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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12916
Experience:  Significant experience in all areas of employment law.
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I am curious if I have a case against my previous employer.

Customer Question

My name is ***** ***** I am curious if I have a case against my previous employer. He has been harassing me for some time now and I have called a few attorneys, but I have not heard back. I would like to pursue this further and just need some quick advice. I started this job back in November of 2014. After being there a few months my manager poked me in my side inappropriately and was insinuating that I was over weight. Ever since then he has talked down to me and belittled me and disrespected me as an employee on a daily basis. A couple months ago he did act again and I was so upset that I left work for the day. He texted me later that day apologizing and admitting to me that what he did was wrong. His verbal abuse continued even after multiple conversations between us of me telling him it was wrong. I also have made uncomfortable with his sexual comments he has told me about underage women in our store. He has left his loaded fire arm in our office on the desk for anyone to get to. I was fired a few days ago by the VP of our company after my manager told him some inaccurate information. I explained to the VP that my actions at work were a direct reflection of the harassment I had been facing. He knew nothing about my claims; even though I had reported them to my next higher up and was told it would be taken care of. When I told the VP what had been going on in detail and confronted my manager while we were all sitting down my manager didn't deny any of my accusation. In fact, he has since then been demoted for his actions. I was offered my job back, but decided I didn't want to work for company that would only want me there because they were being threatened to sued. Like I said before, I would just like to know if I have case. Thank you for your time.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

A legal claim for hostile work environment arises when an employer engages in unwelcome conduct relating to or motivated by a legally protected trait. Legally protected traits consist of such things as race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation . So, for example, making inappropriate sexual comments could give rise to a claim for hostile work environment based on gender, since gender is a legally protected trait.

It is important to understand that a claim only arises when the conduct relates to or is motivated by a legally protected trait. Other conduct, no matter how unprofessional, rude or disrespectful, is not against the law. There is no general "civility code" in employment. Harassment based on legally protected traits is the exception to this rule.

Poking you in the side and making fun of your weight in connection with inappropriate comments about woman in your store could give rise to a claim for hostile work environment. But it would be very difficult to tie the other behaviors to gender. General "disrespect" is not against the law. You'd have to prove it was occurring because you are a woman or due to some other legally protected trait, in which case it would be harassment motivated by a legally protected trait and potentially actionable.

It would be illegal to terminate you because you complained about illegal harassment (harassment based on gender), but it is unclear whether this is specifically what you complained about. More problematically, you indicate that you were not fired because you complained but rather due to inaccurate information related to the VP. It is not illegal to fire someone based on something that is untrue, since employment is at will absent an agreement to the contrary. You would have to prove that this stated reason for termination was merely a PRETENSE for terminating you due to your complaint about gender/sex harassment. Most problematically, though, you have been offered your job back but have refused to accept the position. This will disqualify you from collecting any sort of lost income, since you have voluntarily refused that income and plaintiffs always have an obligation to mitigate their damages. You would have to argue that the work environment was so completely unbearable that no reasonable person genuinely desirous of remaining employed would have done so, and that is a very high standard.

Without lost income, your only claim would be for emotional distress. Unless you have suffered a documented psychiatric injury (i.e. you have medical bills or have seen a psychologist), a claim for emotional distress is probably not worth very much.

In summary, there is potential for a claim based on sex/gender hostile work environment, but the damages are likely to be small. There are also issues with proof. If you desired to pursue such a claim, you certainly could by filing a complaint with the EEOC. This is a free administrative claims process, and there is generally not much of a downside by pursuing things this far. The EEOC will investigate and attempt to mediate a resolution (usually a monetary settlement) with your employer. That not forthcoming, they will either file a lawsuit on your behalf or issue you a "right to sue" letter, which will enable you to sue in civil court with the assistance of an attorney.

I hope that you find this information helpful. 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 moving forward.

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