Things are not going well for you at work. Almost every day, you face various forms of unprofessional and harassing conduct from your co-workers. Based on the comments you have heard and the differences in treatment between you and other employees, you think you might be the victim of discrimination based on your age, sex, or race.
So what do you do? Should you submit a formal complaint through the appropriate channels at work? What if that does not improve things or even makes things worse? The last thing you want to do is endure backlash, which might make the discrimination more severe or get you fired.
The answer is that you should report the discrimination, even if the reporting makes things worse. The recent case, Fox v. Leland Volunteer Fire/Rescue Department, serves as a clear example of why this is true.
Fox v. Leland Volunteer Fire/Rescue Department
In 2009, Sara Fox became the first female career lieutenant at the Leland Volunteer Fire and Rescue Department. Fox started out as a career firefighter and paramedic in 2008 and received a promotion to lieutenant after a competitive selection process.
Unfortunately, soon after becoming a lieutenant, Fox began to experience animosity from her co-workers, especially from her subordinates. Examples of their behavior included the following:
- agreeing to have dinner purchased and prepared by Fox, only to back out at the last minute, on multiple occasions;
- leaving the fire station without informing Fox;
- ignoring Fox when she tried to set up training events;
- bypassing Fox on certain issues and discussing them with Fox’s superiors instead of discussing them directly with Fox; and
- refusing to complete tasks assigned by Fox.
The negative treatment did not just come from her subordinates; her superiors also engaged in this behavior. Fox’s boss, Chief John Grimes, was the Chief of Leland Fire and treated Fox differently than other lieutenants who happened to be male. The different treatment included the following:
- failing to provide any training to help Fox serve as a lieutenant;
- withholding information from Fox that would allow her to access the computer intended for use by lieutenants, despite repeated requests from Fox; and
- refusing to provide assistance in obtaining certain certifications.
Fox believed all of this negative treatment was because she was a woman. On several occasions, Fox heard comments from co-workers about how she became a lieutenant because she was female.
In June 2010, Fox received a negative performance evaluation. The evaluation noted that Fox had missed several meetings, communicated poorly with her shift co-workers, failed to maintain oxygen tanks at necessary levels, and completed none of the four goals set for her in the 2009 performance evaluation. Fox was unable to address these negative reviews with Chief Grimes.
On December 1, 2010, Fox met with Chief Grimes and assistant chief Ronald Hayes. At this meeting, Chief Grimes noted that members of Fox’s shift were complaining to him and were basically “throwing [Fox] under the bus.”
Also during this meeting, Chief Grimes gave Fox advice on how to be a more effective leader, acknowledged that Fox “must feel like [she] was in a hostile working environment,” and assured her that she was not about to be fired.
In the several weeks following the December 1 meeting with Chief Grimes and Hayes, Fox submitted three formal complaints to Chief Grimes. Each of Fox’s complaints alleged that she was experiencing discrimination based on her status as a woman. None of these complaints were answered, investigated, or addressed in any way.
Fox then talked to an attorney about filing a complaint with the Equal Employment Opportunity Commission (EEOC). On January 2, 2011, Fox confided this fact in Kelly Gore, a female co-worker who had been referred to as a “hooker” by another male co-worker. According to Fox, Chief Grimes heard this comment but did nothing to correct it.
Gore promptly informed Chief Grimes that Fox had consulted with an attorney and was considering filing a complaint with the EEOC. On January 5, 2011, Fox was fired.
The official reason for Fox’s firing was because she was a poor performer, was insubordinate, and refused to accept improvement suggestions from management. However, at no time was Fox ever disciplined before being fired.
Fox eventually sued the fire department and Chief Grimes, alleging that she endured a hostile work environment due to her sex and that she was retaliated against for her complaints of sex discrimination. The fire department and Chief Grimes filed a motion for summary judgment, asking the trial court to dismiss all of Fox’s claims.
The District Court (the trial court) agreed to dismiss all of Fox’s claims and granted the fire department and Chief Grimes’s motion for summary judgment. On appeal, the Court of Appeals for the Fourth Circuit partially reversed, agreeing that all of Fox’s discrimination claims should be thrown out but that one of Fox’s retaliation causes of action should survive.
Why wasn’t Fox’s lawsuit totally defeated? It was because she reported the sex discrimination. The next section will go into further detail about how Fox’s case survived because she reported the discrimination.
The Importance of Reporting
There are two main reasons why reporting discriminatory conduct is very important, especially if subsequent litigation will take place. One reason can be thought of as the legal reason, and the other reason can be thought of as the logical reason.
The legal reason why reporting discriminatory conduct is important is because courts hate having to decide disagreements that could be resolved among the litigating parties on their own. Courts do not want to hear that the individuals who could have stopped the discrimination did not because they did not know it was occurring and the victim of the discrimination did nothing to make those individuals aware of it.
This sentiment is reflected in the law. For example, courts have ruled that an employer cannot be held liable for sex discrimination if it did not know about it and therefore had no opportunity to stop it. This requirement is not absolute, such as when the discrimination is so bad that the employer should have been aware of it.
However, an employee suffering from sex discrimination should not decide against reporting discriminatory behavior with the hopes that a court will decide reporting was not necessary. When the victim of discrimination chooses not to report it, the victim risks losing legal rights, such as a discrimination lawsuit against his or her employer, just like how Kimberly McKinnish lost her case discussed in a previous post titled “Do I Have to Report Harassment to My Employer?”
The reporting requirement is made even more important when an employee realizes how difficult it is to prove sex discrimination, especially based on a hostile work environment theory. We will address this difficulty later in this blog post.
Reporting the discriminatory conduct provides the employee the best opportunity for having the problem fixed. And if the problem cannot be fixed by reporting it, the fact that the employee filed a complaint improves his or her chances of winning a potential discrimination lawsuit in the future. We can look at a hypothetical scenario to explain why it would make sense to report discrimination, even if the law did not require it.
Let’s say Jane has to endure derogatory comments from her boss. These comments revolve around the fact that Jane is a woman. Besides the comments, Jane’s boss takes deliberate steps to keep Jane from taking on the more profitable assignments and clients. This, in turn, prevents Jane from getting promoted. On more than one occasion, Jane’s boss has told Jane that he does not think she deserves to be promoted, simply because she is a woman.
Except for Jane’s boss creating a hostile work environment and preventing Jane from being promoted, Jane likes her job. Jane wants the situation changed but is not sure whether she should report the sex discrimination to human resources, as recommended by her employee handbook. Jane is hesitant to report the discrimination because she thinks her boss will retaliate against her by making her job more difficult or even deciding to fire her.
What should Jane do? Let’s say she decides not to report the discrimination. The advantage of this option is that Jane does not have to risk being retaliated against, “making waves at work,” or having to go through the administrative process of presenting a sex discrimination complaint.
Retaliation is illegal and can take many forms. Within the context of this hypothetical, retaliation is where an employer takes an adverse employment action against an employee in response to that employee complaining about discrimination at work.
The disadvantage of not reporting is that things stay the same at work or that they could possibly get worse. Another big disadvantage is that if Jane decides to sue her employer and/or boss for the sex discrimination she has faced, Jane does not have the best chance of winning.
Now let’s say Jane decides to report the discrimination. We will discuss two potential outcomes.
The first outcome involves an unexpected surprise for Jane. Upon receiving the report, human resources investigates the complaint and takes corrective action to fix the problem. Perhaps Jane’s boss is counseled to remove his discriminatory attitude from the workplace, or maybe he is fired. Either way, work improves for Jane, and she even gets promoted.
The second outcome involves Jane’s worst fears coming true. Jane’s boss retaliates against her by taking away responsibility from her work duties, cutting her pay, and stepping up the derogatory comments to her. After a few weeks, he fires her.
This is an unfortunate result for Jane, but now she has a legitimate lawsuit against her employer and boss, not just for discrimination but also for retaliation.
Adding the retaliation claim is very important as it allows the plaintiff to still have a lawsuit against his or her employer even if the underlying claim, such as discrimination, is thrown out. This is particularly true in sex discrimination cases based on a hostile work environment.
As we observed in Fox’s lawsuit, proving sex discrimination based on a hostile work environment is very difficult. Examining the facts in Fox’s case, common sense seems to indicate that Fox endured a hostile work environment motivated by the fact that she was a woman.
Even the Court of Appeals for the Fourth Circuit acknowledged that Fox’s “subordinates’ conduct was discourteous, insubordinate, and perhaps at times boorish,” yet the Fourth Circuit agreed with the lower court that Fox could not prove she was the victim of sex discrimination.
With sex discrimination cases based on a hostile work environment so difficult to win, it is good to have additional causes of action. If Fox had not complained about the sex discrimination to Chief Grimes, her case would have been dismissed. Instead, she will still get her day in court.
Summing It Up
- Despite the potential backlash an employee may face, the employee should report discrimination to the proper authorities at his or her workplace.
- Reporting is important because the employee will have protected his or her legal rights, such as a future lawsuit claiming discrimination.
- Another added benefit of reporting the discrimination is that the employer may actually be able to fix the problem.
- And, should the employer take action against the employee for reporting the discrimination, the employee will then have an additional cause of action to sue his or her employer for: retaliation.
- Having an additional cause of action is especially beneficial in hostile work environment sex discrimination cases because it allows the plaintiff’s lawsuit to continue even if the underlying discrimination claim is thrown out.