California Employment Law
California Employment Law Questions Answered by Legal Experts
Hello and thank you for your question today
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Welcome to the chat
First, let me say that I am terribly sorry you are having to go through this. To properly respond to your question, can you tell me more about the treatment that you are having to endure? Specifically about any and all incidences where you believe the reason that you are being treated this way is because of a protected category such as your age (over 40), gender, race, religion, genetic information, pregnancy, national origin, creed, or disability?
Hello, yes I'm here thank you. I have a two-page document that will explain in greater detail the most recent incident. May I copy and paste, or attach?
Copy and paste would be bets
if you can
Ok, one moment.
You will likely have to do it in parts
Considering going to HR with this information, but am sure that some of it would be best left out. Would like to know, in your opinion, the most important details to include. There are other incidents and situations that aren't here, but I have just begun documenting.
Here you go:
Documentation regarding 7/4/13 walk-out, and subsequent written warning issued on 7/15/13.
Please give me a few moments to read through this.
Also, are you a part of a union?
Apologies, I pasted all of it before I saw your request to do it in parts. Please let me know if you need me to resend.
#2. should say chose to "CC" another coworker...
Important detail left out: I walked out on my job on the 4th of July out of complete frustration and the increasing stress she is putting me under.
And there is the added stressor that her husband is also a "Lead" in the same department, and has inappropriately touched me and made comments that are inappropriate in the workplace. I feel completely stuck, trapped, and like I have no recourse.
Okay, I think I have a pretty good understanding of the situation, though I may not have a lot of great news. The courts have made it very clear that they will not be the arbiters of claims of harassment unless that harassment is premised on a protected trait such as race or religion, reasoning that if workplace unfairness/harassment could form the basis for legal action, we would see thousands of such lawsuits every day. This is certainly not to diminish your concerns or complaints, but rather to explain the policy behind the law, which may assist with your understanding. That being said, you may have two things here which you could do. The first, is to make an argument that you are suffering a debilitating disability, as referenced by your need for FMLA leave. You could then state that you are being discriminated against because of your disability, or because of your request to take FMLA leave. Under these situations, you would be protected from any retaliation based on these reasons.
WAIT A SECOND
tell me more about that
he has inappropriately touched you?
Are the comments gender based?
sexual in nature?
Also, are there any witnesses to anything that has happened
Occasionally, yes. He has put his hands on my shoulders and "massaged" my shoulders. I was sexually abused at a young age and 'freeze' when things like this happen.
She has seen him in my workspace before, as have others, but he knows better than to do the massage in front of others.
Has he ever propositioned you or led you to believe that he was interested in more than just a shoulder massage?
I have also explained to her that I am diagnosed ADHD, and my workspace is not conducive to focused work, even for someone who doesn't have ADHD.
He has never made direct propositions, no.
I have some other verbiage outlining more details that I can cut and paste here also, that would probably provide a better view of the situation.
I have worked for the same employer for 10 years. My hiring supervisor retired in 2010, and a coworker was hired to replace her. I also wanted to apply for the position because I had made significant changes in our business processes, saved money, and was considered an exemplary employee. However, there was an "unspoken rule" that she was already chosen no matter who applied. Ultimately no one else applied for the job due to that "unspoken rule". Since her promotion and assignment as my supervisor, my workplace has become increasingly hostile.
My new supervisor's husband is a manager/lead in the same department, and has come up behind me in my workspace numerous times since she was hired, put his hands on my shoulders to "massage" me and engage in other non-work related and inappropriate chatter. I was sexually abused as a child and freeze when something like this happens. In this case I am especially fearful of saying anything for obvious reasons.
There was another employee in 2009 who made so many inappropriate gestures and comments I finally broke down in tears and reported it. Others had reported him as well, yet nothing has changed other than a reprimand to the offender. This situation has improved for me, but is always borderline and this man continues to test his limits with others.
My current supervisor has become increasingly "nitpicky" and calls me out for minor things like forgetting attachments, being 2 minutes late - as well as business practices my counterpart at our other location also performs routinely, yet has never been written up for.
On 7/4 shortly after my arrival I saw an e-mail from her that was CC'ed to another coworker, in which she caustically chastised me. I was so angry I told her I needed to leave and I did.
Admittedly I reacted impulsively and inappropriately, despite my anger and frustration at being called out in front a coworker for something my counterpart at our other location does routinely without incident. When I returned to work on my next scheduled work day (7/10)I took it upon myself to ask for my supervisor's time to apologize and take responsibility. She wouldn't let it go and kept telling me how immature and unprofessional it was, and that I abandoned my job. I agreed repeatedly that it was inappropriate, and repeatedly told her it would never happen again.
Today (7/15 at 3:30 p.m.) I was given a written warning, bypassing the initial verbal warning despite the fact this is my first infraction in 10 years and I sincerely XXXXX XXXXX her to apologize and take responsibility. When I asked why she chose to do this, I was told it is her choice as a manager. Okay, I agreed to take my lumps.
I have been an exemplary employee, have received awards and recognition even outside my organization, and truly loved my job. It is only since this person became my supervisor that I have felt I can't do anything right, have no recourse against her or her philandering husband, and am targeted for things that others aren't and previously had no effect on my performance.
Initially I spent sleepless nights blaming myself, thinking I must getting 'old', menopausal, worthless. I sought psychiatric help and was diagnosed with ADHD. I currently have FMLA status as a result. Her son has ADHD so I divulged this condition last year. She has increasingly criticized my every move since then. I thought there might be some level of understanding but it has only gotten worse.
Since turning 50 and disclosing ADHD to her, my life has been turned upside-down. There are many more egregious things I could list here, but there aren't enough words.
The reputation I've built over the last 10 years is being systematically tarnished. I have been waiting for another job opportunity within the same organization, but now I don't know if it's even possible to transfer to another department. I feel trapped and threatened.
This is what you sent to HR?
Or you wrote for the purposes of finding an attorney?
Sorry, no I am not part of a union because I am only one of two administrative assistants (FT/benefited) in this department. A vote was held last week, however, for the technician staff as they have endured years of neglect/unfair treatment and got tired of it. The environment in this department is so caustic. And it is made very clear to everyone that we are expendable, in words and in deed.
So the test that is used to determine if a hostile work environment exists due to gender is both a subjective and an objective test. If you informed him, or hr about the touchings and your desire for them to stop, then this could lead to a cause of action.
If, however, you never said anything to him, or to hr, then it may fail the objective test. Does that make sense?
So which occurred here?
There is no question in my mind that you are in a terrible working environment. The question now is to determine if it is a "hostile work environment" as defined under the law
I wrote this for the purpose of finding an attorney, if it comes to that. I really, REALLY don't want to go there but I don't know what else to do.
In terms of what I originally was going to say at the beginning, you have two basic causes of action in a situation like this. The first is an IIED claim (intentional infliction of emotional distress) where a person singles you out with the intention of causing you emotional damage. The second, is a hostile work environment claim, but in order to have this claim, you would need to show that you were being treated differently as a result of a protected class, or of you complaining about a protected class.
I have never said anything about him because his wife is my supervisor and - while I certainly should have - I haven't documented it. I've been trying to keep my head down and do my work hoping it will sort itself out, but can see now this isn't the best approach.
Unfortunately that is correct. In order to be protected there has to be some kind of formal complaint somewhere stating "complaint of discrimination based on sex" or "hostile work environment based on gender"
or something where you complain of what is happening and nothing is done or you are retaliated against
So it sounds like IIED is more appropriate based on documentation I currently have. What are typical outcomes for IIED claims? Would I be better off to 'keep it cool' and start documenting so I have more to present at a later date? Because I know it will happen again.
To have an IIED claim, you need to prove that 1) they are not just a bully, but that are specifically targeting you, and 2) that you have suffered "severe" emotional distress. Then, it would usually be around 2-5 times your medical bills from having to see a therapist, etc. due to the severe emotional distress you had suffered.
Okay. Should I avoid taking any of these complaints to HR until I have more documentation?
I am SO glad I decided to contact you through 'just answer'. This is so helpful!
If you don't think you can make an argument based on a protected category, then yes, as even if you made an IIED claim it would be against the individual and not the company
I am glad that I can get you pointed in the right direction.
If at any time you have any additional questions or need clarification on anything I have said, please do not hesitate to ask.
Much appreciated. It's good to know where I stand.
How do I contact you again if needed?
If you ever need to ask me questions again in the future, you can do so here:
Excellent. Thank you so very much.
If you would like me, and only me, to answer, then in your question, state, for BRANDON only
Alright. Will do. :)
Before you go, please do not forget to provide a positive rating so that I may receive credit for my time with you today. If you have any other questions please do not hesitate to ask.
And don't forget to have a wonderful rest of your day.
Oh yes, you will receive an Excellent rating. Thank you again Brandon.
and you as well
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