Most every plaintiff's lawyer will tell employees that it's vitally important that they document any complaints regarding discrimination/harassment/retaliation to their employer's Human Resources department or officer as soon as possible. The problem is that by the time the case comes to us as attorneys, it's often too late (e.g., the employee has already separated from the company), and the employee either has not documented his or her complaint in writing OR the complaint was too vague to be of any legal value.
First and foremost, ensure that your complaint is in writing. Remember, if it's not in writing, it's like it didn't happen and the employer can always deny that you reported anything.
Second, do not wait to submit your complaint. The sooner you prepare the complaint, the less likely you will forget or mis-remember key facts, and your credibility is less likely to be questioned. (There are also legal deadlines by which you can file a discrimination charge so the longer you wait to complain to your employer, the more likely you might miss these deadlines.)
Here are helpful hints regarding the complaint that should be submitted to HR:
Use specific terms to put your employer on legal notice such as discrimination, harassment & retaliation.
Indicate on what basis you have been discriminated (e.g., protected class such as race or protected activity)
Words like toxic, disrespectful, and unfair are not sufficient.
Be specific with dates, individuals at issue, and comments made/actions taken.
Include all relevant documents such as e-mails, recordings, photos, and communications logs.
Avoid an anonymous complaint.
Ensure that you bcc your personal email & print out a copy for your file.
A sample complaint could look like this:
Dear [Human Resources Director],
I hold the position of [job title] at [name of employer]. I am writing to complain regarding [discrimination / harassment / retaliation] that [I / name of co-workers] have been subjected to based on [protected classification (e.g., race, sex, religion, gender identity, age, etc.) / protected activity]. I request that you investigate my complaint and take necessary action to address and stop the behavior at issue. The person who is engaging in the harassment / discrimination /retaliation is [name of employee, title, relation to you]. The following are the incidents that I believe constitute harassment / discrimination / retaliation: On [date], [name of harasser, title, relation to you] approached me as I was at my desk and rubbed my shoulders. I asked him to stop but he continued to do so until [name of witness] walked by. The following individuals observed the conduct of [name of harasser]. (sexual harassment) On [date], [name of harasser] muttered the “n” word when I walked by his desk. I complained to [supervisor’s name, title], but she told me to just ignore him, without trying to remedy the situation. (racial harassment/discrimination) Attached are documents including [name of documents such as relevant e-mails, prior complaints, log of communications, etc.] relevant to my complaint. Thank you in advance for your attention to this matter. I would appreciate the opportunity to discuss the issues I have raised and hope that [employer] will remedy this situation as soon as possible.
Sincerely, [Your Name]
Following your complaint, HR might try to engage you in verbal discussions to avoid putting anything on the record. It's fine to meet with HR but ensure that you document and memorialize all your discussions -- you got it -- in writing, and e-mail this to HR.
If you have any questions, reach out to an employment attorney to provide you assistance. Do not sit on your rights or wait till it's too late to document your complaint!
*Deborah Yim is the Founder & Managing Attorney of the Primera Law Group. She has been practicing law for over 22 years and has represented both employers and employees as as an Assistant U.S. Attorney, federal agency counsel, and corporate litigator. She can be reached at firstname.lastname@example.org.