a protected class (or a similar one) to make things easier for that protected class to perform the job duties. This reasonable accommodation could involve, among other things, eliminating language, cultural, or racial barriers to the employer’s employees; reserving jobs, classes, or shifts for employees with a physical handicap; arranging for new commuting routes; and more. Employers must always offer reasonable accommodation, not only on religious grounds but on a range of other bases as well.
On the other hand, employers must be cognizant that they are legally obligated to afford reasonable accommodation to those who have been affected by unlawful discrimination. In addition, employers must make sure that their anti-discrimination policies do not violate the legal rights of former employees, former co-workers, or anyone else. In addition, an employer may be held liable for even inadvertent employment actions taken in violation of the law. As previously noted, a recent decision in a court case illustrated the perils of allowing anti-religious discrimination in the workplace.
The first step that an employee should take if he suspects he is the victim of illegal discrimination is to notify his supervisor, liener, or whomever of the complaint. Within twenty-four hours of the notification, the person should make a written statement to the supervisor that outlines his allegations and alleged discrimination. He should also be given instructions about how he intends to follow up on his complaint. If the complaint is found to be true, the offending conduct should be addressed in writing. If not, the individual should be advised that he has the right to file a complaint with the Equal Employment Opportunity Commission or OGE, the government agency that oversees complaints involving workplace behavior.