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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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Hello, I did contract work for Bank of America between Sept

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Hello, I did contract work for Bank of America between Sept 2012 and March 2013. I impressed Senior Management so much that I was asked to become a full time employee in another department. I went through the interview process and was hired full time and started in April 2013. Approx two weeks after I started, my unit got a new direct manager. Within a few days, he begun to verbally harass me over a hearing problem I had. I asked for him to stop, he did not stop. I went to the Senior Mgr in the other dept who referred me to the full time position and she said she would escalate. In the following days back in my unit, I was told never to communicate in writing and that they would not accommodate moving me to work under another manager. Manager and I had a private meeting where with all smiles, he said he found out he could not get people fired that he didn't like (continued abuse.) We agreed to try to get along and that he would train me as it was his job. He neglected to train me. I complained to management and requested a transfer to another branch. They refused. I resigned because of major emotional distress and panic attacks. Upper mgt saw me in tears. I was awarded unemployment benefits due to my "good cause" explanation. I went to see a therapist. He said I should file for workman's comp due to my depressive stupor after moving closer to the department, and all the other life changes I had made to work at B of A for the rest of my life. I am now in therapy. I filed a workman's comp claim today. I know that I need to continue searching for work to keep unemployment benefits, and while my doctor says I need meds for the time being, that I can continue searching for work. This means I will not file for temporary disability for the workman's comp. I found out recently that no recruiter will talk to me about placement because of the short stint (3 mos) full time at B of A. If the verbal discrimination and abuse had never taken place, I would still be at B of A. I wonder if this is sufficient for a lawsuit against B of A for an emotional distress tort filing. Any advice you can give is warmly appreciated.
Good afternoon and thank you for entrusting me to answer your question. I am so sorry to hear about the mistreatment you endured at work. I have been there myself with unpleasant supervisors, so I can relate to what you are going through.

Regrettably, and contrary to what most people believe, there is no requirement of civility in the workplace and no law that prevents employers or co-workers from being rude, verbally aggressive, or even downright nasty. This behavior is only prohibited if it relates to an employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. In that case, the law does recognize a claim for "hostile work environment."

However, rude or hostile treatment for any other reason, despite being unprofessional and uncalled for, is not in violation of any law. Similarly, there is no law against "unfairness" unless the basis for such treatment is a legally protected trait. Supervisors can neglect to train and otherwise "set you up" for failure and, despite being extremely unfair and bordeline unethical, the law simply does not prohibit this sort of behavior.

Although the harassment you describe would not be legally actionable on a hostile work environment theory, a workers compensation claim is potentially viable. This is because in order to prevail on a workers compensation claim, the claimant need not demonstrate "fault" or that a legal violation was the cause of their harm. All a workers comp claimant needs to demonstrate is that they have suffered an injury that was inflicted from their work.

Be advised, however, that if your worker's comp claim is alleging a present inability to work resulting in loss of income, that will be contrary to what you need to show in order to collect unemployment benefits. Thus, your options are either to claim a present inability to work due to the emotional distress and anxiety caused by your previous position and forego unemployment benefits, or to collect benefits and limit your workers comp claim to past loss of income while an employee and any mental health treatment expenses you have incurred.

Aside from workers comp, the only other conceivable legal theory upon which you could recover damages is intentional infliction of emotional distress. However, historically these claims have faired rather poorly in the employment context, as they require the claimant to prove the employer's behavior "shocked the conscience" and "exceeded all bounds of human decency."

If you think you can convince a jury that the treatment you endured rose to this level, then perhaps this is an option worth exploring with a local attorney (See here to locate one: As I noted above, however, "IIED" claims traditionally do not fair well in the employment context and so this may not be litigation that is worth your time and money to pursue. It is, nonetheless, the only other potentially viable option under the circumstances.

In summary, there is no general law against harassment or unfair treatment in the workplace. These things are prohibited only if the basis for such treatment is a legally protected trait, such as your race or religion.

Aside from harassment/discrimination, your options are to file a workers comp claim (be careful not to make a claim that conflicts with your unemployment benefits, though) and to file for damages on the theory of intentional infliction of emotional distress. The latter cause of action requires you to show conduct that "exceeds all bounds of human decency," and that is a very difficult standard to meet.

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.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 4 years ago.

Thank you.


But if the basis for all this treatment was that he mocked sign language to me in front of other people, and I told him to stop, and he didn't (witnesses heard/saw him do it 2 more times) isn't that discrimination/abuse for a "disability"? Doesn't that fall under the same protected classes such as age and religion? I am not legally deaf, but told him day one of his starting to work in my unit that I was a little hard of hearing and if he ever felt ignored if he called to me from across the room, to know that all he had to do was ping or approach me versus asking for my attention 15 feet away because I can't hear anything coming from behind me.


It seems like I can't do anything about retaliation or being a jerk, but what set this all off was verbal harassment over disability. Just to confirm, is there no recourse under any type of filing since emotional distress seems to be so difficult to prove in the courts as you state?


I totally get it on the other info you've provided and will be Very careful with the workman's comp claim. I am filing for medical expenses only, not temp disability.


Thanks for replying one more time so I can rate to finish. Kind Regards, ee


Thank you very much for your reply. It's my pleasure to answer any followup questions you may have so please feel free to reply again if anything remains at all unclear.

Yes, physical disability is a protected trait under CA and federal law, which means a hostile work environment claim or discrimination claim can theoretically be premised on disability. However, in order for a "disability" to be legally recognized under the law, it must constitute a condition which "significantly impairs a major life function."

The is not a low threshold, and unless your hearing impairment is significant (i.e. requires the use of a hearing aid or other hearing device for the hearing impaired) is unlikely to trigger protection under the law.

By all means if you feel as though your hearing impairment rises to this level and you can link it to the treatment you experienced (which it seems you can), then you may have a claim on this basis.

To pursue it, you'd want to file a complaint with the Department of Fair Employment & Housing here: Otherwise, however, your recourse will be limited to the avenues I have described above.

Again, please feel free to let me know if I can provide any further clarification. It will be my pleasure to do so if necessary.

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