Diagnosing The Problem
Many of our intake callers describe discrimination or harassment at work. Sometimes there is little we can do. If the situation they are dealing with is merely a demanding or unreasonable supervisor, the law may not be able to assist. Someday soon, the legislature may prohibit severe bullying at work, but until then, it remains lawful. However, if the harassment you are experiencing is motivated by an expressed animus against a protected class, we may be able to help.
Illegal Harassment and Discrimination
We have previously posted both on our blog and on our other social media outlets, that harassing individuals on the basis of race, color, national origin, sex, religion, disability, pregnancy, and/or age (over 40) is prohibited by federal law. If you are a member of the LGBT community, your right to be accepted and free of harassment or discrimination in your workplace is protected in California, although federal protections still lag behind.
If you have already been fired, and believe it was for a reason that would violate one or more of the above protections, stop here. Call a lawyer immediately to discuss what your options are for recovering lost wages or other damages you may have suffered as a result of the potentially unlawful behavior of your employer.
When to Document
If you are still employed, and believe the environment is hostile for unlawful reasons, then keep reading.
How to spot harassment and discrimination:
- Harassment is connected to racial bias, religious animus, age, sexual preference or disability status; examples of protected activity would be:
- expressing your religious beliefs through your manner of dress
- having rebuffed an unwanted advance by a supervisor and complaining to HR
- failure to reasonably accommodate a disability
- repeated comments suggesting an employee is too old to do his job
The following is a checklist to follow to insure that you have protected your rights under the law if you are terminated or subjected to some other adverse employment action:
1) Keep detailed notes
Begin a diary. Make a note of the date, time and location of each incident. Record exactly what was said, details of the event, and the names of co-workers or other witnesses who overheard or participated in the discussion or event. These notes can be extremely useful for an attorney in ultimately proving someone was victimized under the law, and they form a strong record to support your case.
If you choose to keep a record on a computer, or mobile device, make sure it is one that belongs only to you. If this data is kept on company property, it may have to be left with them upon your termination. At that point it will only serve to provide defense counsel with a great set of talking points to defend against your litigation. It may also provide them first crack at your witnesses.
2) Retain your evidence
Keep any physical evidence of the unlawful behavior. If there are objects or pictures which were posted, left for you, or given to you in the workplace that you believe were discriminatory or harassing, hang on to them. Similarly, offensive material that has been left on your computer by a co-worker, can be captured with your smart phone. To preserve an inappropriate or suspect email, you might wish to forward them to a personal account. However, be aware that any company data contained within that email should be
Check your employee handbook to be sure there is no prohibition against removing company data, and be certain to exclude anything that is prohibited or proprietary in any materials you may remove from your workplace.
3) Report your complaints to the appropriate party
Let your employer know that you feel you are being discriminated against or harassed. Making a complaint as soon as possible is a critical step. If you do not let your employer know that the offender’s behavior is unwelcome, an employer may be able to avoid litigation. In many cases it is a necessary component to your case. If the person harassing you is your supervisor or the HR representative designated to receive such complaints, take your complaint up the ladder to a superior.
Note: If your immediate supervisor is the person you feel is being discriminatory or harassing, and you feel uncomfortable confronting him or her directly, report the matter to his or her superior or to a human resources representative. If he or she is the owner, or the only person above you to whom you can make a complaint, contact an attorney to help determine how to accomplish your duty to report.
4) Ask your employer to make a written record of your complaint(s)
It is important to put your employer on notice that you think your claims should be taken seriously. Ask that an investigation be made into your allegations. Request disciplinary or corrective action against the offenders. Employers are required by law to give prompt consideration to all reports of discrimination and harassment. If they fail to do so, contact an attorney.
5) Read your Employee Handbook
Read up on your employer’s policies with regard to anti-discrimination and sex harassment. Many employers provide materials on company policy during your course of employment. These guidelines can be useful to determine if your employer is aware of its duty to protect employees. They will show whether your employer has acknowledged to the workforce that it will not act in a discriminatory way. The presence of a written acknowledgment of those policies may serve to benefit your position. If you have a copy of the policy in a handbook or other handout, retain a copy.
Contact an Employment Attorney
If you are terminated, or have reached the point where the working conditions are no longer tolerable, call an employment attorney. Without assistance from a legal professional, it is unlikely that you would be able to sort through the complex laws which may apply to your situation. Generally, it is a good idea to retain an advocate to assist you when seeking to enforce your rights under the law. Attorneys are a dispassionate spokesperson who can remain calm throughout the process. Fighting discrimination or harassment can be stressful. Without an attorney there is no buffer between the victim and his emotions. Following these simple steps, and calling in help, is the best way to ensure that your voice is heard, and that you recover any damages to which you may be entitled under the law.
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117