STUART ALTERMAN
22 NEW JERSEY COPS ■ JULY 2017
Are you complaining to the right person?
If a law enforcement officer was the victim of discrimination in the workplace, do you know with whom he or she should lodge a complaint to get the best results? Instead of discrimination, what if the law enforcement officer was the victim of harassment in the workplace or a hostile work environment in the workplace or retaliation in the workplace? Do you know with whom he or she should lodge his or her complaint to get the best results?
Some people might answer the above questions as“ the chief of police of my department” or“ the warden of my facility.” Others might say“ the Internal Affairs unit of my police department” or“ the Office of Professional Standards of my facility.” Still others might answer“ the EEO( Equal Employment Opportunity) officer, the human resources officer, the mayor, the business administrator, county counsel or the supervisor in my chain of command.” Which is correct? Are they all the same?
You would think that any of the above choices should accomplish the same results. Unfortunately, what you think and what is reality are two different things. Different people have different agendas. Different departments have different roles. Different titles carry different responsibilities. The choice of the person with whom a law enforcement officer lodges his or her complaint is vital to trying to improve his or her life at work.
However, before a law enforcement officer makes such complaint, he or she should first ask himself or herself one question:“ What am I looking to accomplish?”
A law enforcement officer needs to know whether he or she is interested in filing a lawsuit over the harassment, discrimination, hostile work environment or retaliation. If he or she is so interested, then the first call that he or she needs to make is to a civil attorney. Anything that a law enforcement officer puts in writing or says in an interview is“ on the record.” That means that any civil attorney is stuck with anything put in writing or contained in a transcript or on an audio recording. Thus, a law enforcement officer could become his or her own worst enemy by saying the wrong thing or wording the complaint in the wrong way. Unwittingly, the law enforcement officer could torpedo his or her own claim before it can even begin to gain traction.
Consultation with a civil attorney before complaining does not mean that the law enforcement officer has a lawsuit, is going to file a lawsuit or even wants to file a lawsuit. However, that consultation with a civil attorney could provide the law enforcement officer with pivotal information such as whether he or she should immediately file or wait to file the complaint, with whom to file the complaint, how to word the complaint, what not to say in the complaint, and most important, how not to undermine other available options.
Unfortunately, not every law enforcement officer wants to see or will see a civil attorney before filing a complaint. Even in the absence of legal consultation, there are still some basic guidelines to keep in mind when lodging a complaint of discrimination, harassment, hostile work environment or retaliation.
Officers’ Rights
First, never complain to anyone of an equal or lesser rank. Under the law, anyone of equal rank or lesser rank has no legal responsibility when it comes to addressing any complaint. Additionally, under the policies of most employers, anyone of equal rank or lesser rank has no responsibility to report a complaint, investigate a complaint, rectify a complaint or follow through on a complaint.
Second, be careful of complaining to someone merely because he or she is a supervisor or superior in rank. Under the law, someone of greater rank or someone in a supervisory capacity does not necessarily have legal responsibility for reporting a complaint, investigating a complaint, rectifying a complaint or following through on a complaint merely because of that rank or supervisory authority. Under the policies of most employers, anyone of greater rank or anyone in a supervisory capacity does normally have a responsibility to report a complaint, process a complaint and / or investigate a complaint. However, just because someone is given such a responsibility under a policy does not mean he or she will accept or embrace that responsibility. People are human. Some follow up, and some follow through, but some do not.
Third, know the responsibilities of the unit or department to whom you are complaining. The Internal Affairs unit, the Office of Professional Responsibility and / or the equivalent in your department and / or facility are not necessarily interested in investigating whether a law enforcement officer is the victim of discrimination, harassment, hostile work environment or retaliation under the law. Instead, each may be tasked only with determining whether there were violations of departmental rules and regulations.
Likewise, the EEO officer or department is only interested in whether there was a violation of New Jersey’ s Law Against Discrimination( LAD). Under the LAD, discrimination, harassment, hostile work environment and / or retaliation is only illegal if it is“ because of” what is known as a“ protected category.” The only“ protected categories” currently recognized by the state of New Jersey are the following:
• Race
• Creed
• Color
• National origin
• Nationality
• Ancestry
• Age
• Sex( including pregnancy)
• Familial status
• Marital status
• Domestic partnership or civil union status
• Affectional or sexual orientation
• Gender identity or expression
• Atypical hereditary cellular or blood trait
• Genetic information
• Liability for military service
• Mental or physical disability
• Perceived disability