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A year ago I filed a sexual harassment claim against a co-worker.

He and I have the...
A year ago I filed a sexual harassment claim against a co-worker. He and I have the same boss, and he was fired as a result of my claim. My boss has been treating me badly ever since - excluding me from staff meetings, and insulting me over the phone and on email. The person who was fired was senior to me, and his job has been open for a year now. I have taken on a part of his workload, and have been asking my boss to review my job description and salary to reflect the fact that my job has expanded. She keeps putting me off. I feel I have no future for advancement under her, and that this is in retaliation for the sexual harassment claim.

I filed a retaliation claim with HR outlining my complaints. I just got a letter back saying my claim has been denied. In the wording of their response, I see how weaknesses in the wording of my claim allowed them to ignore some of the evidence they collected from other employees. The letter says that there is no appeal to this process.

Is it true that there is no appeal? If I spoke to a lawyer now to craft a more complete claim, could it be considered?
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Answered in 3 minutes by:
4/1/2013
Brandon, Esq.
Category: California Employment Law
Satisfied Customers: 1,953
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Verified

Employment-LawExpert :

Hello and thank you for your question today

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

There are two very different issues in the facts you have presented. First, there is what is allowed under your HR policy. Second, is what is required and allowed by law.

Customer:

ok

Employment-LawExpert :

Under your HR policy, there may be no appeal process. They may not allow any appeals in a situation like this. However, the law specifically prohibits any retaliation based on a complaint of discrimination. Thus, if you so choose, you would be able to file a claim with the EEOC or DFEH for retaliation which they would have to respond to.

Employment-LawExpert :

Does that make sense?

Customer:

yes, and the letter did say that I could file with those organizations

Employment-LawExpert :

If you link the treatment directly to retaliation (by showing that you have a stellar work record and would otherwise be treated better or receeve the position or a promotion) Then they would either have to compensate you both for the difference in pay and the damages, or possibly give you the position. So yes, if you spoke to a lawyer now to craft a claim directly related to retaliation, it would definitely make a difference.

Employment-LawExpert :

As long as you believe you have the facts to back up the allegation.

Employment-LawExpert :

So, for example, if you can show that your boss treating you badly is different than before, that may be enough for a successful retaliation claim.

Employment-LawExpert :

What exactly is your boss doing now that they were not doing before?

Employment-LawExpert :

For example, what is the worst example of insulting you over email?

Customer:

my boss is saying she will review my job status when the position left open from the sexual harassment claim is filled. It has been open for a year now, and it could quite a while until it is filled (the salary offered is very low). As long as she says she's willing to review my position in the future, does this negate my claim? This is how HR decided on it in their letter to me.

Employment-LawExpert :

So there are two separate claims of retaliation here. First, there is their negative treatment of you as a result of your claim. Second, is the failure to promote. While the first may be easily provable depending on the circumstances, the second would be much harder. If they did not give it to you, but gave it to someone else significantly less qualified, you would likely have grounds for a claim. However, failure to give it to you may have a number of legitimate reasons.

Employment-LawExpert :

For example, it could be because the position does not yet need to be filled. It could be because they have not yet made their decision, or it could be because they just haven't gotten around to it yet.

Customer:

My boss's behavior shifted toward me as soon as she found out I had filed the sexual harassment claim with HR. I went directly to HR, and not to her first, because she knew about, and had received multiple complaints about this person in the past, she never dealt with the situation appropriately. The worst conversation I had with her was her accusing me of violating our college's policy by going to HR with my claim, and her telling me I had to come to her directly with any problems in the future.

Employment-LawExpert :

Of course, proof that your duties drastically expanded, but not your salary, could be grounds to bring a retaliation claim simply because it would be proof that your treatment has been changed in a negative manner as a result of your complaint.

Employment-LawExpert :

I am terribly sorry to hear that you are in this situation. It is a shame when an employer decides to act in such a manner. You have not violated a company policy in any way. HR exists to protect companies from litigation such as this. Their entire purpose is to see where there is liability, and do what they can to try and protect themselves.

Customer:

Do I need a lawyer to file a claim with EEOC or DFEH?

Employment-LawExpert :

You did the right thing by going to them first. As to how to proceed from here is entirely up to you. It is fully within your right to make a claim for retaliation with a state or federal agency. In doing so, you will be protecting yourself from further actions. However, if you believe realistically that your boss will be willing to give you this position, then it may be better to have a conversation in a calm and positive manner where you tell your boss you really like your job, really like working there and wonder if there is any way that they would give you this position. As for needing a lawyer, I always suggest getting one as they will give you the best possible chance of succeeding. However, it is not required.

Employment-LawExpert :

When you file, you will need to make sure that you relate the actions to the sexual harassment claim and provide as much proof as you can.

Employment-LawExpert :

You will need to show the difference from before and after. Additionally, if you can show that no one else is treated in such a manner, it would go a long way to proving your claim.

Employment-LawExpert :

But again, it really depends on your exact relationship with your boss in terms of how to proceed from here.

Customer:

yes, one difficulty is she generally treats people badly

Employment-LawExpert :

Unfortunately, general bullying is not considered to be protected under the law. However, retaliating for a sexual harassment claim absolutely is. So, every thing in your complaint needs to point specifically to how you used to be treated, and how you are being treated now. That being said, because your boss is upset that you did not come to them first, you can definitely try going to them and explaining that you feel that you are doing a good job, and that you are taking on additional responsibilities and ask very specifically if they feel that you are not able to get a promotion due to the complaint that you filed. This may be in your favor if for no other reason than the fact that they asked that you come to them first.

Customer:

yes, I spent 6 mos. trying to have that conversation with her before filing the claim

Customer:

with no luck

Customer:

and all that was documented in my claim

Employment-LawExpert :

Then your next best option may be to file a claim and go from there. If you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with. Again, you do not need one, but having one will make sure that your claim gets filed properly with the best chance of success.

Employment-LawExpert :

But remember, you need to specifically tie everything you say into the fact that you made a complaint and specifically mention that you are only being treated that way as a result of your complaint.

Employment-LawExpert :

As long as you do that, and focus on the fact that the treatment itself is not actionable, but the retaliation as a result of the claim is actionable, then you would not need an attorney. But again, the choice is completely up to you.

Employment-LawExpert :

Does that fully answer your question? Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

Customer:

thanks so much for clarifying some of these issues for me. yes, I see now how my claim was worded vaguely, and left them room to sidestep some issues. They interviewed several other employees who supported my claim, but because my letter didn't specifically tie what they said to my claim, they were able to ignore some issues.

Customer:

yes, this has been very helpful. Thanks!

Employment-LawExpert :

That is unfortunately what often happens if they believe they can sidestep liability. It really is amazing just how different an outcome can be by just wording something slightly differently. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you. Have a wonderful rest of your day, and good luck!

Customer:

yes, thanks again!

Brandon, Esq.
Category: California Employment Law
Satisfied Customers: 1,953
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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