Employers Are Not Permitted to Retaliate Against Witnesses, But Sometimes They Do.
Both State and Federal law prohibit employers from retaliating against employees who report instances of unlawful discrimination and harassment. For example, I was retained by an individual who feared she would lose her job after standing up for one of her co-workers. Her co-worker was Indian. My client witnessed their manager making fun of her co-worker, including mocking her accent, making fun of her traditional wardrobe, and making rude and untrue remarks about her religion.
Her co-worker was subjected to this harassment on a daily basis and asked my client to accompany her to the Human Resources Department to lodge a complaint. While she was there, my client provided a written witness statement. Although HR told my client they would attempt to keep the information confidential, she soon noticed that her manager was picking on her. He scrutinized every email and criticized her for things that had never been an issue before. When she had her next performance review, her manager gave her the lowest marks she had ever received. Her Indian co-worker accepted a transfer to a different department to escape the situation, but now my client feared she was going to pay for doing the right thing.
She asked me what she could do to make the harassment stop and save her job. I advised her to do the following:
- Keep a log of each instance of harassment, including the date, and witness names;
Gather as much documentation as she could find to support the argument that she is a good employee, including past performance reviews and commendation letters. Keep the documentation in a file outside the office;
Ask her co-worker for a copy of her original complaint as well as her witness statement;
Lodge a new complaint of retaliation against her manager, including details of her co-worker’s original complaint and examples of the manager’s retaliatory actions against her. Email the complaint to the same HR representative who handled the original complaint as well as that person’s superior and KEEP A COPY.
While none of this advice guaranteed that the harassment would stop, it was designed to put the employer on notice that they had an ongoing problem with this manager. It was also designed to protect my client’s legal interests. If the employer didn’t take appropriate action, the company would be at risk of a civil rights charge and/or a law suit filed by my client.
In this case, the employer did the right thing by addressing the harassment and disciplining the manager. My client is still employed, for now.
I sincerely hope that this post will not discourage readers from doing the right thing. Too often, witnesses are afraid to give a statement or participate in an investigation because of retaliation. Unfortunately, this fear protects the harasser and does nothing to solve the problem. The important thing to remember is: witnesses who provide truthful statements about unlawful discrimination and harassment are protected by State and Federal law. Know your rights and keep good records.
For more information about your legal rights and how to file a civil rights charge go to the Ohio Civil Rights web page: