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Beware of Verbal Discrimination Complaints

FLSA: Supreme Court Rules Oral Complaints Valid

An employee, Aziz, continues to complain about off color jokes during his staff meetings. He feels that his colleagues poke undue fun at his religious head cover, but at no time puts his concerns in writing. However, week after week, he calmly but directly looks his boss in the eye and reminds him that the jokes are offensive and obviously a show of disrespect for him and his religion. Aziz is clear with the boss that he feels uncomfortable in his job given the jokes.

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The Wrong Response

At the end of the quarter, Aziz’s boss meets with HR to request transfer paper work for Aziz. He mentions that Aziz has been complaining and would be happier on another project.

The boss believes Aziz is more concerned about his religion than staying on a prestigious project. While discussing the move with HR, the boss also confirms that Aziz’s move within the company will result in elimination of overtime and a change in Aziz’s hours. It appears that the transfer may be a good solution to get Aziz to a more comfortable environment.

Aziz’s boss is pleased with the idea of transferring Aziz to a different project within the department. The proposed transfer for Aziz will lead to a 7 percent cut in his salary, along with new hours that require him to seek alternative care for his aging father. Is the organization on the hook if the boss and HR allow the transfer to go through? Yes.

Even if Human Resources do not step in, Aziz has still gone on the record verbally about how he is treated because of his religion. The boss has set up the organization for a retaliation charge from Aziz. Therefore, the organization must step in to stop the potential costly chain of events.

FLSA Anti-Retaliation Provision

On March 22, 2011, the Supreme Court ruled that written and oral complaints are valid under the Anti- Retaliation Provision of the Fair Labor Standards Act. While the written complaint is clear, the oral complaint must also be “sufficiently” clear and detailed for an employer to understand it.

Therefore, the content of the complaint and the context of the complaint, even oral complaints, must be clear enough to the receiving party; and such oral complaints are protected activities under Title VII. In turn, oral complaints are actionable and Human Resources now must engage in the “he said…she said” dynamic, which can play out in an oral complaint. The complainant says he complained; the supervisor might claim no complaint was rendered.

Scaffolding of a Retaliation Case

In 2010, the EEOC had a record 99,922 complaints and recovered $404 million for victims through mediation and other legal resources. In 2009, 36 percent of all complaints were based on retaliation. Despite the simple steps to avoid retaliation, many employers unwittingly walk into this charge, just like Aziz’s boss. The scaffolding of a retaliation case is as basic as 1-2-3:

1. An employee complains about their civil rights under Title VII; now oral complaints are valid.

2. Something bad happens to the employee status (demotion, transfer, layoff, termination).

3. With the adverse employment action, there is now a potential for a retaliation charge.

How to Avoid a Retaliation Case

With this recent update, retaliation charges will continue to climb, even though retaliation is often one of the easier charges to validate. In Aziz’s case, he has been complaining, even if only verbally. His boss also was initiating an employment status change, which would have resulted in a tangible loss of overtime and a transfer to a less desirable project. But how can HR prevent a complaint of retaliation when there is no paper trail?

First - Human Resources and/or the EEO/Equity Director of the organization should conduct or coordinate quarterly trainings for the staff. Managers should be trained on how to recognize a Title VII complaint, and learn not to take it personally to avoid a retaliatory action. While it might be human nature for any boss/manager to avoid or distance themselves from a complaining staff member, such human behavior can result in a retaliation charge. Once a complaint is launched, even if it is found to be baseless, the complaint itself invokes Title VII protection for the staff member who complained.

Second - Many organizations have a progressive discipline policy with a verbal warning, written warning and then a written warning with a promise of discipline. The verbal warning is often documented in writing. Use this same model for oral Title VII complaints. When an employee verbally complains about his or her treatment based on race, gender, age, religion, color or ethnic background etc. Take it seriously and ask the employee to document the concern in writing. Writing often clarifies the issue for all parties. However, whether in writing or not, the organization is still responsible.

Third - Update all policy manuals to reflect these changes in the Title VII policy. Insure that all staff and managers stay up to date on dynamic legislative changes. As the HR staff revises the policies, consider a policy change that recommends HR oversight of employee status changes, especially changes, which result in termination. All too often, HR is only called to the table once a manager has decided to fire, demote or transfer a staff member. Instead, HR should be empowered to be at the table to PROTECT the organization from itself when it is about to make these costly and litigious mistakes.

A Peaceful Conclusion

In this case, Aziz’s employment record showed that he was the most productive member of his team. Aziz was not transferred. In fact, Aziz didn’t even learn that a transfer was considered. Instead, HR stopped the transfer and engaged the whole department in a series of diversity and EEO rules training with particular education for managers and supervisors within the organization.

Lastly, HR spoke with the boss directly and explained the Title VII rules. If Aziz filed retaliation charges, it not only would reflect poorly on the organization but Aziz’s manager could be personally liable as well. While the transition to a more supportive environment took a few months, it was far less painful and less costly than receiving a letter from the EEOC or Aziz’s attorney because Aziz felt violated after complaining about his civil rights.

Regards,

Leah Hollis, Ed.D.
President, Patricia Berkly LLC

Dr. Leah Hollis is President of Patricia Berkly LLC, a diversity training and consulting group in greater Philadelphia. Dr. Hollis is a noted educator, researcher, and lecturer. She has taught at Northeastern University, the New Jersey Institute of Technology, and Rutgers University. Dr. Hollis received her Doctorate of Education in Administration, Training and Policy Studies from Boston University. She continued her professional training at Harvard University through the Graduate School of Education, Higher Education Management Development Program. She also earned certification in Project Management and Executive Leadership at Stanford University and Cornell University, respectively. Her newest book is titled “Unequal Opportunity

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