If you’re experiencing harassment, discrimination or worse at work, it’s good advice to keep all relevant documents. But what if there aren’t any?
Some time back, I had a manager who was especially good at behaving badly. The manager would say and do things that were fairly blatantly against the law, but was excellent at avoiding a paper trail. Despite at least one complaint to human resources from a departing co-worker, as far as I know my manager escaped accountability for as long as we worked together.
At the time and for years afterward, I thought the lack of written evidence meant there was little I could do, particularly if I wanted to avoid retaliation. To my regret, I didn’t speak up. Fortunately, if you are in a similar situation, I was wrong: You have options — good ones. I talked to two Seattle-area employment lawyers and got their take.
Sara Amies, a partner at Seattle Employment Law Group, acknowledges that when bad actors don’t leave documentation, proving your experience can be trickier — “but that doesn’t mean that you can’t write it down,” she says.
Describe your concerns in an email to a family member or sympathetic co-worker, she advises: “That email, even if you send it from your personal email, is evidence.”
If you feel safe doing so, you might want to consider writing an email to your manager, saying, “Hey, it made me feel really uncomfortable when you …” If you prefer, you could write to your manager’s boss instead.
Amies adds that it’s a good idea to communicate your complaint to your company’s human resources office, if it has one. “Even if they do nothing, you’ve alerted them to it, which makes it easier to bring a retaliation suit,” she says. People don’t always recognize discrimination, but “everyone understands retaliation,” Amies says.
And anytime is a good time to bring in a lawyer, Amies says — “the sooner the better.” For one thing, a lawyer can help you craft your messaging regarding your concerns. A lawyer can also help you know whether you’ve actually experienced something that goes against the law.
“Everything that’s unfair is not illegal,” Amies cautions. “There are a lot of workplace issues that are not illegal but are merely unfair, and you can lose a lot of credibility” if you treat something that falls within the legal boundaries as an illegal act.
Alex Higgins, who has practiced employment law in Seattle for 25 years, echoes Amies’ advice to communicate with your boss, if you feel you can.
“What an employee can do if they’re brave enough is write to their boss and confirm what they heard,” Higgins says, adding that this puts you on record as objecting to your manager’s behavior. “Most people, I find, don’t do that because they’re afraid of their boss.”
Higgins also agrees that it’s best to document your situation with HR, and adds that doing so can help you in a retaliation suit.
If you don’t feel comfortable bringing your complaints directly to management, Higgins says, “Second best is sending an email to yourself at work that at least has a time stamp on it.” That time stamp is critical: It proves you have concerns about something at a given point in time, which prevents someone from claiming later that you just made something up after the fact.
You can also write handwritten notes or tell co-workers about your experience, Higgins says, but these approaches have drawbacks. Handwritten notes have no time stamp, so it’s hard to prove when you wrote them. And getting your co-workers to be witnesses is a particularly weak option: “They can decide they don’t remember,” Higgins says, adding that they’re employed by your company too and may be just as scared of retaliation as you are.
What Higgins does not recommend is doing nothing and hoping the bad behavior stops. And definitely don’t make secret recordings of your conversations with your boss, which can put you afoul of the law yourself. “In Washington state, [it’s illegal to tape-record a conversation unless both parties have consented,” Higgins says.