TCW #026 | Dealing with unfair treatment at work (including harassment, discrimination, and retaliation)

Escape the Hunger Games without getting taken down with a bow and arrow, and maintain both your sanity and integrity in the process 🏹

Jul 19, 2023

The Four Horsemen of the Workplace Apocalypse. Original cartoon by Rayma Suprani. Modifications by me.

This week, we’ll talk about how to confront situations where you are being treated unfairly at work.

Bullying doesn’t always end on the playground, and it happens at work all the time. If you’ve ever felt attacked or targeted by a manager or colleagues, you know that it feels absolutely terrible.

Whether you yourself are in this situation (now or in the future), or someone you care about is being treated unfairly at work, this post will provide you with some pathways to get things back into balance.

✍️ Note: I’m an engineer, not a lawyer, so none of what I present here is legal advice. Labor laws and trends change regularly, and this article will not be actively updated. Treat this post as a starting point in your discovery of your rights and routes to resolve unfair workplace treatment.

Let’s dive in.

I first introduced the The Hunger Games workplace relationship dysfunction in TCW #022 “The 6 dysfunctions in manager-employee relationships.”

Below is a quick refresher on what it feels like to live in The Hunger Games at work, and how it might impact your personal wellness and your career trajectory.

🏹 The Hunger Games aka Unfair Treatment, Harassment, or Retaliation

The Hunger Games is a painful workplace dysfunction where one party feels unfairly treated. This can be caused by a variety of factors, including favoritism, discrimination, harassment, bullying, or retaliation. It can be mild, moderate, or severe — and in some cases may impinge upon your legal rights as a worker.

Some common signs or symptoms that you are becoming a Tribute in The (corporate) Hunger Games:

Feeling Targeted: Fairness means that the same treatment is applied across the board. Being treated unfairly means that you are being treated differently from others (and likely in a way that bothers you). If you feel singled out or targeted, you might be experiencing this workplace dysfunction.
Resentment: We all know that bullies spawn other bullies. You will likely feel scared and resentful towards your manager or employer. You may even take out your anger on your work (ie sabotaging production code), your manager, or your colleagues. This can be a vicious cycle and have side effects of guilt and self-loathing, if it gets out of control.
Demotivation, Disengagement, Isolation: If you’re feeling unfairly treated, and nothing improves — no matter what you do to get into good graces — you may eventually give up and disengage from your work and your colleagues to protect yourself emotionally.

There are severe emotional impacts and risks, as well as a strong likelihood that your career trajectory and work quality will degrade.

TLDR: Being treated unfairly? Harassed? Discriminated or retaliated against? Flag this right away. Do not let it get worse or go unnoticed.

Let’s talk about Your Rights and Employer Responsibilities

Let’s start by clarifying your rights as a worker, and your employer’s responsibilities when it comes to protecting and upholding those rights.

Your rights as a worker

The United States has a number of laws that protect workers from discrimination, harassment, unfair treatment, and retaliation. These laws include:

Title VII of the Civil Rights Act of 1964
The Age Discrimination in Employment Act of 1967 (ADEA)
The Equal Pay Act of 1963 (EPA)
The Americans with Disabilities Act of 1990 (ADA)
The Genetic Information Nondiscrimination Act of 2008 (GINA)

These laws prohibit discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 or older), disability, and genetic information. They also prohibit retaliation against employees who oppose discrimination or file a discrimination complaint.

These laws specifically protect workers from the following:

Discrimination in hiring, firing, promotion, pay, benefits, and other terms and conditions of employment.
Harassment based on any of the protected categories.
Unfair treatment, such as being denied a promotion or being subjected to a hostile work environment.
Retaliation for opposing discrimination or filing a discrimination complaint.

Your employer’s duties

All US-based employers are required to investigate employee complaints promptly, thoroughly, and impartially. The employer must also take appropriate action to address the complaint, if necessary. Applicable complaints include the following categories:

Harassment: This includes any unwanted conduct that is based on a protected characteristic, such as race, religion, sex, or disability. It can include things like making offensive jokes, comments, or gestures; creating a hostile work environment; or touching someone without their consent.
Discrimination: This is when an employee is treated differently than others because of a protected characteristic. For example, an employer might refuse to hire or promote a woman because she is pregnant, or they might pay a man more than a woman for doing the same job.
Retaliation: This is when an employee is punished for reporting discrimination or harassment (also known as whistleblowing). For example, an employee might be fired after they complain about being sexually harassed by their boss.
Unfair dismissal aka Unlawful termination: This is when an employee is fired for a reason that is not fair or legal. For example, an employee might be fired because they are pregnant, or because they have a disability.
Unfair pay: This is when an employee is paid less than other employees for doing the same job. This can be due to discrimination, or it can be because of other factors, such as the employee's age or experience.
Unfair working conditions: This includes things like working long hours without overtime pay, or being exposed to hazardous conditions.

In addition to these categories, employers may also be required to investigate other types of complaints, depending on the specific laws that apply to their business. For example, employers in certain industries may be required to investigate complaints of safety violations or wage theft.

If you believe that you have been the victim of workplace discrimination or harassment, you should talk to your employer first and file a formal complaint (see section: How to file a complaint).

You can also file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC is a federal agency that enforces the anti-discrimination laws. If you file a complaint with the EEOC, they will investigate the matter and try to resolve it through mediation. If mediation is unsuccessful, the EEOC may file a lawsuit on your behalf.

Unfair treatment

Everyone deserves to be treated fairly and consistently in the workplace. Some examples of workplace unfairness that I’ve seen or experienced (note I’m pretty good at brainstorming, but this list certainly is not exhaustive):

Favoritism or “Cinderella”ism
Nepotism
Ignoring an employee (but not others)
Dismissing an employee’s concerns (but not others’ concerns)
Criticizing an employee (more than others)
Micromanaging an employee (more than others)
Giving preferential treatment to certain employees (better work assignments, more visible projects, etc).
Making offensive remarks

If you are experiencing any of these things, here are some steps you might take to address the issue quickly:

Confront your manager (or whomever is treating you unfairly). “You’re doing <this thing> to me that makes me <uncomfortable, sad, isolated, offended>” can open the door to a direct, productive conversation to address the issue, especially if you believe that your manager isn’t intentionally out to get you.
Reach out to Employee Relations or HR. If you have an employee relations team, their role is to listen to employee concerns, document them, investigate them, and determine what should be done. Some companies even have anonymous hotlines or email addresses you can use if you have any fear of retaliation.

Harassment

Workplace harassment is defined as unwelcome conduct that is based on a protected characteristic, such as race, color, religion, sex (including sexual orientation and gender identity), national origin, age (40 or older), disability, or genetic information. The conduct must be severe or pervasive enough to create a hostile or offensive work environment or to affect the victim's ability to do their job.

Here are some examples of workplace harassment:

Verbal harassment: This includes making offensive jokes, comments, or gestures; calling someone names; or making threats.
Physical harassment: This includes touching someone without their consent, shoving or pushing someone, or blocking someone's way.
Visual harassment: This includes displaying offensive images or cartoons; making sexual advances; or leering at someone.
Emotional harassment: This includes isolating someone from their coworkers; spreading rumors about someone; or giving someone the silent treatment.

Some things that seem like workplace harassment but actually are not include:

Flirting: Flirting is not always harassment, but it can be if it is unwanted and makes the person feel uncomfortable.
Teasing: Teasing can be harassment if it is done in a way that is mean-spirited or intended to make someone feel bad.
Criticism: Criticism is not always harassment, but it can be if it is done in a way that is personal or demeaning.
Management: this gets a bit tricky, because normal activities of management (even if taken to a bit of an extreme, ie daily 1:1s or randomly scheduled and highly critical deep-dives on your work) are difficult to substantiate as harassment.

💡 If you believe that you are being harassed at work, you should raise the issue with your employer first as a complaint. If they are not willing to address the issue, you may want to contact an employment lawyer. (see the Resources section below)

Discrimination

Workplace discrimination is defined as treating an employee or applicant differently because of their race, color, religion, sex (including sexual orientation and gender identity), national origin, age (40 or older), disability, or genetic information. The treatment must be because of the employee's protected characteristic, and it must be either intentional or have a discriminatory effect.

Here are some examples of workplace discrimination:

Hiring: An employer refusing to hire someone because of their race, religion, or gender.
Pay: An employer paying an employee less than other employees for doing the same job because of their race, gender, or national origin.
Promotions: An employer not promoting an employee because of their age or disability.
Termination: An employer firing an employee because of their race, religion, or sexual orientation.
Harassment: An employee being subjected to unwelcome conduct that is based on their protected characteristic.

Some things that people might think are discrimination but are not include:

Performance reviews: A negative performance review is not necessarily discrimination. If the review is based on the employee's job performance, it is not illegal.
Disciplinary action: An employee being disciplined for violating company policy is not necessarily discrimination. If the discipline is applied fairly to all employees, it is not illegal.
Layoffs: Layoffs are not necessarily discrimination. If layoffs are based on legitimate business reasons, they are not illegal.

It is important to remember that discrimination can be subtle. It is not always easy to tell if someone is being discriminated against, and unfortunately many bad actors will find ways to blame the victim or fabricate information to make it seem as though a negative performance review or disciplinary action is justified (when in fact it’s discrimination).

💡 If you believe that you are being discriminated against at work, you should raise the issue with your employer first as a complaint. If they are not willing to address the issue, you may want to contact an employment lawyer. (see the Resources section below)

Retaliation

Workplace retaliation is defined as taking an adverse action against an employee because they have engaged in protected activity. Protected activities include:

Filing a complaint with the Equal Employment Opportunity Commission (EEOC)
Participating in an investigation of discrimination or harassment
Refusing to participate in illegal activity
Whistleblowing about illegal activity
Supporting someone who has engaged in a protected activity

Here are some of common examples of workplace retaliation:

Firing an employee for participating in a protected activity
Demoting an employee for participating in a protected activity
Withholding a promotion from an employee for participating in a protected activity
Giving a negative performance review to an employee for participating in a protected activity
Changing the employee's job duties because they participated in a protected activity

Some things that people might think are retaliation but are not include:

Disciplinary action: An employee being disciplined for violating company policy is not necessarily retaliation. If the discipline is applied fairly to all employees, it is not illegal.
Layoffs: Layoffs are not necessarily retaliation. If layoffs are based on legitimate business reasons, they are not illegal.
Performance reviews: A negative performance review is not necessarily retaliation. If the review is based on the employee's job performance, it is not illegal.

It is important to remember that retaliation can be subtle. It is not always easy to tell if someone is experiencing workplace retaliation. Bad actors will often fabricate information or start rumors that make it seem as though the victim was having performance issues or needed disciplinary action when in fact they are retaliating against the person.

💡 If you believe that you are being retaliated against at work, you should raise the issue with your employer first as a complaint. If they are not willing to address the issue, you may want to contact an employment lawyer. (see the Resources section below)

How to file a complaint

Here are some tips on how to file a complaint:

Gather your evidence. This includes any documents, emails, or other materials that support your complaint. You should also keep a record of any conversations or interactions that you have had with the person or people who are the subject of your complaint.
Be clear and concise. When you file your complaint, be sure to explain what happened and why you believe that you have been discriminated against or harassed. Be as specific as possible, and include dates, times, and names of any witnesses.
Be professional. Even though you may be upset, it is important to remain professional when you file your complaint. This will help to ensure that your complaint is taken seriously.
File your complaint in the right place. Depending on the nature of your complaint, you may need to file it with your employer, the Equal Employment Opportunity Commission (EEOC: https://www.eeoc.gov), or another government agency.
Follow up. Once you have filed your complaint, be sure to follow up to make sure that it is being investigated. If your employer doesn’t investigate the complaint (or if they don’t respond at all to your complaint), you may want to contact an employment lawyer (see the Resources section for more information).

A template that you can use to file a complaint with your employer:

To Whom It May Concern:
I am writing to file a complaint against <name of person or people who are the subject of your complaint>. I believe that I have been discriminated against or harassed because of my <protected characteristic>.
The following are the specific incidents that I am complaining about:
<List the specific incidents that you are complaining about>
I believe that these incidents have created a hostile work environment and have made it difficult for me to do my job. I am requesting that you investigate my complaint and take appropriate action to address the situation.
Thank you for your time and attention to this matter.
Sincerely,
<your name>

Resources

The Equal Employment Opportunity Commission (EEOC): https://www.eeoc.gov/
The National Labor Relations Board (NLRB): https://www.nlrb.gov/
The American Civil Liberties Union (ACLU): https://www.aclu.org/
The National Employment Lawyers Association (NELA): https://www.nela.org/

Closing thoughts

We all deserve to basic mental and physical safety in the workplace. Worker’s rights are often trampled upon, accidentally or even intentionally (by bad actors). It’s important to know your rights and choose the best pathway to resolve these issues so you can blossom and thrive in the workplace.

🎉 That’s a wrap! I hope this helps you regain comfort with your rights to be treated fairly in the workplace.

Because working relationship dysfunctions are so woefully common in the workplace — and so detrimental if not dealt with expeditiously — I’ve created a series dedicated to diagnosing and resolving dysfunctional workplace relationships. All posts in the series:

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