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.

Friday, June 24, 2011

One Remark Does Not Make A Discrimination Lawsuit

 I get people who come to me at least once a week who had someone make a comment or ask them a question and they think they’ve won the lottery and they can retire. They haven’t, and they can’t. They seem shocked, even angry when I tell them this. Like I make up the rules. I didn’t. Do you really think someone who represents employees for a living would think up such a thing? My rule would be that one comment means the employee and their lawyer could retire. That’s probably why I don’t get to make the rules.

One comment will almost never, standing alone, make a discrimination lawsuit.

Even an extreme statement, such as a racial epithet, disgusting sexual joke, pornographic email, or illegal interview question won’t be enough to go running to the courthouse. There has to be more. 

Adverse action. Termination, demotion, suspension without pay, failure to hire, anything that affects you in the wallet, might be enough to show discrimination along with that one remark. For instance, if your interviewer asks you whether you have any disabilities and then hires someone without a disability, you might have a case for disability discrimination. If your boss makes a comment about women with kids needing to stay home, then fires you as soon as he finds out you’re pregnant, you might have a pregnancy discrimination case. This will only make a difference if the person making the remark is a supervisor who actually participates in the decision to take adverse action against you. 

Severe or pervasive. Anything short of an adverse action is considered harassment. For harassment to be something you can sue for, it has to be either so severe or so pervasive that it alters the terms and conditions of your employment. That means there would have to be many, many remarks, jokes, comments or differing treatment to rise to the level of illegal harassment. Remarks by coworkers will affect the terms and conditions of your employment less than remarks by your boss. 

Evidence. That one remark is still evidence. If it related to your protected status, such as a racial epithet, then it’s direct evidence of discriminatory animus. That’s a fancy way to say it’s really good evidence that the person saying it didn’t like you because of your race, age, sex, disability, etc. If they then do something that affects you in the wallet, or if they continue making these types of remarks, then you might have enough for a case down the road. 

Report it. You should report remarks that directly relate to race, national origin, color, religion, age, sex, disability, genetic information or other protected status under the company harassment policy. Put it in writing. 

Stray remarks. The courts call the rule that applies to all this the “stray remarks doctrine.” Frankly, they let employers get away with a whole lot. Some of the cases that get dismissed on this basis are pretty severe. But hey, don’t blame the messenger. It’s not my rule. Tell your member of Congress if you think the rule is wrong.

Some people tell me they were so traumatized by one remark that they can never go back to work there. Okay. I mean, really? I guess if you have severe depression going into the situation I might buy that. But c’mon. Get a grip. People say awful things sometimes. You can’t let one remark ruin your life. If you turn tail and run, you’re giving the bigot exactly what they want.

If you really have to quit to save your sanity or health, by all means, quit. But don’t blame me when that means you don’t have a case for discrimination.

Donna’s tips: 
a.   While one remark isn’t going to get you a big, fat check, it’s evidence. Write it down with the date and any witnesses. If this person keeps it up, keep writing it down.

b.   If you do decide to report comments, don’t go run to HR every day. Document any remarks and take them to HR after you have a few. While you might report the first remark, if they don’t take action to stop it, then don’t make yourself a nuisance. Do report any acceleration of the behavior or any retaliation.

c.  You have to report harassment before you can even go to EEOC, and you have to file with EEOC before you can sue. Don’t skip the steps or you’ll have your case tossed. 

d.   Bullying isn’t illegal. If the comments don’t relate to your race, age, sex, national origin, etc. then don’t report them unless you’re being singled out for differing treatment compared to others of a different race, age, sex, national origin, etc. 

e.   Certainly don’t quit, especially after one remark. The courts will almost never let you sue if you do.


  1. he grins, sounds like you are telling people that they shouldn't be coming to you just because they are too lazy to work and trying to use their protected status as an excuse.

    wouldn't the reason of the necessary additional actions of the employer be for the purpose of establishing intent or in the case of discrimination, attitude?

  2. Hi Griper. I'd never tell people not to come to me! :)

    However, I do think people need to be realistic about what the law can and cannot do for them. They have to do their part to build the case. One comment can be evidence, but they have to be patient. It could be they're working for a great company that doesn't discriminate, or maybe they'll have a case down the road if they jump through the right legal hoops.

    Employees have rights, but they also have responsibilities under the law.

  3. really good evidence that the person saying it didn’t like you because of your race, age, sex, disability, etc.

    And sometimes people don't like you just because you're (not you, Donna - the generic "you") a jerk.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.