What Employees Should Say When Complaining About Workplace Discrimination

Having represented retaliation victims for more than twenty years, our employment lawyers in Marion County, Florida know that many employment discrimination victims mistakenly believe they are protected from retaliation when they complain about unfair treatment or employment-related concerns. Under employment discrimination law, however, employees are only protected from retaliation when they complain about perceived discrimination or unfair treatment on the basis of race, national origin, sex, religion, age, or disability. Employees who merely make general complaints of unfair treatment or employment-related concerns are not protected from retaliation under employment discrimination law. In this article, our employment lawyers in Marion County, Florida explain how the decision in Brunt-Piehler v. Absolute Software, Inc.,2024 WL 3765523 (W.D. N.Y. Aug. 13, 2024) illustrates that employees should use the word “discrimination” when complaining about perceived discrimination or unfair treatment because of their race, national origin, sex, religion, age, or disability.

Protection From Retaliation

Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discrimination on the basis of race, national origin, sex, and religion. The Age Discrimination in Employment Act (“ADEA”) prohibits employers from discriminating against employees on the basis of age. Under the Americans with Disabilities Act (“ADA”), employees are protected from discrimination on the basis of disability.

To protect employees from retaliation and help facilitate the eradication of employment discrimination, Title VII, the ADEA, and the ADA contain anti-retaliation provisions. Under Title VII, employees are protected from retaliation when they complain about perceived discrimination on the basis of race, national origin, sex, or religion. The ADEA prohibits employers from retaliating against employees who complain about perceived age discrimination. The ADA protects employees when they complain about perceived discrimination on the basis of disability.

In order to trigger protection under the anti-retaliation provisions in Title VII, the ADEA, and the ADA, employees must complain about discrimination or unfair treatment on the basis of race, national origin, sex, religion, age, or disability. A mere complaint about unfair treatment or employment-related concerns does not trigger protection under the anti-retaliation provisions in Title VII, the ADEA, or the ADA. Thus, as the court in Benzinger v. Lukoil Pan Ams.,LLC, 447 F. Supp.3d 99 (S.D. N.Y. 2020) explained, “the onus” is on the complaining employee “to clarify to the employer that he is complaining of unfair treatment” because of his race, national origin, sex, religion, age, or disability and “that he is not complaining merely of unfair treatment generally.”

Why Employees Should Use The Word “Discrimination”

Courts have determined that no particular words, such as the word discrimination, are required to qualify for protection from retaliation under Title VII, the ADEA, or the ADA. However, as the court in Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276 (2d Cir. 1998) observed, the employer must have “understood, or could reasonably have understood,” that the employee was complaining about discrimination or unfair treatment on the basis of race, national origin, sex, religion, age, or disability. In other words, as explained by the court in Rodas v. Town of Farmington, 918 F.Supp.2d 183 (W.D. N.Y. 2013), the employee “must complain of discrimination in sufficiently specific terms to put the employer on notice that the [employee] believes he or she is being discriminated against on the basis of race, national origin,” sex, religion, age, or disability.

Although employees are not required to use the word “discrimination” to be protected from retaliation under Title VII, the ADEA, or the ADA, employees should use the word “discrimination” when complaining about perceived discrimination or unfair treatment based on their race, national origin, sex, religion, age, or disability to conclusively establish that the employer understood or should have understood hey were complaining about perceived unlawful employment discrimination. The use of the word “discrimination” is of critical importance because employers almost never admit that employees lodged a discrimination complaint. Even in the rare cases where they admit that an employee lodged some type of complaint, employers invariably claim that the employee complained about everything other than perceived unlawful employment discrimination. In other words, employers almost always characterize an employee’s complaint as a mere complaint of unfair treatment or employment-related concerns and, thus, a complaint that does not qualify for protection from retaliation under Title VII, the ADEA, or the ADA.

Retaliatory Discharge Lawsuit

In Brunt-Piehler, a woman named Brunt-Piehler brought a retaliatory discharge claim against her former employer, Absolute Software, Inc. (“Absolute”), pursuant to Title VII. Brunt-Piehler alleges that Absolute violated Title VII by firing her in retaliation for complaining about sex or gender discrimination.

Following a jury trial, the jury found in favor of Brunt-Piehler on her retaliatory discharge claim and awarded her $75,000 in compensatory damages. After the jury’s verdict, Absolute filed a motion for judgment as a matter of law in Brunt-Piehler’s retaliation claim. Absolute contended that there was insufficient evidence to establish that Brunt-Piehler complained about perceived unlawful gender discrimination and, as a result, the jury’s verdict on her retaliation claim must be vacated. The trial court agreed with Absolute and vacated the jury’s verdict in favor of Brunt-Piehler on her retaliation claim.

In vacating the jury’s verdict and dismissing Brunt-Piehler’s retaliation claim, the trial court found that Brunt-Piehler “presented no evidence that she complained of unfair treatment based on her gender, or that [Absolute] knew or should have known that she was complaining about treatment based on her gender.” Instead, the trial court determined found that Brunt-Piehler merely complained that she wanted to be treated “like the others” or “fairly.” Such general complaints of unfair treatment, the trial court explained, do not constitute a complaint about discrimination based on gender or “place an employer on notice of gender discrimination.” Because Brunt-Piehler’s general complaints of unfair treatment did not trigger protection from retaliation under Title VII, Brunt-Piehler’s retaliation collapsed.

Marion County, FL Employment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment lawyers in Marion County, Florida have fought for the rights of employment discrimination victims for more than twenty years. If you have experienced workplace discrimination or have questions about your protection from retaliation under employment discrimination law, please contact our office for a free consultation with our employment lawyers in Marion County, Florida. Our employment lawyers take employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.