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Beware of Verbal Discrimination Complaints
08/11/2011
FLSA: Supreme Court Rules Oral Complaints Valid
An employee, Aziz, continues to complain about off color jokes during his staff meetings. He feels that
his colleagues poke undue fun at his religious head cover, but at no time puts his concerns in writing.
However, week after week, he calmly but directly looks his boss in the eye and reminds him that the
jokes are offensive and obviously a show of disrespect for him and his religion. Aziz is clear with the
boss that he feels uncomfortable in his job given the jokes.
The Wrong Response
At the end of the quarter, Aziz’s boss meets with HR to request transfer paper work for Aziz. He
mentions that Aziz has been complaining and would be happier on another project.
The boss believes Aziz is more concerned about his religion than staying on a prestigious project. While
discussing the move with HR, the boss also confirms that Aziz’s move within the company will result in
elimination of overtime and a change in Aziz’s hours. It appears that the transfer may be a good
solution to get Aziz to a more comfortable environment.
Aziz’s boss is pleased with the idea of transferring Aziz to a different project within the department. The
proposed transfer for Aziz will lead to a 7 percent cut in his salary, along with new hours that require
him to seek alternative care for his aging father. Is the organization on the hook if the boss and HR
allow the transfer to go through? Yes.
Even if Human Resources do not step in, Aziz has still gone on the record verbally about how he is
treated because of his religion. The boss has set up the organization for a retaliation charge from Aziz.
Therefore, the organization must step in to stop the potential costly chain of events.
FLSA Anti-Retaliation Provision
On March 22, 2011, the Supreme Court ruled that written and oral complaints are valid under the Anti-
Retaliation Provision of the Fair Labor Standards Act. While the written complaint is clear, the oral
complaint must also be “sufficiently” clear and detailed for an employer to understand it.
Therefore, the content of the complaint and the context of the complaint, even oral complaints, must

2. be clear enough to the receiving party; and such oral complaints are protected activities under Title
VII. In turn, oral complaints are actionable and Human Resources now must engage in the “he
said…she said” dynamic, which can play out in an oral complaint. The complainant says he complained;
the supervisor might claim no complaint was rendered.
Scaffolding of a Retaliation Case
In 2010, the EEOC had a record 99,922 complaints and recovered $404 million for victims through
mediation and other legal resources. In 2009, 36 percent of all complaints were based on retaliation.
Despite the simple steps to avoid retaliation, many employers unwittingly walk into this charge, just
like Aziz’s boss. The scaffolding of a retaliation case is as basic as 1-2-3:
1. An employee complains about their civil rights under Title VII; now oral complaints are valid.
2. Something bad happens to the employee status (demotion, transfer, layoff, termination).
3. With the adverse employment action, there is now a potential for a retaliation charge.
How to Avoid a Retaliation Case
With this recent update, retaliation charges will continue to climb, even though retaliation is often one
of the easier charges to validate. In Aziz’s case, he has been complaining, even if only verbally. His
boss also was initiating an employment status change, which would have resulted in a tangible loss of
overtime and a transfer to a less desirable project. But how can HR prevent a complaint of retaliation
when there is no paper trail?
First - Human Resources and/or the EEO/Equity Director of the organization should conduct or
coordinate quarterly trainings for the staff. Managers should be trained on how to recognize a Title VII
complaint, and learn not to take it personally to avoid a retaliatory action. While it might be human
nature for any boss/manager to avoid or distance themselves from a complaining staff member, such
human behavior can result in a retaliation charge. Once a complaint is launched, even if it is found to
be baseless, the complaint itself invokes Title VII protection for the staff member who complained.
Second - Many organizations have a progressive discipline policy with a verbal warning, written
warning and then a written warning with a promise of discipline. The verbal warning is often
documented in writing. Use this same model for oral Title VII complaints. When an employee verbally
complains about his or her treatment based on race, gender, age, religion, color or ethnic background
etc. Take it seriously and ask the employee to document the concern in writing. Writing often clarifies
the issue for all parties. However, whether in writing or not, the organization is still responsible.
Third - Update all policy manuals to reflect these changes in the Title VII policy. Insure that all staff
and managers stay up to date on dynamic legislative changes. As the HR staff revises the policies,
consider a policy change that recommends HR oversight of employee status changes, especially
changes, which result in termination. All too often, HR is only called to the table once a manager has
decided to fire, demote or transfer a staff member. Instead, HR should be empowered to be at the
table to PROTECT the organization from itself when it is about to make these costly and litigious
mistakes.
A Peaceful Conclusion
In this case, Aziz’s employment record showed that he was the most productive member of his team.
Aziz was not transferred. In fact, Aziz didn’t even learn that a transfer was considered. Instead, HR
stopped the transfer and engaged the whole department in a series of diversity and EEO rules training
with particular education for managers and supervisors within the organization.
Lastly, HR spoke with the boss directly and explained the Title VII rules. If Aziz filed retaliation charges,
it not only would reflect poorly on the organization but Aziz’s manager could be personally liable as
well. While the transition to a more supportive environment took a few months, it was far less painful
and less costly than receiving a letter from the EEOC or Aziz’s attorney because Aziz felt violated after

3. complaining about his civil rights.
Regards,
Leah Hollis, Ed.D.
President, Patricia Berkly LLC
Dr. Leah Hollis is President of Patricia Berkly LLC, a diversity training and consulting group in greater
Philadelphia. Dr. Hollis is a noted educator, researcher, and lecturer. She has taught at Northeastern
University, the New Jersey Institute of Technology, and Rutgers University. Dr. Hollis received her
Doctorate of Education in Administration, Training and Policy Studies from Boston University. She
continued her professional training at Harvard University through the Graduate School of Education,
Higher Education Management Development Program. She also earned certification in Project
Management and Executive Leadership at Stanford University and Cornell University, respectively. Her
newest book is titled “Unequal Opportunity”
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