Suing for Harassment or Discrimination
Before you can file a harassment or discrimination lawsuit against your employer, you have to bring your complaint to a state or federal agency.
If you are facing harassment or discrimination at work, there are certain steps you should take to protect your rights. These actions might help you put a stop to the mistreatment and improve your work situation. Even if they don't, however, taking these steps will help you prove your case and preserve your right to sue, if you later decide to file a harassment or discrimination case.
Talk to the Offender
As unpleasant as it may sound, the first thing you should do is confront the person who is mistreating you. From a practical perspective, this is the best way to get the behavior to stop. And, legally speaking, putting the wrongdoer on notice will help you prove some important facts if you later file a lawsuit.
In a harassment case, for example, the employee complaining of harassment must prove that the behavior was unwelcome: in other words, that you did not like it, participate in it willingly, or otherwise find it to be no big deal. This comes up often in sexual harassment cases, in which the offender claims that the victim laughed at his off-color jokes or found his lewd comments flattering. The best way to prove unwelcomeness later is to show that you told the harasser you were offended by the behavior.
If the situation doesn't improve, consider putting your concerns in writing. Keep a copy for yourself.
Make a Complaint Within Your Company
If your conversation doesn't resolve the problem -- or if you decided to skip the conversation altogether (for example, because you feared for your safety) -- the next step is to make an internal complaint. Check the employee handbook or ask your HR department how to file a harassment or discrimination complaint. Then, follow those instructions to the letter. (Again, keep or ask for a copy of the complaint for your files.)
By complaining, you are giving the company an opportunity to investigate and resolve the problem. But you are also preserving your legal rights.
In a harassment case, for example, your ability to hold the company liable (rather than just the individual person who harassed you) hinges on whether the company knew about, and had an opportunity to remedy, the harassment. If you are being harassed by a manager and the end result is a tangible job action against you (such as being fired, demoted, or denied a raise), the company will be liable. However, if you are being harassed by a coworker, or by a manager who doesn't take this type of work-related action against you, the company can claim that it did not know about the harassment. By making an internal complaint, you are changing that situation: The complaint puts the company on notice of the problem and makes it liable for fixing it.
In a discrimination case, making an internal complaint also puts the company on notice of the problem. If the company then fails to take effective action to improve the situation, you might have a stronger argument for punitive damages: damages intended to punish an employer for egregious behavior, which can be the largest part of a damages award in a discrimination lawsuit.
File an Administrative Charge
Before you can bring a discrimination or harassment lawsuit under federal law, you must file an administrative charge with the federal Equal Employment Opportunity Commission (EEOC) or a similar state agency. This is a legal requirement: If you file a lawsuit without first having filed a charge (called "exhausting" your administrative remedies, legally speaking), your lawsuit will be thrown out.
To learn more, read our article, Filing an EEOC Charge of Discrimination.
Many states also require employees to file an administrative complaint with the state's fair employment practices agency before filing a discrimination or harassment lawsuit based on state law.
Once you file a charge, the EEOC or agency will notify your employer. The agency might dismiss your charge, investigate, request that you and your employer try to settle or mediate the dispute, or take other action. Unless the agency decides to file a lawsuit on your behalf (an extraordinarily rare occurrence), it will eventually finish processing your claim and issue you a right to sue letter. Once you receive the letter, you may file a lawsuit.
There are short deadlines for filing an administrative charge and for filing a lawsuit after receiving your right to sue letter. If you aren't already represented by a lawyer, it's a good idea to get some legal help once you reach this stage. A lawyer can assess the strength of your claims, make sure you don't miss any time limits, draft your administrative charge, and help you negotiate with your employer.
Filing a Lawsuit
Once you receive your right to sue letter from the state or federal administrative agency, you may file a lawsuit. Whether, where, and when to file a lawsuit -- and what to include in it -- are all important decisions, for which you will certainly need a lawyer's help.