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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I received a poor review and a demotion yesterday. Before

Customer Question

I received a poor review and a demotion yesterday. Before the review i had been building a case against my superviser. She had bee sabatoging my work so that she could remove me from my position and hire her best friend.

Here statements in the review were vague an inaccurate. I have asked human resources to provide me with the policy on how to contest the review.

My concern is that she has a history of getting people out of the company that she does not like. It appears that the head of marketing is completely enthralled with her to the point of it being inappropriate.

I am in a protected class. I am 53 years old.

I exceeded the financial goals for my program by 71%, and also launched 3 more programs which all met their goals. She gave me a 1 for listening ability and said the only reason the program did well was that it was all her idea.

Do I have any recourse?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good morning Susan,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

While you may be over 40, and technically a member of a protected class, it is important to understand that the protection only applies to discrimination against you which is based on/motivated by your age.

Many people are under the mistaken impression that if they are not treated well at work, or if they are mistreated or berated by fellow employees, or by their boss, that as a consequence they are being subjected to a Hostile Work Environment, or that they are victims of discrimination. However, the US Supreme Court has weighed in on the subject, and ruled otherwise.

The US Supreme Court has held that harassment and hostile environment laws were not meant to create a code of civility within the workplace. The phrase “Hostile work environment" is legal terminology, and relates to discrimination which is federally prohibited—race, color, national origin, religion, sex, age or disability. Absent proof that the hostility you complain of relates to one of the prohibited acts of discrimination, then I’m afraid that you have little solid ground to stand on with regard to legal redress.

If you believe that your age, or some other protected class designation, is the motivating factor in your supervisors treatment of you, then there is something you can do.

CA law prohibits harassment and discrimination in the workplace and if this is happening to you, you do have a legal remedy.

Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it, and the employee regards XXXXX XXXXX as undesirable or offensive.


In CA you have two possible avenues of approach to dealing with discrimination. If your goal is to ultimately sue in Federal Court, then you will file a complaint with the EEOC, and if you want to be in the CA Superior Court---local to your county---then you will file with the DFEH and, if you want to, with the EEOC as well. You must file a formal complaint of discrimination with the EEOC within 300 days of the alleged discriminatory act, and within one year for the CA DFEH.


You may file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on the discrimination.

To do this you must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(NNN) NNN-NNNN or apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.

Alternatively, you may file a complaint with the EEOC (Equal Employment Opportunity Commission). If your company has 15 or more employees (the DFEH only requires that there be 5 or more employees), they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(NNN) NNN-NNNN EEOC website: www.eeoc.gov

Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex and Disability of an individual, with regard to hiring, promotion and firing.


After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180 days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.


You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug

 

Customer: replied 1 year ago.

Thank you for your detailed answer and links.


 


Our company policy states that there is a zero tolerance for bullying and sabotage.


 


Can I ask for a clarification on those policies from HR. Can I refuse supervision with my boss until my complaint that she is sabotaging my work is filled and complete?


 


I realize that this cannot be fought in court, but does the company have to respond to my internal charges?


 


Could I file for disability due to work place stress?

Expert:  LawTalk replied 1 year ago.
Good morning Susan,

You asked:

Our company policy states that there is a zero tolerance for bullying and sabotage. This will give you the right to ask that your company enforce their policy and to protect you from bullying/sabotage, but it does not result in you having a separate legal remedy through the courts to enforce that policy



Can I ask for a clarification on those policies from HR. Yes, of course you can. In fact, HR is the proper department to investigate your complaints. Can I refuse supervision with my boss until my complaint that she is sabotaging my work is filled and complete? Refusing supervision would constitute insubordination, and would be a proper ground to terminate you for cause. No, you can not do that with significant risk to your position.



I realize that this cannot be fought in court, but does the company have to respond to my internal charges? No, they are not obligated to respond---though one would expect that they would in some form or fashion.



Could I file for disability due to work place stress? If your physician finds that you are disabled by job related stress, and that stress is the result of actions taken by your employer/boss, then yes, you may file a workers' compensation stress claim.

 


You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested.

I wish you the best in 2013,

Doug

LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Susan. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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