When You Think You're Going to Get Fired . . .
What should you do to protect your rights? Here are some suggestions on what to do when you think your boss is trying to fire you or make you quit.
WHAT RIGHTS DO YOU HAVE
First, you need to know that you can’t just sue your boss because he or she is mean or incompetent. It is not against the law to be rude, uncaring, harsh, dumb, etc. However, you do have protection under state and federal laws that prohibit certain forms of discrimination, harassment, and retaliation. So, if you suspect your boss is trying to force you out, or denying you employment opportunities because of your race, gender, age, disability, pregnancy, national origin, religion, or use of leave under the Family Medical leave Act (FMLA), you may have a claim under state and federal Civil Rights Statutes. If you are the victim of persistent harassment related to one of these forms of discrimination, or if your boss has retaliated against you because of your complaints about such discrimination, you need to pay attention.
We cannot stress enough the importance of documentation. Write everything down! Take notes, copy yourself in on emails, keep an accurate record of conversations, witnesses, and dates. This will be crucial down the road when it comes time to consult with an attorney about filing an employment law claim.
A preferred method of documentation is email. Email not only creates a record that you can access in the future, but you can prove that your employer received it, which is far superior to just handing your boss the sole copy of a written statement. If you have to submit a handwritten statement, send a follow-up email.
Today I submitted to you my handwritten statement explaining why I think the write-up you gave me is unfounded. I have not committed the infractions of which I am accused. Further, my [male, white, Christian, younger, non-disabled, etc.] coworkers who have violated company policy have not been disciplined as harshly as me. I have asked that this write-up be removed from my record. If you need any further documentation or information, please let me know.
Text messages are also okay if you are in the habit of communicating with your boss through that method. But with texts, we recommend that you take screen shots of your phone and save them in a separate electronic file. That way, if all of your texts somehow get deleted, you’ll have that backup copy stored in a safe place. Do not count on your phone company to keep a record of your text message content! Many cell phone providers do not retain text message content, and the ones that do only do so for a short period of time.
If you are communicating with your boss verbally, either in person or over the phone, we recommend that you follow up important conversations with an email. For example, let’s say that you suspect your supervisor is trying to make you quit or refusing to promote you because of your race or gender and you discussed these concerns with your supervisor in person. Send an email!
Example 1: Document Your Complaints
I have repeatedly expressed my concerns to you about the harassment I have been receiving from my coworkers. You and I spoke in your office on [date], and I told you about the nasty comments and crude jokes that they are making. [List the specific details and incidents and how they are discriminatory.] You informed me that you would look into my complaints, but so far, I have not heard anything from you. The harassment has not stopped, and it is really having an adverse effect on me.
I love working for this company, but I cannot continue to suffer the harassment that I am being subjected to. I really need the company to intervene to stop this [racial or gender] discrimination.
Example 2: Document What Your Boss Tells You
Thank you for taking the time to speak me over the phone today regarding my application for promotion to manager. I have worked for this company for [X] years now, and I am very qualified for this higher position. I am disappointed that you feel that I am not the right person for the job, and I would like you to reconsider.
Although I understand that you are planning to hire Mr. White for this position, I would like to point out that my evaluations have been nothing but positive, that I have been with the company longer than Mr. White, and that I have more supervisory experience than the other candidates. When we spoke, you acknowledged my exceptional record and work ethic.
Based on my performance as well as our conversation, I do not understand why I am being passed over for this promotion. I am requesting that the company reconsider its anticipated decision to hire Mr. White, as I believe I am the more appropriate candidate for the job.
FOLLOW YOUR COMPANY POLICIES AND HANDBOOK
It is likely that your company has a handbook of policies and procedures that outlines how you should go about filing discrimination or harassment complaints. It is important to give the employer a chance to remedy any discriminatory or harassing conduct. Responsible managers should want to resolve such complaints. Also, if you do not follow your company procedures, the employer will likely try to use that against you if you make a claim in the future. Always have a copy of your handbook, and be aware of what steps your company is going to require you to take in order to file a grievance. If you follow your company’s guidelines and the company still fails to stop the harassment, discrimination, or retaliation, you will likely have a stronger employment law claim down the road if you decide to file a charge of discrimination or a lawsuit.
BE AWARE OF TIME LIMITS
There are deadlines that the law imposes about how long you have to file a charge of discrimination or lawsuit after you have been the victim or harassment, discrimination, or retaliation. For example, if your boss is discriminating against you because you took some FMLA time off to care for a sick parent, you have 2 years to file a lawsuit, unless you can prove that the discrimination was intentional, and then you have 3 years. Some employment law claims have a longer statute of limitations than others, and it differs still if you’re filing in state or federal court.
If you are the victim of unlawful discrimination, you may file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). It may be very important to file a charge of discrimination with the EEOC as that is a prerequisite for pursuing a lawsuit under many of the federal statutes that protect you from employment discrimination. Depending on what state you are in, the deadlines will vary and may be as little as 180 days and never more than 300 days.
State Civil Rights agencies set their own time limits. For example the Kentucky Commission on Human Rights (KCHR) and the Ohio Civil Rights Commissions (OCRC) require charges of unlawful discrimination or harassment to be filed within 180 days of the unlawful act with respect to most forms of discrimination. But note, it is not always required to first file a charge of discrimination with a state agency, so you may want to contact an attorney experienced in employment law to assist you with making that important decision.
You need to make sure that as soon as you think you have been the victim of harassment, discrimination, or retaliation that you educate yourself about what rights you have. If you wait too long, it might be too late to do anything about it.
CONSULT WITH AN ATTORNEY EARLY
If you think your boss is trying to fire you or trying to make you quit, do not wait until he or she actually succeeds before you talk to a lawyer. There are many recommendations an attorney can give you that will protect your rights down the road and improve your chance of success in court. It is best to consult with an experienced employment lawyer as early as possible after becoming aware that you may be a victim of unlawful discrimination. It is possible that early intervention by an attorney can protect your job and resolve your issues of discrimination before any serious adverse employment action occurs. Absent such a resolution, your attorney can help you navigate the somewhat technical and complicated requirements to discrimination laws.
EACH CASE IS DIFFERENT. Our recommendations to one client are almost always unique to those of another. That is why it is so important that you consult with an attorney early in the process, and explain to your lawyer the specific facts of your individual situation.
We offer free initial consultations for employment law cases, so if you think you might have a claim now or in the future, give us call and let us discuss with you how best to protect your rights.