Making Proper and Effective Complaints
and Gaining Protection Against Retaliation
Like a Catch-22, both what you say, and also what you don’t say, may come back to haunt you in court
There is an old saying that applies to opponents of any regime — “If not me, then who, if not now, then when?” — But please be careful before becoming a martyr. Get legal advice first, and make the right kind of complaint, in the right way.
Your Complaint could be the foundation of a potential lawsuit. In a lawsuit, you will be grilled about the exact things you said (and did not say) in your Complaint. Try to get it right, because you might only get one chance to say the right things and not too much of the wrong things.
All manner of employment cases are either made stronger or made weaker depending on whether you made a proper and effective Complaint.
Your Complaint might end up being the “star of the show” in a legal battle, since so many employment law doctrines rely on you having made a proper and effective Complaint.
Summary of the main points of this article
- Some Complaints give you protection against Retaliation. You must say the right things to trigger your protections against retaliation.
- Some Complaints serve as the basis of a Wrongful Termination case.
- In a Whistle Blowing case, the “complaint” might be what you do that constitutes “blowing the whistle,” so you need to get it right.
- In a Hostile Environment case such as a Sexual Harassment case where the harassment is not too severe, you don’t usually have strong legal rights until you first make a Complaint and give the employer a chance to fix the problem.
- A proper Complaint is usually required before you can quit your job, if the employer is trying to force you to quit. See my Constructive Discharge article.
- Complaints can greatly assist in proving Discrimination cases, and other types of cases, even if no retaliation has occurred, for many technical legal reasons.
- Many employment law legal doctrines require proper and effective Complaints in order for your rights to be strong. A poor-quality complaint could weaken or destroy your potential case. Even those with Contracts of various types must make proper and effective Complaints, if they want to take advantage of certain legal doctrines available to them in contract-related litigation.
- People often lose their Discrimination cases and win their Retaliation cases. Part of the reason they lost the discrimination case may be because they said too much wrong stuff in their internal or external Complaints, as well as for many other factors.
- People also lose their retaliation cases based on what they say or don’t say in their Complaints, as I will talk about below.
- It’s hard to over-emphasize the importance in employment law of making a proper and effective Complaint, for those laws and legal doctrines that may require Complaints, such as (for a couple of examples) the law of Sexual Harassment, Hostile Work Environment, Retaliation and Constructive Discharge. Please don’t hesitate to call a lawyer.
QUICK TIPS for making proper and effective complaints:
- Complain respectfully and courteously. If you disrupt the workplace, you could lose your rights.
- Complain to the proper person. That’s usually the person the employer designates in its Handbook. It could be your manager. It’s hard to go wrong complaining to Human Resources, if you have an HR department. The person who is doing bad things to you is not the best person to complain to, and if you complain to him rather than to a higher manager (or to HR) you could weaken or destroy your case.
- Say the right things. State the law or legal basis of your complaint and state the facts that make you complain. See my Retaliation article for a list of many types of laws that supply the legal basis for a complaint.
- Don’t say the wrong things. If you feel discriminated against based on Race, try to stay focused on evidence of race discrimination, and avoid talking generally about irrelevant personality conflicts and petty workplace things that do not support your complaint.
- Don’t leave things unsaid that need to be said. It’s hard to say too much if you have a lot of evidence. It’s easy to say too little. Above all, make the basis of your complaint clear: “sex harassment”, “race discrimination”, etc.
- And, be a good subordinate, on your best behavior, after making the complaint. If you want maximum protection against Retaliation, then don’t do anything to give the employer an excuse to discipline or terminate you after making your complaint.
TRAP – Legally speaking, Human Resources is not your friend
HR reps are trained in how to get you to weaken your own potential case and help the employer build its defenses against your potential case. HR departments might actually try to help you fix your problem, but at the same time they are going to be helping their employer prepare its defense. Everything you do or say will be used against you later, if the need arises.
- Your Human Resources Representative works for the company.
- The HR Rep’s legal loyalty is to the company, even if she is a nice person who seems to care.
- The written statement – HR might try to get you to sign a statement that the HR Rep writes up, or the HR Rep might put you in a room and demand that you, on the spot, write a statement, right now. It’s time for you to get legal advice.
You may be locked into the statement in ways that could destroy or severely weaken your case. HR is trying to protect the company by getting you locked in before you’ve had legal advice. That is a common tactic taught to companies at seminars. HR will probably NOT give you a copy of the statement to take to your lawyer for review before you sign (but ask anyway – they’ll look bad later on if they refuse to give you the statement).
You will have to decide for yourself whether you want to get legal advice before you sign anything. A prudent HR department will let you have time to get legal advice. If you meet up with a high-pressure HR Rep trying to force you to sign a statement right now, and if your complaint is about something that gives you protection against retaliation, ask to take a break or ask to leave and come back tomorrow, and in the meantime call lawyers.
- Cooperation is a one-way street – The employment laws require that you reasonably cooperate with HR after making your complaint. But the laws do not require that HR cooperate with you – HR does not have to let your lawyer work with HR on your behalf, or keep you informed of what is going on, or let you have input into what happens. So you are somewhat at the mercy of HR. One way you can protect yourself is to have a lawyer in the background with whom you can consult as the case unfolds (which is what HR does – the company lawyer works with HR on how to manage your complaint). Sometimes I have clients take a break from meeting with HR and call me from their cellphone or a payphone to fill me in – then I can advise them and they return to the room and execute the advice.
The words you used when making your Complaint may be taken out of context or twisted by the other party, and then used against you.
The words you DID NOT SAY when making your Complaint, but which you SHOULD HAVE SAID, will also be used against you.
In a retaliation lawsuit, your Complaint is the star of the show, and lawyers will pick apart your words mercilessly. If the case doesn’t settle early, you will have to sit at a deposition and be grilled by the company lawyer about each sentence you uttered, each word you said. You will be asked about the things you did not say. I speak to people regularly who are surprised to find that their oral complaint to management is going to be dissected in such a manner. But it’s usually too late by the time they come and see me. They’re usually stuck with what they said. I will try to put the best face possible on the complaint, and the company will put the worst face possible on the complaint, and the legal system decides who is more right. Those of you who read this article on my website will make better complaints, I hope, and thereby have a somewhat easier time later on in court.
Try to make Complaints that are difficult to twist and misconstrue. Don’t give the other side too much ammo. In the legal game, expect lawyers to use arguments on a par with television and radio political commentators. The “complete truth” is not particularly relevant. Lawyers are not supposed to “lie,” but what is a lie? Lawyers use partial truths and may twist and misconstrue things, and take things out of context. Lawyers give the benefit of the doubt to their client’s version of events.
In a Retaliation case, the company wants to beat you by showing that you did not make a complaint about, say, Race Discrimination, and therefore, legally speaking, you could NOT have been retaliated against unlawfully, and so your retaliation case must be dismissed. To be retaliated against unlawfully, you must have engaged in “protected activity”, and not all workplace complaints rise to the level of protected activity.
The Company lawyer will take the words you actually used and did not use, as relayed to him by his client with a perhaps selective memory, and will argue that your words did not constitute a “complaint about race discrimination” that protects you against retaliation. The lawyer might agree that you “complained” about something, but the lawyer will not agree that your complaint meets the legal standards for being a proper and effective complaint about race discrimination entitling you to protection against retaliation. Here’s an example:
Hypothetical internal discrimination complaint scenario about
things said and not said, and how lawyers will deal with it
Let’s look at a simple hypothetical example to clarify the point. Joe is of minority race and has been at a company for two years. Assume that Joe feels discriminated against because of his race, in terms of promotional opportunities and job assignments. Generally, minorities are not being promoted as frequently as non-minorities. Joe wants to complain about how the races are being treated differently, but he doesn’t like the way minorities “play the race card” so he wants to be more discreet about it.
So Joe goes to his supervisor and talks about how hard it is for people to get ahead here, but doesn’t say the word “race.” Joe talks about how he knows he does a good job, and some co-workers don’t do as good a job, yet the co-workers get promoted and get better assignments. [Joe is referring to the white co-workers, but he doesn’t say that]. The supervisor speculates about how maybe the plant manager has it in for Joe, and they talk about some little incidents that happened over the years, and Joe agrees that those incidents might have caused the plant manager to dislike him. [Joe knows that the plant manager also might have reason to dislike the white co-workers who still get promotions and good assignments, but he doesn’t say that].
At no point does Joe clarify that his complaint is based on how the races are treated differently. Joe does not like the way minorities play the race card. He is not an Al Sharpton fan. So he avoids saying “race discrimination.” In addition, Joe is also a bit scared of being too aggressive in raising the race issue – he fears for his job security.
Within let’s say six months, Joe has been fired. The company does not like complainers. The company fears that Joe is setting them up for a discrimination lawsuit [Yes, the company interpreted Joe’s complaint as a “race discrimination” complaint, but they’ll never admit to it in court]. So Joe is really on the list now, if he wasn’t before. The supervisor begins closely scrutinizing Joe’s work, watching his time, writing him up whenever justifiable (even though in the past most little things were overlooked). Eventually, Joe is placed on formal discipline for poor performance or rule violations or attendance (minor tardies mostly). After another short time, Joe is terminated for violating the terms of his discipline by committing additional poor performance or rule violations or tardies.
Joe starts calling lawyers because he feels he has been “wrongfully terminated” because he got disciplined for things that others don’t get disciplined for. The lawyer questions Joe closely as to things that happened at work that might have caused the employer to want to be rid of Joe. The lawyer is looking for evidence that Joe engaged in “protected activity”. Joe might recall that he made the oral complaint to the supervisor six months ago. Joe describes the circumstances similar to how I stated them above.
Joe might have two potential cases, one for discrimination and one for retaliation. Both cases have their challenges and problems. But the lawyer is most interested in the potential retaliation case because for technical reasons retaliation cases tend to be easier to prove. Whether Joe can get a lawyer may depend in large part on whether his potential retaliation case stands up to scrutiny.
Joe’s lawyer may feel that Joe committed several errors in how he made his complaint, errors that weaken his potential retaliation case:
If a court concludes that Joe’s complaint was not a “discrimination” complaint, then Joe’s retaliation claim may get dismissed. If only Joe had been less coy, and a little clearer . . .
- Joe did not say he felt discriminated against because of his race. It’s best to state the legal category that might apply to the complaint you are making, rather than be coy, because the employer will argue that Joe did not in fact make a race discrimination complaint and therefore did not gain protection against retaliation. This error could be very troublesome, depending on all the facts and circumstances.
- Joe did not state any facts in his complaint which directly tend to show that discrimination might be occurring. Joe could have talked about whites getting treated better, but he did not. It’s not necessarily enough even if Joe had mentioned “race.” Courts like to see examples of race-related mistreatment in order to see that a complaint is in good faith. A good solid complaint will mention “race” and will use race-related examples. This error could be very troublesome, depending on all the facts and circumstances.
- Joe said damaging things during the complaint process about how he agreed that the plant manager might have it in for him due to some incidents that happened over the years. This makes it look like Joe did not believe he was being discriminated against due to race, but rather because of longstanding problems stemming from old events, like long-simmering personality conflicts. So Joe undermined both his potential retaliation claim and his potential race discrimination claim. This error could be very troublesome, depending on all the facts and circumstances.
- Joe did not complain to Human Resources or to some designated high-level manager. It’s best to get the problem into the hands of Human Resources or people with more power to fix it than front-line supervisors, especially if front-line supervisors are the source of the problem. Depending on the circumstances, this error could be very troublesome or less so.
There are big holes in Joe’s case now. Those holes could cause the case to get thrown out of court on the little technicality that Joe didn’t say enough of the right stuff and he said too much of the wrong stuff in his complaint. So what could have been a worthwhile retaliation case (if Joe’s complaint had been better) is now a more marginal case that might or might not be worthwhile depending on many other facts and circumstances.
The errors listed above could turn out to be troublesome enough that some judges will decide that Joe did not gain protection against retaliation (because he did not engage in “protected activity”). If that happens, Joe’s case is in great danger of being thrown out of court, unless an alternative legal theory is available. Alternative theories may be available, but they will probably be harder to prove than a retaliation case.
In addition to the errors above, Joe missed an opportunity. Joe did not complain in writing. It’s best to make a written complaint if you say the right things. Joe missed an opportunity. Oral complaints allow the employer to dispute what Joe claims he said in his complaint, but Joe is still allowed to testify to his own recollection. But a written complaint would end any speculation about what Joe said.
The problems Joe faces in the example above are not unique to Race Discrimination. All manner of cases involve Complaints, and so any case could have the same problems as Joe is facing.
Here are some more short examples –
- Sexual Harassment: A particularly tough battle occurs when you complain about sexual harassment and end up quitting your job. In such a battle, the Company’s conclusion might be that you did not properly go through the complaint process about sexual harassment before quitting, and therefore you can’t sue over the employer’s failure to stop the harassment. Here’s a recent court case illustrating this battle, where the Eighth Circuit Court of Appeals concluded that a woman who quit due to ongoing sex harassment did not properly complete the complaint process, and therefore she quit her job too soon, and therefore she loses her case. The jury thought she did meet all the legal standards and voted for her to win, but the Appeals Court disagreed and reversed the jury verdict. The case is Diana Duncan v. General Motors (PDF file – opens in new window). Employment lawyers don’t like this court decision very much. See my article on Quitting, called Constructive Discharge for more tips and traps.
- Whistleblowing: In some types of Whistle blower cases, the laws specify the type of things that constitute “blowing the whistle.” Therefore, your “complaint” must say the right things in order to be “blowing the whistle.” The new Sarbanes-Oxley Act is going to be notorious for limiting the types of things that really do constitute blowing the whistle in the Accounting and Securities industry.
- Retaliation generally: Take a look at my Retaliation article. For most things, if you are complaining then be reasonably specific about the legal basis of your complaint and the legally relevant facts underlying your complaint.
- Discrimination: If you suspect Discrimination of any unlawful type is occurring while you are still employed, you should consider making a complaint to the proper person and stating the legal basis of your complaint and the relevant facts supporting your complaint.
Courts look differently at Internal Complaints and External Complaints
Internal Complaints are within the company. External complaints are to outside agencies, such as to government agencies. Both types of complaints can gain you protection against Retaliation. Generally, the biggest problem arises from Internal complaints, because the courts scrutinize them more closely to see that the internal complaints meet certain legal standards. External complaints are not generally scrutinized as closely and might give you protection against retaliation even if deficient. But no matter whether your complaint is Internal or External, the actual words you say, and don’t say, will be used against you in court. So you need to say enough of the right stuff and not too much of the wrong stuff.
People often have a big legal problem regarding the nature and quality of the internal complaints they make to their employers. Internal complaints are quite important legally, because they could serve as a form of “protected activity” that gives you a wrongful termination case if the employer retaliates against you. See my retaliation and wrongful termination articles for more info on those topics. But people often do not recognize the importance of the internal complaints until they talk to lawyers after getting retaliated against.
By the time your lawyer reviews your circumstances, it might be too late to take any corrective measures to fix your faulty internal complaint. A faulty internal complaint could mean that you do not enjoy any protection against retaliation for making the complaint. It happens that some people lose their retaliation cases simply because they failed to utter some important words, or because they said a few words too many and undermined the legal value of their complaint.
Even if your complaint is external, such as to a government agency, the words you use when making the complaint could be critical. Everything you say and everything you don’t say could be critical. The seriousness of the thing complained about might still turn out to be an issue, although generally speaking you enjoy more protection against retaliation if you file a complaint with a government agency even if the complaint is factually somewhat weak.
If you sue over a Discrimination claim, your EEOC and MCHR charge form will be closely scrutinized by the employer and the court. They will look to see if you said enough of the right stuff to support the lawsuit you are filing. Often, the employer argues that you can’t sue for some things because your EEOC or MCHR charge was not detailed enough to cover the subject matter of your lawsuit.
Internal complaints cause contentious legal battles over whether your complaint meets the standards to enable you to enjoy protection against Retaliation. If the standards are met, you have protection – you have engaged in “Protected Activity”.
Courts will closely scrutinize your internal-company complaints in these ways:
- The words you use when making the complaint could be critical. Everything you say and everything you don’t say could be critical. You need to raise the right legal considerations in your complaint. Ideally, you will not undermine your own complaint by saying the wrong things in addition to saying some of the right things. Ideally, you will actually utter important keywords to make it crystal clear that your complaint is about, say, “Race Discrimination” etc … Say the magic words to make it clear that you are complaining of a specific type of wrongful treatment. If your complaint is non-specific and generalized, your complaint is weak and could undermine all of your potential cases of whatever nature. The court cannot read your mind – Say the right things.
- The way in which you deliver the complaint could be critical. The court wants to see that you are respectful and courteous during the complaint process, and that you don’t disrupt the workplace or act unreasonably. You must deliver your complaint in a reasonable manner.
- The seriousness of the thing you complain about can be a big issue in court. If you complain of things that are not significant enough, then the court might conclude that you did not engage in “protected activity”. The actual words you use could be critical to this determination, as well as the underlying facts that caused you to complain. You can say the right words, but the events you correctly describe could be so insignificant that the court could conclude your complaint was not in good faith and deny you protection against retaliation.
External complaints, such as to government agencies, are scrutinized differently by the courts
In an External complaint, you often gain protection against Retaliation even if you don’t say all of the right stuff or even if you say too much of the wrong stuff. That isn’t always true, but as a general rule the anti-retaliation protections are stronger for External complaints.
But just as with Internal complaints, the actual things you say and don’t say will come back to haunt you later in court in one way or another. The things you actually say will be used to determine, for example, whether the things you complained about appear to be, for example, race discrimination. This is relevant to whether you have a good race discrimination lawsuit, and is relevant to other technical legal issues in lawsuits. In addition, the things you don’t say will come back to haunt you, if you should have said those things in your complaint but failed to do so. Your opponent may try to accuse you of making things up if you say things later on that should probably have been said in your original complaint (if they really happened).
Be careful with complaints. They are necessary, but they need to be done with forethought and care, looking forward to the day when you might have to sue over the thing you are complaining about, or might have to sue over retaliation for making the complaint. Consider getting legal advice before you make your initial complaint if you have time.
Article written by | Tim Willoughby
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City.
He is a member of the Missouri Bar Association and Kansas Bar Association.
Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City.
He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.