Well- the title is certainly catchy, isn’t it? But, the mistake nearly every employee makes is nothing to joke about.
Discrimination in the workplace, no matter how severe or improper, may wind up getting dismissed in a court of law for one simple and basic reason – – the employee never brought the conduct to the attention of the HR manager or another supervisor, to give the company a chance to remedy the situation. This is called the Faragher Defense and it is one of the first things I ask potential clients when I interview them: Did you complain to HR?
First, 99.9 percent of all Employee Handbooks require you to report any improper conduct.
You signed that you understood this policy when you were given the handbook (that you never bothered to read.
Don’t worry, most people don’t read the handbook. You are not alone)
Second, if the employer has no reason to know that Joe Laborer is trying to touch you, or harassing you, or discriminating against you, how can we possibly ask a jury to find them responsible for the conduct at issue?
So, if I have a potential client that has not complained to HR about the conduct, I tell them to send an email to HR detailing what is happening.
If the company has any idea what they are doing (and admittedly, some do not), they will investigate the matter promptly and report their findings to you.
Once you have complained, and the harassment or other improper conduct continues, now you have created a record to defeat the employer’s Faragher Defense.
I often hear from clients that they are afraid to complain or raise the issue because they are going to be fired or retaliated against. I get it.
But, you should know that it is illegal to retaliate against an employee for complaining about improper discrimination or harassment. So, in reality, complaining to HR gives you more job protection than you ordinarily would have because Florida is an “at-will” state.
This means you could be fired for any reason, so long as it is not an illegal one.
Bottom Line- If you feel you are being discriminated against or harassed, protect yourself by reporting what is happening to HR.
If you don’t, you may have to suffer through discrimination or harassment, and have no remedy at the end of the day to fix it. If you want us to evaluate your situation at no cost, please feel free to contact us our attorneys to review your situation.