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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33859
Experience:  Retired (mostly)
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I WAS CALLED INTO MY BOSSES OFFICE THIS PAST FRIDAY AND SHE

Customer Question

I WAS CALLED INTO MY BOSSES OFFICE THIS PAST FRIDAY AND SHE ASKED ME IF I HAD A CONFRONTATION WITH A FELLOW EMPLOYEE AND THE SAME PERSON SAID THAT SHE HEARD ME SAY ON THE PHONE TO MY CUSTOMER....SOMETHING LIKE SHE IS A BLACK SOMETHING...MY BOSS COULD NOT TELL ME THE EXACTLY WHAT SHE THOUGHT I SAID. I HAVEN'T SPOKEN TO MY ACCUSER IN APPROXIMATELY TWO AND A HALF WEEKS. I WENT TO SPEAK WITH THE HEAD OF OUR HR DEPARTMENT TO SEE IF I CAN BE TERIMINATED FOR THIS. I MUST TELLYOU THAT MY BOSS HAS ACCUSSED ME IN PRIOR MEETINGS IN HER OFFICE OF DIFFERENT SERCOMSTANCES....NOT BEING ABLE TO STATE WHAT A FELLOW EMPLOYEE HAS REALLY SAID. I FEEL LIKE I AM BEING SINGLED OUT FOR TERMINATION..WHAT RECOURCE DO I HAVE?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

Did you admit to your boss that you made a statement using the term "black," or some other racial-sounding comment?

Customer: replied 1 year ago.

Absolutely NOT!!

Expert:  socrateaser replied 1 year ago.
Okay, just checking.

Absent your having a good faith belief that your boss has an equally discriminatory motive towards you (i.e., that he/she is taking actions because of your race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation), then you cannot force the boss or any other management personnel to permit you to "face your accuser," because this is not a court action, and employers have no legal obligation to conduct fair investigations -- except where unlawful discrimination is charged. And, even in cases of unlawful discrimination, the employer owes a duty of fairness only to the complaining employee -- not to anyone else.

So, if you believe that you are now the subject of discriminatory treatment, as previously explained above, then you can file a complaint with the California Department of Fair Employment and Housing (DFEH), and they will get to the bottom of the issue, by conducting a fair investigation. Otherwise, the best thing you can do at this time, if you want to keep your job, is to just go about your work as if nothing had ever happenend, and maintain the position that you never said anything that was racially-charged to anyone.

Please let me know if I can be of further assistance.
Customer: replied 1 year ago.

I just wanted you to know that the head of HR is bringing in an attorney to interview everyone in my work space. He wants to get to the bottom of what is going on. I plan on not discussing the matter with anyone. But I know my boss is focusing on trying to eliminate me. You just said to just go on and do my job as if nothing is wrong..if I want to keep it. Are you saying that I really don't have any defense in my favor

Expert:  socrateaser replied 1 year ago.
Cal. Labor Code 2922 permits an employer to terminate/fire any employee at any time, for any reason, or for no reason at all.

The exception is where unlawful discrimination is present. Thus, your only defense would be to claim that you are the person being discriminated against. I don't know enough about you, the accussor or your boss, to determine whether or not you could create a plausible claim of discrimination, so as to turn the issue around on your employer.

But, unless you can figure out a means of doing so, you have no defense -- because the employer doesn't need to get to the bottom of anything in order to terminate you. The employer can terminate you for being the best employee who's ever worked for the company. Seriously.

As far as the employer bringing in an attorney to investigate things, I'll believe that when I see it. Attorneys cost serious money, even if they are in-house. It's practically unheard of to hire a lawyer to investigate a discrimination claim. An attorney may evaluate the evidence gathered after the investigation -- but not undertake an independent investigation.

Regardless, and while I understand your annoyance, you have got to wrap your head around the fact that the employer doesn't need to do any investigation to terminate your employment. The only person who has any rights in this type of circumstance is the employee who complains about discrimination. No one else has any rights at all.

Please let me know if you need further clarification.
Customer: replied 1 year ago.

How do I go about proving that I am the victim of discrimination? This is clearly what is happening to me. These ramdon attacks on me have repeadly happened over the past year...my boss has made repeated accusations to me about how other people perceive me in my work area...is less than steller. Thx

Expert:  socrateaser replied 1 year ago.
Please review this link from the DFEH.

Even if the DFEH determines that there is no discrimination, if you complain to your HR department that you believe you are being discriminated against by your supervisor, based upon one of the class-based reasons that I previously described (i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation), and after complaining to HR, you immediately complain to DFEH, then you are also protected, as a whistleblower, from further actions by your employer which appear to be retaliatory in nature (Cal. Labor Code 1102.5).

You need a good faith reason for your complaint (i.e., an honest belief that there is something more about your supervisor's conduct towards you that cannot be explained by mere personal dislike of you. Ironically, personal dislike by a supervisor does not violate the law. Only discrimination based upon class is actionable in court.

So, you don't really need to prove discrimination. You can show a pattern of negative conduct by your supervisor towards you, that cannot be explained by any reason other than discrimination.

It would be great if you had a "smoking gun" (e.g., an email with discriminatory language, or a witness who has heard the supervisor say something discriminatory about you). But, if you don't have it, then all you can use is what you do have, and if you complain to HR and then complain to DFEH, then further negative conduct by your supervisor would be retaliatory even if there is no discrimination iknvolved.

Hope this helps.

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