Best Employment Discrimination Attorney Answers: Is it ok that my employer does not have a written anti-discrimination policy? My boss is discriminating against me and harassing me – what can I do? Am I protected from discrimination even if my job doesn’t have an anti-discrimination policy? Who do I report workplace discrimination to if there is no HR? Can My Job Not Have An Anti-Discrimination Policy?
As lawyer who works in the
legal field, I do a lot of reading. In fact, our employment discrimination
attorneys spend the majority of our day either reading or writing. That doesn’t
really bother me because I love to do it. Reading has always been a passion of
mine. I would ask for books for my birthday, Christmas, basically every chance
I got. However, there was one thing I was never a fan of reading, boilerplate
contracts! Things like the Apple user agreement, or the Amazon terms and
conditions of service (P.S. You really should read these, they discuss
important legal rights). Most employees feel the same way about their employee
handbook. Just like the Amazon terms and conditions, your employee handbook
contains important information regarding your workplace policies, such as
vacation time, call off policies, and contact information for Human Resources.
One of the most important
policies an employer can have is an anti-discrimination policy. A good
anti-discrimination policy should include an explanation of an employee’s
rights under Federal anti-discrimination law under Title VII and any relevant
state anti-discrimination law. In case your employer’s anti-discrimination
policy doesn’t include this information Title VII, and in Ohio, R.C. §4112
makes it illegal for an employer to discriminate against an employee on the
basis of race, gender, pregnancy, national origin, disability, religion, or military status. Further, a good
anti-discrimination policy will include a description of what kind of conduct
is not prohibited in the workplace. Of course, as employment attorneys we have
countless examples of behavior employers should not allow. (See Race Discrimination: Using The “N-Word,” Even Once, Can
Create A Hostile Work Environment; Can I Sue My Employer If My Boss Calls Me A Lazy Stupid
African? Best Lawyer Reply!; Racial Discrimination: Defendant Who Argued That The Term
“Nigger” and “Monkey” Not “Slurs But, Rather, As Terms Of Endearment”
Shockingly Loses, Pays Large Sum Of Money, My Racist Boss Says “Nigger,” “Wetback,” “Wagon Burner,”
& “Beaner” All The Time! I Need A Lawyer! and Race Discrimination: Minority Bosses Cannot Use N-Word Either).
Additionally, a good anti-discrimination policy should have an explanation of
how to file a discrimination complaint and who to report a discriminating
manager or supervisor to. The policy should include things such as who to file
the complaint with, how the company will investigate the complaint, and what an
employee can expect to happen if they file a complaint. Finally, a good policy
will explain that an employee will not be punished for filing a complaint, and
the protections the company offers to prevent retaliation. Even if it is determined that there
was no discrimination at all, it is still unlawful for an employer to retaliate
against any employee reporting or participating in an investigation into
reports of discrimination. (See Can
I Be Fired For Reporting Discrimination To HR?; Fired
In Retaliation For Reporting Sex Harassment?).
A decent (but certainly not
perfect) anti-discrimination policy usually has language similar to the following,
found at nonprofitinclusivness.org.
[Employer] does not and shall
not discriminate on the basis of race, color, religion (creed), gender, gender
expression, age, national origin (ancestry), disability, marital status, sexual
orientation, or military status, in any of its activities or operations. These
activities include, but are not limited to, hiring and firing of staff,
selection of volunteers and vendors, and provision of services. We are
committed to providing an inclusive and welcoming environment for all members
of our staff, clients, volunteers, subcontractors, vendors, and clients.
[Employer] is an equal
opportunity employer. We will not discriminate and will take affirmative action
measures to ensure against discrimination in employment, recruitment,
advertisements for employment, compensation, termination, upgrading,
promotions, and other conditions of employment against any employee or job
applicant on the bases of race, color, gender, national origin, age, religion,
creed, disability, veteran’s status, sexual orientation, gender identity or
Somehow, as we move forward
into 2020, not every company has an anti-discrimination policy. Frankly, this
blows my mind. As you can see from the example above these policies are not
super complicated to write, and they can do a lot of good. Anti-discrimination
policies serve to put potential discriminators and harassers on notice that
their conduct is not ok, and it lets the employees know that their rights are
protected. At the very least an anti-discrimination policy will let an employee
know what their rights are.
If an employer thinks that by
not having an anti-discrimination policy, they are off the hook for potential
discrimination lawsuits they are sorely mistaken. If these employers need an
example of what can happen without an anti-discrimination policy, they need
only look at the case of Hubbell v. FedEx SmartPost.
Sheryl Hubbell worked for FedEx
as a Package Sorter from September 2006 to December 2014. In 2010, Hubbell was
promoted to Lead Package Sorter, a minor supervisory position. In February or
March of 2011, Todd Treman took over as Hubbell’s new “Hub Manager.” As is
often the case when a new manager comes to town, trouble follows soon after. In
August 2011, Treman asked for a one-on-one meeting with Hubbell. In that August
meeting, Treman suggested that Hubbell demote herself to an administrative role
because he thought “that females are better suited to administrative roles and
males are better suited to leadership roles.” For an approximation of my eye
roll upon reading this click here. Just in case you are confused at
all, yep, that is direct evidence of gender discrimination.
Then, in January 2012 Treman
had another meeting with Hubbell where he again asked her to step down into a
lower position. Treman even told Hubbell to “take the demotion, and if [she]
didn’t, things would continue to get harder for [her].” Excuse me!? Hubbell
responded by telling Treman that she did not want to step down. Good for her! After
this meeting in January 2012 Treman, true to his word, began finding ways to
make Hubbell’s life at work harder. Low-performing workers were placed in
Hubbell’s area or in order to make Hubbell look bad. Treman also refused to
give Hubbell enough workers to complete her tasks. Things got even worse in the
peak season. During the busiest time of year Treman gave Hubbell multiple,
conflicting work assignments, Treman would then criticize Hubbell for failing
to complete all of these assignments effectively. Then, in July 2012, Hubbell
was given her first written discipline in her six years of working at FedEx.
This was followed by another write up in September 2012. Later in that year,
Hubbell was given her first poor performance review. Hubbell did the right thing
and contacted her Human Resources department to complain about the unfair
treatment. Unfortunately, Hubbell’s HR department did nothing about her report
of sex discrimination. Fed up, Hubbell filed a charge with the Equal Employment Opportunity Commission (“EEOC”). (See Top Employment Law Attorney: Do Not File
With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call
The Right Attorney; Should I Get A Lawyer To Help Me File An
EEOC Charge?; and Should I File With The EEOC On My Own?
Call The Right Attorney).
After Hubbell filled her first
complaint FedEx began watching her more closely and even went so far as to tell
their security guards to keep an eye on her. This drove Hubbell to file a
second charge for retaliation. Finally, in 2014, Hubbell filed a lawsuit
In an attempt to defend their
conduct, FedEx claimed that they had an anti-discrimination policy and that
their managers had been trained not to discriminate. FedEx also argued that
their anti-discrimination policy had provisions that discussed how to file a
discrimination claim, and how FedEx would investigate any discrimination claim.
The Sixth Circuit Court of Appeals discussed the policy, holding:
Several of Hubbell’s managers testified that FedEx had an
anti-discrimination policy and that they had been trained on this policy.
Jessica Benjamins, FedEx’s corporate Human Resources manager, also testified as
to FedEx’s anti-discrimination policy. She testified that FedEx conducts annual
online “diversity inclusion training” for managers. And, she testified that it
has long been FedEx’s policy not to discriminate. But, FedEx only promulgated a
specific policy on non-discriminatory hiring and promotion on November 26,
2013—after Hubbell was demoted and filed her first EEOC complaint.
It appears that FedEx’s lack of
an anti-discrimination policy may have played a part in the jury’s decision in
finding for Hubbell. One of the questions asked to the jury was whether Hubbell
had shown that FedEx “engaged in discrimination or retaliatory practice with
malice or reckless indifference to [her] federally protected rights.” The jury
answered “yes” to this question. The next question asked to the Jury was
whether FedEx had “shown that it made a good-faith effort to comply with the
law prohibiting gender discrimination.” After some deliberation, the jury
answered no. While we may never know for sure it would not surprise me to find
out that the jury thought that by not having an employment discrimination policy
FedEx acted with reckless indifference when they discriminated against Hubbell.
Hopefully, FedEx learned their lesson and keeps their anti-discrimination
policy around, or they may end up paying for it, again. In this case, the jury
awarded Hubbell $85,600 in combined front and back pay, $30,000 in
“non-economic damages,” and $403,950 in punitive damages.
Discrimination and harassment
based on race/color, religion, gender/sex, national origin, age, disability discrimination, and military status is illegal federally, and
under Ohio law, even if your workplace doesn’t have an anti-discrimination
policy. If you have been discriminated against based on your race, color,
religion, sex, military status, national origin, disability, age, or ancestry
you should not wait to call the right attorney to schedule
a free and confidential consultation. Call our Cincinnati attorneys
at (513) 818-3688.
Call our Cleveland attorneys at (216) 291-4744. Call our Columbus attorneys at (614) 335-4685. Call our Toledo attorneys
at (419) 960-5926.
At The Spitz Law Firm, you will meet with one of our experienced employment
law attorneys to find out what your legal rights are and the
best way to protect them. Discrimination based on a protected class is illegal,
and employers should be held accountable even if they don’t have an
anti-discrimination policy. It does not matter if you have been wrongfully
fired or are still employed, there is no reason to wait to find out what your
legal rights are and how to protect yourself from harassment and
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