Harassment and Employment Discrimination

1. How can I protect my right if I am subjected to unlawful harassment or discrimination?
  
General "harassment", like yelling, screaming, demeaning language, or unfair workload, is not "unlawful" if based merely on a personality conflict. Such conduct is only illegal if the harasser is motivated by animus against you based on some protected characteristic or classification. For example, if your supervisor makes racially or sexually offensive comments, or if he/she demeans and belittles you, but does not harass younger workers, those of a different gender, or of other races, you may have a harassment case. If, however, your boss treats everybody poorly, regardless of their race, sex, or age, you might not have a case.

It is also important to realize that only "unwelcome" harassment that is sufficiently severe or pervasive to create a hostile or abusive work environment is unlawful. Therefore, trivial, isolated or sporadic harassment, even if based on some protected classification, would not be illegal. As a rule, the more severe the incidents (i.e., physical contact is more severe than mere offensive language) the less frequently they need to happen before the law is broken. If less severe, the harassing conduct must be regular or constant. Also, since only "unwelcome" harassment is illegal, you must make it clear to the harasser that you find his/her conduct unwelcome and offensive.

If the harassment is perpetrated by a co-worker, rather than a supervisor, you will usually need to show that a supervisory employee knew or should have known of the problem, but nevertheless failed to take action to correct it. Therefore, if the offensive conduct continues after you have told the harasser that you are offended, you should:

• Report the conduct to your supervisor.
• Document all contact with the harasser and any supervisor whom you informed of the problem.
• If the harassment persists, file a formal, written complaint with your company's Human Resources department.
• If the harassment still persists, contact the Law Offices of Edward A. Torres or another attorney of your choice.

2. What types of discrimination and harassment are illegal?
 
Not all discrimination and harassment are protected under the law.

The general rule in California is that an employer may fire you for any reason, even an unfair one, or for no reason at all. This is called the “at-will” employment rule.

EXCEPTIONS to the “At–Will” Rule include:

• Discrimination because of your Race, Sex, Age, Religion, National Origin, Handicap, Physical or Medical Condition.
• Retaliation for complaining about unlawful harassment, discrimination or any other illegal activity.
• Express Contract: The "At-will" rule will not prevent you from recovering if you have a written or oral agreement with your employer which states that you will not be fired without good cause.
• Implied Contract: You may also recover if enough of the following factors are present in your situation:
  • Long-term employee
  • Consistent good evaluations
  • Received raises
  • Received assurances of future long-term employment
  • Employer violated it’s own progressive discipline policy in firing you

Common Questions on Employment Issues:
  
1. What should I do if I am fired?

• Ask your employer to put the reason for termination in writing.
• Ask to review and copy your personnel file
• Contact an Attorney