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TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4430
Experience:  Contracts, Wrongful termination and discrimination
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A senior manager at my company said to me "Cant you hire a

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A senior manager at my company said to me "Can't you hire a man? There's too much estrogen on that team." (Among other sexist statements). (I actually recorded him saying this on my mobile, I'm afraid to say, without his knowledge -- I started recording our conversations as he makes such scary statements that I wanted evidence of what I had said in return, in case I needed it--legal in NY.) As a mid-level manager in this company, what action do I need to take to protect myself in case his behavior leads to a lawsuit?

Thank you for your question.

Let's first start with thinking about what exactly you are protecting yourself from. If a senior manager is making sexist statements about hiring based on gender, then the company itself is looking at exposure to liability for violation of the federal and state employment anti-discrimination laws. There is no individual liability exposure here. The company (i.e., the employer) is the only party exposed.

So, in truth, your exposure lies with being dragged into a claim because you were ordered to act in a discriminatory way. As in many things in business, the boss will try to place the blame on a scapegoat, usually in a person under him/her. This means that the real exposure to you is being blamed for executing a discriminatory act and then being fired or otherwise disciplined, which would put a blackmark on your resume.

So, does the company have an HR department?

Does the company have any established policies regarding discrimination?

Does the senior manager have a boss whom you could complain to?

Other than recording the conversations, have you made any written objections?

Customer: replied 4 years ago.

HR Dept: We do and I went to the Chief Talent officer and mentioned that I thought we needed a refresh of diversity training as I had an incident -- but I did not reveal names as I am afraid for my job. There was a previous series of incidents with a different executive in which a series of women came to me to complain (I am a department director who is seen as a problem-solver). The end result of that previous series is I have been de facto demoted as the executive left the company.


Policies -- yes they have and have an online course in diversity training we are all required to take.


I am worried about complaining up the ladder as I fear reprisal.
Me going up against a president in the company? Will be looked on askance. I can't win. I have already found myself shoved aside because of this previous series of incidences. The company is being taken over by management who prefer men in higher positions.


I did not put my complaint in writing. Should I? Can I do so without naming names and landing myself in a time-consuming legal sticky wicket? Or is this already too far down the path?


PS: I'm desperately trying to find another job so I can escape this environment.

These company politics are very tricky. As you have pointed out, complaining will only result in retaliation against you. There is no legal protection for retaliation in these circumstances. The only way to trigger retaliation protection is to make a claim to the EEOC.

I would not advise that at this point, since you are only seeking protection for yourself. What I would do is on every occassion where there is a discriminatory comment made or action requested, you should (1) keep a record of it by emailing yourself a written transcript of what took place or what was said; (2) tell the supervisor that you think the requested action might be in violation of anti-discrimination laws and just want to make sure that what he is asking is what he really wants you to do.

The record you make by emailing yourself a diary of sorts of the discrimination will establish an authenticated record by which you can show that you protested and warned and also to show where the discrimination was coming from should this become an issue later on.
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Customer: replied 4 years ago.

Actually, I have in fact been making a record of the most egregious discriminatory behavior by emailing to my Gmail for the past year and a half, or maybe longer, ever since the first complaints came to me regarding the executive. I have been told that next week I will be told "how we are structuring the department" at which point I believe that I will be given a dead-end job, in essence a demotion with the goal being to get me to quit, and a male will be promoted to the position I now hold (one in the circle of friends of the people now coming into power.) I am thinking I actually should make a complaint with the EEOC, but I'm nervous that will lead to a lot of my energy having to be directed into that activity. On the other hand, it looks like other women will be affected at the company by this group. Another woman has complained to me about sexist treatment at their hands (long story). If I do eventually make a complaint to the EEOC, do I need to name names and complain to the HR chief first? Once I go down that path of filing with the EEOC, is there any return?