Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Thursday, March 31, 2011

I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do?

            I know it seems scary to report sexual, racial, or other harassment to human resources. It’s even scarier when they call and tell you they’ve set up a meeting with their lawyer and you. Some employees want to refuse or delay this meeting. But being called into a meeting like this is actually a good sign. It means your employer is doing what they’re supposed to do. (Either that, or you’re being set up to be fired, but let’s stay optimistic).

            The Supreme Court says you must report discriminatory harassment under the company’s published harassment policy and give the company a chance to fix the situation. No excuses accepted, no exceptions made. (In Supreme-land, nobody is ever justifiably afraid of being beaten to a pulp, fired, demoted, or made miserable if they complain).Yeah, yeah, I know. But it's not my rule. You still have to do it.

Once the employer receives a report of discrimination or discriminatory harassment, they are supposed to conduct a reasonable investigation. If the discrimination or harassment has occurred, they must take prompt action to correct the situation. Plus, they’re now on notice that someone in their company has a propensity toward illegal behavior.

            With a little preparation and a little backbone, this meeting may be just what you need to make your work life peaceful again. Here are some do’s and don’ts for that meeting.

            DO
  • Put your complaint in writing if you haven’t already. Make sure you call it a “Formal Complaint of Racial [or Sexual/Age-Based/National Origin, etc.] Harassment [or Discrimination].” That way they can't claim later you only reported general harassment or bullying.
  • Make notes to take with you. Write down everything that was said or done where you were singled out for harassment or different treatment due to your race, age, sex, national origin, pregnancy, color, genetic information, religion or other protected status.
  •  If any comments were made about your protected status, write those down too.
  • Were you denied a raise, paid less, denied a promotion, or disciplined when others in a different category (different race, different sex, younger, non-disabled, etc.) were treated better? Write it down.
  • Try to recall dates, who made the statement or singled you out, witnesses, and as much detail as you can provide. If you don’t recall an exact date, it’s okay to write down “around May” or “last Spring.” Do the best you can. Write it all down so you remember.
  • Write down names of everyone in your same category (same race, same sex, etc.) who was also treated badly.
  • Write down names of everyone in a different category from you who was treated better.
  • If you have written proof – emails, memos, photos, recordings (not illegal tape recordings of conversations though), or other documents, gather them to bring to the meeting. Be organized. You’ll be more believable and you’ll look professional.
  •  Take good notes of the questions asked and the answers you gave.
  • If you have an attorney already, let them know about the meeting. While they may not be allowed to attend, they might ask if they can. At the very least, they might give you some tips on what to say and what to expect. They may have their own do’s and don’ts they want to go over with you. If you're represented, the company attorney can't meet with you without your lawyer's permission.
  •  If you’re a member of a union, tell your union representative. They’ll probably want to be with you.
  •  Stick to your guns. If they try to get you to change your story, say it wasn’t due to race/age/sex, etc. but something else, don’t cave.
  • Ask if you can see the investigative report once it’s complete.
  • If you remember something after the meeting, think you didn’t have an opportunity to present everything, or want to clarify something, do write a memorandum to the people who attended the meeting laying out the details you want to add, so you have proof.

            DON’T

  • Don’t tell your coworkers about your complaint or start bad-mouthing anyone. Your complaint is supposed to be confidential. The employer might discipline or fire you for violating confidentiality.
  • Don’t talk about unfair treatment, general harassment, personality conflicts or bullying. Those aren’t illegal. Make sure to focus on your complaint.
  • Don’t use illegal recordings. If you recorded a conversation with your harasser and the harasser didn’t know about it, in some states you may have committed a crime.
  • Don’t insist on having an attorney present, to the extent you refuse to attend the meeting. Most companies won’t allow you to bring an attorney with you to an internal investigation. If you refuse to cooperate, they’ll have a nice defense to your claim and they might say you were insubordinate.
  • Don’t concede that the reason the person you’re complaining about did something is they dislike everyone. If you are asked why the discriminating person did something to you, the answer is almost always, “Because of my race/age/sex, etc.” or “To retaliate against me for reporting discrimination.” If you say it’s because they’re a bully, you’re giving the legal department ammunition to say the person is an “equal opportunity harasser” who is mean to everyone.
  • Don’t be evasive or try to play word games. You’ll look like a liar.
  • Don’t ask for severance. They’ll claim you quit. If they ask what you want, say you want to work in a place that is free of discrimination/sexual harassment/racial harassment, etc. Don’t quit. If they fire you, contact a lawyer.
  • Don’t demand the harasser be fired. They don’t have to discipline this person in any particular way. Don’t put yourself in a situation where you make them say that they have nowhere to put you in light of your demands.
  •  Don’t yell, be insubordinate, be rude, or act unprofessionally. You’ll just give them a legitimate reason to fire you.
  • Don’t refuse to come back to work. You have to work, or they’ll say you abandoned your position.
  • Don’t forget that HR and the corporate attorney are there to protect your employer, not you. You shouldn’t say or do that could get you disciplined or fired.
  • Don’t give the company your only copy of anything. Make sure you have copies of your notes, evidence, witness lists, etc.
  • Don’t freak out when they start interviewing coworkers. They’re supposed to do that. They have to investigate what you’re saying. That means the harasser will probably find out about your complaint.
  • Don’t get upset if they say they won’t give you a copy of the investigative report or let you know their conclusions. Some employers will, some won’t. If you end up having to sue, EEOC and your lawyer will be able to get the report.
  • Don’t be surprised if they say they conclude there was no discrimination or illegal harassment. Very few HR people or lawyers will admit anything in writing. Even if the official report says it didn’t happen, the harasser might have been warned or disciplined in some way.
Once the interview is done, you need to be patient. If you encounter more discrimination/discriminatory harassment, or if you are retaliated against for complaining, report it in writing to HR.

Most employers take discrimination complaints seriously and try to do the right thing. If you go into your meeting prepared, have your proof and witness lists organized, act professionally, and don’t have unreasonable expectations, this is your best opportunity to get the company to assure you have a workplace free of discrimination and discriminatory harassment.

If your employer doesn’t correct the situation and it continues, or if you are retaliated against by a demotion, termination, cut in pay/hours, or something that affects you in the wallet, it’s time to talk to an employment attorney in your state. The work you did to prepare for your meeting won't have been wasted. You'll be ready for your meeting with the lawyer. Hopefully you'll have enough ammunition to convince the attorney that they can sue your employer's socks off.

39 comments:

  1. This is quite possibly the best advice on thsi topic I've read. I quoted you over BNET

    Boy, would things change if everyone followed your advice.

    ReplyDelete
  2. I'm so glad you found it helpful! I appreciate your quoting me. Maybe, if we spread the word about people's rights and responsibilities, more people will preserve their right to sue if the employer doesn't address the situation promptly and effectively.

    ReplyDelete
    Replies
    1. My supervisor told me too go home in the morning and his excuse was I wasn't working this was done 41 mins from the morning start and he grabbed the broom off my hand and yelled at me too go home I stood my ground he and I have had problems I never been written up by him he just ordered me home and he threaten me if I didn't he knock me out I called the cops on him he told the police I wasn't working and him telling me to go home without a witness or hr around and my boss the owner said there where no threats made even though he was there telling the police officer when he arrived tell me I don't have a case..lol

      Delete
    2. The owner of the company wasn't there when I had the occurrence with my employer and yet the police never looked at the video surveillance too justify his lies on the police report on what happen the owner proved retaliation when I ask for the video too be looked at I got a big fat no too do assessment of what happen in workplace violence and the police officer not looking at the video tells you he was smooth talked and fooled

      Delete
  3. I have seen a lot of information on the web for employers who must deal with disgruntled employees and how to avoid litigation. Likewise, there is plenty of advice on how to document discrimination and retaliation. I have not found anything about how an employer should proceed if it learns, beyond any doubt, that a good employee was fired for an illegal reason.
    Once a lawsuit starts, is a fair settlement beyond reach? Are apologies and reinstatement routinely forbidden by the insurance company covering the employer's legal expenses?

    ReplyDelete
  4. There's absolutely nothing that stops an employer from offering reinstatement with back pay and an apology to settle. I almost never see this happen. I think lots more cases could settle with an apology but employers don't like to do it.

    If the employee wins, the court can order reinstatement and back pay, but can't order an apology. It's one of those things an employee can only get in a settlement.

    The sad truth is that employers, or maybe their lawyers, never like to admit they were wrong. They dig in their heels and stick with their position even if they learn they made a mistake.

    Why? I don't know. It's one of those things I've wondered about for 25 years, since I got into this area of practice.

    ReplyDelete
    Replies
    1. I was being harassed in my work... and one of my co workers (our expediter) told me that the HR said that if we will not settle things with the harasser both of us will get fired I know its not fair but can the employer do does things???

      Delete
    2. Hi LJN. It probably depends. If you reported illegal harassment then they can't fire you for reporting it, but if it's general harassment then they can fire you both if you don't work it out because general harassment isn't illegal. You might want to talk to an employment lawyer in your state about this.

      Delete
    3. It is illegal for my manager and HR to force me to meet with them? My manager asked to speak with me with HR present, I declined because I had a prior incident with them that made me feel uncomfortable. My manager stated that if I didn't meet with him and HR then I had to leave work early. I told him that without proper representation I would not speak because I didn't want to incriminate myself. He said in quote "You are just an employee you dont have that right." Now I feel more uncomfortable going to work.

      Delete
    4. I hope you have legal representation. He is intimidating you. If it's after you having reported, it's called retaliation.

      Keep records of all instances of retaliation. Have a lawyer write a letter on what they are doing. There's no time limit as to reporting retaliation to the EEOC. The EEOC will sue for you; you won't have to deal with the expense of the legal action.

      Employers have insurance that covers your case. They don't pay from their own pocket. The insurance does. Be sure that you don't get into "pity" for the employer.

      Delete
    5. hello I read your blog I just need too ask you a question my supervisor ordered me home I stood my ground and he insulted me and threaten too knock me out if I didn't leave work I called the police the owner of the company came into the picture told the police that there were no threats made to the office and he just blaintly lied he wasn't even there to say no threats where made I have that on a police report and we have cameras showing he wasn't there at the moment it happen when the police came the owner told me too take the day off and come tomorrow back too work in one week exactly I quited cause the owner was upset that I called the police and wanted to disguised my dismissal he was yelling at me and I kept saying aren't we going to resolve this matter and he started yelling its getting resolved now.. and that is when I quited he didn't wana have it written down what happen he was on the supervisr side tell me is it discrimination aswell my supervisor is racist attitude and im white European

      Delete
  5. As a landlord, I've avoided most litigation through open communication with tenants and compromise. As a parent, I got a fair settlement for my injured child by not being greedy on his behalf. I never hired lawyers and never regretted it.
    As a an employee with several years of stellar reviews and no disciplinary action, I reported a dangerous practice to my medical director and was abruptly terminated. The CEO refused to meet with me, so I sued. Later, when I was able to prove that the reasons for my termination were false, the CEO said they weren't allowed to re-hire me because of the lawsuit. Her claim is that the insurance company will drop their coverage if I come back. Does that sound plausible to you?
    I won a defamation suit against the VP and now there is going to be a second jury trial on the whistleblowing charges. A lot of previously suppressed evidence will be made public. This seems like such a train wreck, and their stubborness just doesn't make sense. I've come to accept that I won't get an apology, but after four years, I still don't get it.

    ReplyDelete
    Replies
    1. Wow! Whoop for you! You've gotten lot of victories!

      Delete
  6. Seems unlikely to me, but these are all things you should be discussing with your attorney. Ultimately the court can probably order reinstatement.

    ReplyDelete
  7. This comment has been removed by a blog administrator.

    ReplyDelete
  8. Hello. My name is Tim. I work a major drink company in the US and I was in an accident at work last year (March 2011) and injured my shoulder. 2 surgeries later I have a permanent restriction of no overhead work now due to my disabled shoulder; it will never be the same. Now I sit around the office, like a secretary, and cut shelf tags (They like to call it “arts and crafts time with Mrs. Timmy). I have been experiencing harassment about this issue since around (April 2011). People call me a “bitch”, Mrs. Timmy, cripple, and other embarrassing names DAILY. This takes place in front of everyone, including supervisors, who also take part in it. In July we had sexual harassment training, but nothing was touched on about other harassment, for example the disabled. While HR was in town for the meeting, someone called me Mrs. Timmy, and HR laughed and said after the meeting they couldn’t call me that anymore. But it still happened. Recently, they requested I go back out on a truck and carry a ladder with me to be able to step up and reach cases without reaching overhead. This seems like a liability and hazard given the fact if it happens to be raining or snowing. On top of that, people are having a field day with me having to carry around a ladder. They say they are going to get me a “retard” helmet. And they made a poster with a handicap kid wearing a helmet, licking a window. It also had a picture of Cartman from South Park on it when he pretended to be retarded, wearing a helmet and a stupid face, with writing saying durrrrr. And finally it has a short bus on it, with our logo, turned upside down because I crashed the truck in my accident. It also had a banner on it saying DON’T FALL OFF YOUR LADDER. This was printed out and placed in all of the employees mailboxes, and hung on the wall. In addition, my direct supervisor printed out a sheet of helmets, he google searched for “helmets for disabled children”, the main one a pink helmet with a princess on it, but also a fire helmet, and other. He told me I could pick out my own. I informed HR I was still getting harassed, so they called the dm’s (supervisors) who took down the papers, but also had an extreme attitude and disgust towards me, and also barely spoke to me. No one was disciplined, and to my knowledge none of non-management employees were even spoken to. This hostile environment at work has changed me. My wife notices it, my family and friends do as well. I am depressed, scared to go to work, dealing with anxiety, timid, and feel useless. It’s bad enough I have to change my life to accommodate this disability at home, not being able to do a lot of things a husband should do, but I have had to deal with this for over a year. I can’t take it anymore, and decided to reach out. If it continues, should I contact HR again, even those this was the second time I have, and it doesn’t seem to be helping? I TRY to save face and laugh it off while they do this, but I have been serious and have told them it’s not my fault. I have been prescribed Xanex for a while now because I told the doc I was anxious and couldn’t sleep. I didn’t tell him it was because I was terrified to go to work. Any advice is tremendously appreciated. I am a 26yo male if this helps.

    ReplyDelete
    Replies
    1. I am indignant at what is happening to you. Get the complaints as described above on writing in the company's grievance form. and, get a lawyer. You have all kinds of proof there. Take pictures of the things they do, as they happen. Best to you! You can win this case, and find another job!

      Delete
  9. Hi twr. It sounds like it might be time to talk to an employment lawyer in your state. You might have to take the next step (probably EEOC) if HR won't do anything.

    ReplyDelete
  10. My wife works for a large company as a CSR, and she has just gotten suspended for reporting that another employee has been doing illegal drugs. The company stated that she was being suspened because they were investigating to see if this was retaliation on her part due to her attendance issues she has had due to injuries sustained from a vehicle accident 2 years ago and she had to miss work due to a back injury. She has had her doctor write a statement that says she has these issues and might need to miss work due to this. The HR department denied the statement and has now been harrasing her when she is in pain. The employee who she made the statement about is not a supervisor nor has any authority at the company and is also a CSR. Is the supension on the employers part considered retalition as their reasons behind the suspension are unfounded.

    ReplyDelete
    Replies
    1. Hi Mike. It sounds like she might have ADA or FMLA claims. Unfortunately, reporting a coworker's illegal activity is usually not protected whistleblowing. You might check with an employment lawyer in your state for some advice.

      Delete
  11. if i have a discriminate issue with my employer, do i first need to report it to my employer and union to exhaust administrative remedies before filing with EEOC?

    ReplyDelete
  12. I've been a victim of retaliation,threatened violently by coworkers,labeled,made fun of by supervisors then fired for filling with eeoc.I have all the proof in writting as well as dates and times of action. Almost every employee refuted my claim to protect their job ,some even got raises after denying my claims. Now my eeoc investagator says he has made a mistake on my case and now he has to give the respondent more time to respond.we have already opened this case and found reasonable evidence ,now eeoc worker has to start all over from the beginning due to a error he says he made. I do not see the error and I have not received any info. On this error . Wat is ur take

    ReplyDelete
    Replies
    1. Sorry for what you are going through. I believe it will be wise to hire an employment lawyer, as well.

      Delete
  13. Hello i was wrongfully terminated with wild accusations by new management on his first day of working. The assistant manager had said i was getting a verbal warning that the gm had agreed. The next day on my day off i was let go. It took Hr 2 weeks to even answer my calls or emails very rudely. Finally once they contacted me they said they were conducting an investigation this was a month ago. I have yet to hear from them agian leaving all sorts of messages not bombarding but at least one weekly. Please help can eeoc do anything i understand they only seek discriminating cases but i do not know who else to turn too

    ReplyDelete
    Replies
    1. Hi Cindy. An answer to your question will be up on October 11.

      Delete
  14. This comment has been removed by the author.

    ReplyDelete
  15. I need some help here,i work for a security company and have been in the same building for 10 years, a position opened up and i applied for it soon after the director of security said they r looking into it and a few days later a guy i trained who is younfer than i am got hired. After that another position became available i applied for it and was told they r looking into in and almost everyday the director came to me n said they r looking into it also hr never got my resume now mind u this is the second time he told me hr never got my resume. I never recieved an email or call for this position, they kept saying.hr dropped the ball on this i was told twice to apply to the positoon n.both times hr messed up. There r also 2 other guys in the same race class as i am that got fired or move for complaining and one of the guys filed a dis act against the director. Now they hired someone for the position i applied for that have no experience n i have to.train him. Is.there something i can do?

    ReplyDelete
    Replies
    1. Hi Roy. An answer to your question will be up on October 18.

      Delete
  16. This comment has been removed by the author.

    ReplyDelete
  17. Thanks for sharing! This page was very informative and I enjoyed it. HR company Boston MA

    ReplyDelete
  18. I recently was reprimanded as well as demoted from my position following accusations from another colleague. I was told they (HR) have the proof. This was over text messages which we have been communicating through for work and the benefit of each other's job. When I addressed an issue with him and his team getting to work more OT than mine, he replied with a blasphemous filled text that was certainly out of character. His rant went on to say I need to talk about this issue with my supervisor and leave him out of it. He continues with how he's not worried about the OT, all he is worried about is doing his job. He assures me he will be addressing this with HR and then he finishes with we are done texting. After analyzing the text trying to make sense of his hostility, it finally hit me that his text was complete set-up to make him look good and undermine my 12yr excellent track record. HR's stance was that I was harassing him by bringing it into the workplace when in fact the text was not during his or my shift and was only shared with my supervisor in which he took it to the next level because of the tone that he had in his text message. However, my colleague had reached the HR department and initiated an investigation that obviously favored his accusations. How do I get HR to show proof of anything or is it possible to make them see my side of this? How much should I fight before giving up? I don't want to jeopardize my job but my side of the story was not seen by HR but yet determined to be against me.....HELP!

    ReplyDelete
  19. I need your help? Can you please tell me what I should do? I got fired unfairly at a company. I got 18-month contract from the company A in order to work at its client company B. On the last day, a guy from the company A told me their client wants to terminate my contract. Reason: "some emails are sent to my supervisor. In emails, there are only praises of me. My name was associated with. My supervisor sent to HR, and HR called those people, and they refused to send those emails." I did not do it or I was not aware of any emails.

    When I go home on the day that I got fired, I got a report from the Facebook. It showed someone hacked my account and stalked me by using that company's IP address. Later, I received a text message of attachments. The attachments showed the name of the girl at work and that she is the one behind the scene because she is jealous.

    I email my supervisor at Company B about this, but they ignore my case.

    Please tell me what I should do?

    ReplyDelete
  20. I have been called into the office today without my supervisor.

    Background is that I currently have a small child that I nurse. I have to pump three to four times per day while at work. I have been working late to make up the time that I am missing through the work day because of pumping, according to federal and state laws this is totally legal. My management knows this.

    The company that I work for is awesome, I have been here forever and love my job. The current boss that we have has been firing people left and right though. They find little things and nag them until they find other jobs or get fired.

    I got called down today to say that I have been coming into work late, abusing my breaks and staying too long at lunchs. This was done by the middle manager, not my direct supervisor and not by our department head. I was told that I had to fix the problem, an example was check in at the office when I get to work, check in when I go to the bathroom and when I get back, check in before break and when it was over and so on.

    I have a meeting scheduled with my direct supervisor and this manager that I met with today to talk about the solutions next Monday.

    I know my rights as a nursing mother. How can I go into this meeting prepared and ready to stand my ground. I really wanted to record this conversaton because this manager and my direct supervisor have both been know for lying and getting people fired and then the supervisor just goes along with it instead of standing up for the employees.

    I don't want to be on a losing end of this. I have documented everything that came out of the first meeting with this manager and am going to do the same thing next Monday. I just wanted to make sure that my bases are covered and I want to make sure that I don't forget anything and the words don't get twisted. Is this a good idea? Should I put the recorder out for them to see? Should I record and only devulge if needed? I live in VA so only one consent applies in the situation.

    Thanks in advance!

    ReplyDelete
  21. This comment has been removed by the author.

    ReplyDelete
  22. Thank you for this article, it is very informative. I was wondering what the difference is when a contract employer for a company. I work minimal hours weekly at a private company. I experienced verbal sexual harassment by a coworker. I reported it to the director and was fired via email a few days later. Then a few hours later I was re-hired. They realized I could sue them apparently. They are now limiting my freedom to move around the company without someone with me. They are not firing the offender. I don't know if I have any claims against them as a contract worker (1099 mis.) but am infuriated by how unprofessionally I was treated. I asked for a copy of their sexual harassment policy and was told I am not entitled to it since just an outside vendor. I currently am back working my shifts, although they clearly do not want me there and only un-fired me to prevent a lawsuit.

    ReplyDelete
  23. Hey donna I have a friend in a messy situation and could really use your help. If she was let go after one week of being there, and they said she wasnt learning quick enough. Which there is nothing wrong with that. But the next day they get to texting each other and the employer started getting personal and stating that she needs to go get her medication and head checked out. She is taking medication but would have never mentioned that to them if she knew it would be thrown back in her face and belittle her. Also started getting into saying that her daddy cant keep a job for her. Please help with what she can do. The business also operates illegally in many different way.

    ReplyDelete
  24. What if HR wants to speak with me on the phone . How can I assure that this is not a set up as they did to me in the store for harassment. I also have no representation to any meetings so far since the harassment. I was then suspended after reporting the violation and the illegal behavior. Now HR director after speaking with my HR manager of my region wants to get involve .

    ReplyDelete
  25. Hi,

    I have an active claim against my past employer that the EEOC is presently investigating. This has been going on for almost 4 years. They are just now calling witnesses and reading through documents. Is there any reason that you know of that the EEOC would not be sending me and the company to mediation? It seems odd to be interviewing witnesses about harassment that took place over four years ago. Advice?

    Thanks!

    ReplyDelete
  26. I have an active claim that the EEOC is not investigating against my former employer. The claim was timely field four years ago. Why would the EEOC never recommend mediation to me and the employer? They are just now examining my claim, the employer's answer and my rebuttal and asking me for witnesses names and phone numbers. It seems odd to be calling people about harassment that took place over 4 years ago. Any suggestions?

    ReplyDelete