The recent protests about police brutality and systemic racism illustrate how understandably emotional these topics are for all of us. With so much unrest over current events, these topics are very likely to find their way into the workplace. At Barrett & Farahany, our mission has always been, and continues to be, positive societal change. We are more concerned than ever for workers and what they may face in their workplaces in the coming days. We want to be certain that employees understand their rights during these volatile times, and we also want to continue to offer guidance on how to deal with workplace concerns in a way that promotes positive change, invokes legal protection, and preserves that protection.
Under the National Labor Relations Act, speech about the workplace and working conditions is considered protected speech. This means that conversations with your coworkers about work-related matters or complaints are protected. Protected topics can include pay, scheduling, working conditions, safety issues, perks, insurance, parking, company policies, and a variety of other problems you may encounter at work. Moreover, the Civil Rights Act of 1964, otherwise known as Title VII, protects employees from discrimination, complaints, and retaliation related to protected characteristics like race, religion, gender, national origin, age, disability, and pregnancy.
Keep in mind that political speech is generally not protected unless it relates to one or more protected issues, like those mentioned above. Also bear in mind that the First Amendment applies to government actors, not private employers, and freedom of speech does not always mean freedom from consequences. Most states are at-will, meaning you can be fired at any time for any reason or no reason at all - including for something you say or do where no legal protection applies.
If you encounter workplace comments or behavior that crosses legally protected lines, there are steps you should take. We've developed a method to help you remember what those steps are so that you can S.T.A.R.T. the change you want to see at work: Stop, Think, Account, Report, and Track.
Stop. Do not escalate the situation - discontinue the negative interaction the moment there is a discriminatory word or act toward you. Distance yourself from the situation if possible.
Think. Don't take any bait – don't return hateful words or physical violence, walk away instead. If you believe you are in physical danger, get to a safe place and call the authorities. Remain professional and don't give your employer any reason to legally terminate you.
Account. Document exactly what happened and what was said to you in as much detail as possible, including the date, time, place, and names and titles of those involved. In one-party recording states, like Georgia, you can also capture audio without permission as long as you are a party to the conversation and as long as recording is not a violation of your employer's policy. Again, never give the employer a reason to terminate you by your words or actions. Always keep a copy of your version of the events.
Report. Report the incident to your human resources person, in writing, and be sure to keep a copy of your complaint for yourself. Be specific – it's important to name what kind of protected characteristic was targeted – a general allegation of discrimination will not be protected.
Track. Look for signs of retaliation after you have reported the incident. Unjustified demotions, pay cuts, or even termination on the heels of a protected report are very likely retaliation. If there is evidence of retaliation, START again.
You should repeat this S.T.A.R.T. process each time you believe there is further discrimination or retaliation in response to your complaint. It's very important for you to go through this same process each time there are words or actions you believe are discriminatory and cross legal lines. It's also crucial to keep accurate records to establish patterns and frequency of discrimination and retaliation.
If you believe that you have been discriminated against because of a protected characteristic, we invite you to reach out to us at 404-487-0903. One of our experienced attorneys will talk through your situation with you and will advise you about any further steps you may need to take.