December 29, 2016
If you are asking this question, you are one of the lucky few that are researching your rights at a time when there is still something you can do to help your employment situation and, if necessary, your future employment discrimination case. By that, I mean most people who have been discriminated against in the workplace contact our office after they have been fired. In that situation, many of our potential clients have failed to properly report the discrimination, and as a result, they may not have a winnable case. Why is that?
Although the answer to this question is somewhat complicated, you need to have a basic understanding of Missouri law in order for the answer to make sense. In Missouri, employees are protected from workplace discrimination under a law called the Missouri Human Rights Act (known as the “MHRA”). The MHRA prohibits employers from discriminating against you based on your race, color, gender, national origin, disability, religion, or age (if you are over 40 years old). The MHRA also prohibits employers from retaliating against you for engaging in protected activities. “Protected activities” include participating in a co-workers complaint of workplace discrimination, complaining about your own discrimination to a supervisor or human resources employee, or filing a charge of discrimination with the Equal Employment Opportunity Commission (known as the “EEOC”) or the Missouri Commission on Human Rights (known as the “MCHR”).
Under the MHRA, if a co-worker (including a supervisor) discriminates against you, you normally cannot sue the company unless the company was aware that you were being discriminated against. The easiest way to prove that the company was aware of the discrimination is by sending management (i.e. somebody higher up than the supervisor discriminating against you) or human resources a letter explaining in detail the discrimination you are experiencing. The second way a company could be put on notice is if the company was aware that the same co-worker had previously been accused of discrimination in the workplace. This could happen if other employees had previously complained about discrimination by the same person. Since you may not know whether the co-worker has done this before to somebody else, don’t rely on this method. Instead, this leads us to the first thing that you should do if you believe you are being discriminated against in the workplace…
PUT THE COMPANY ON NOTICE! As you can probably tell, Missouri’s anti-discrimination laws are extremely complex. As a result, we recommend that, before complaining to the company, you contact our office for a free consultation. We will assist you in crafting an appropriate letter that protects your rights under the MHRA. If, for whatever reason, you cannot contact us and you have a company handbook, you should review it. The handbook may tell you how to properly report discrimination at your particular place of employment. In addition to whatever the handbook tells you to do, you should also send a letter (or email) to as many managers as you know, along with human resources. Your letter should describe in detail the discrimination that you have experienced. Make sure to reference your protected class. For example, if you are being discriminated against based on your race, make sure that is clear in your letter. Specifically identify the co-worker who is discriminating against you. If you believe that you are being retaliated against by a supervisor for protesting his or her discriminatory conduct, including details about the retaliation in your letter as well. Finally, make sure that you inform the company that you are available to be interviewed. If a higher up manager or human resources wants to interview you, you should agree to participate. If you refuse, the company can argue in court that it was never given a proper opportunity to resolve the discrimination prior to the filing of a lawsuit.
One of the other major issues we see with our clients’ cases is a lack of evidence. Although Missouri law does not require you to have direct evidence (i.e. emails, text messages, recordings, etc.) proving that discrimination or retaliation occurred, it can be hard to prove your case if it is merely your word against the company’s. This leads us to the second thing you should do if you believe you are being discriminated against in the workplace…
DOCUMENT, DOCUMENT, DOCUMENT AND RECORD, RECORD, RECORD! In Missouri, it is legal to record any conversation so long as you are a party to the conversation. Take advantage of Missouri’s law! If your co-worker or supervisor is saying discriminatory things or verbally retaliating against you, record it. Similarly, if you send a letter to your company complaining about discrimination or retaliation and the company wants to have a meeting, record the meeting. It is a very bad idea to tell the company you are doing this because, even though it is legal to record the meeting, the company could theoretically terminate you for doing so. Although firing you for recording an interview may not play well with a jury, why take the chance?
In addition to recording any relevant conversations, you also need to make sure you keep any and all relevant documents (including emails and text messages) related to your situation. If a co-worker or supervisor is harassing you by email or text messages, you need those emails and text messages. You can’t trust the company or your co-worker to keep them. In this situation, it is also advisable to respond to any such email or text message informing your co-worker or supervisor that his or her conduct is not acceptable to you. Either forward the emails to a personal email account to print at a later time or print them from your work computer. Although the company can attempt to claim that doing so is a violation of company policy, our experience shows that juries rarely punish an employee for doing so. Nonetheless, like recording conversations, it is best to avoid telling the company you are gathering evidence against it. That said, if you are receiving discriminatory text messages or emails, you need to provide those documents to a higher up manager or, preferably, human resources. Finally, like I said above, documenting your situation includes making sure that all complaints are submitted in writing.
In conclusion, the best thing you can do if you believe you are being discriminated against is to contact our office immediately for a free consultation with one of our employment attorneys. If that won’t work for you, you need to make sure you properly document your complaints and keep as much evidence as possible. Following these simple rules can be the difference in having a great employment case and losing your right to pursue your case at all.
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