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Is it concendered harassment when a manager has something negative to say to or about you every shift you work

London, KY |

I started work at a fast food chain from day one, one manager seemed to pick me out every shift and get me in front of other employees and customers and try to belittle me this went on for the next couple of months so about 2 weeks ago I came in to help out on my day off I was there about 2 hours when this manager came in 5 minutes hadn't went by until he started I told him the way he talked and treated me was making uncomfortable and stressed that I wanted the head managers phone number to contact and resolve this issue he refused and then told me he did not like me and he would continue to stay on me until I quit or he could come up with a reason to fire me I told him I felt like I was being discremanted against and harassed he told me to go home

Attorney Answers 2

Posted

No, it is not harassment or hostile work environment, and nothing else actionable under the law. The manager was well within his rights to fire you.

You have also offered no facts as to discrimination. The only unlawful discrimination in the work place is that which is based on race, religion, age, ethnicity, gender, sexual orientation, familial status and disability--these are the only categories of unlawful discrimination. Even then, it is a high burden to meet with evidence. A court will not entertain hearsay, hunches, conjecture or speculation. For a lawsuit based on discrimination, you would have to first file an claim with the EEOC. If they find evidence of discrimination, they will give you paperwork akin to permission to sue. This is only for discrimination claims.

Other than the above categories, discrimination is allowed.

We do not have an attorney-client relationship. I am not your lawyer. The statements I have made do not constitute legal advice. Any statements I have made are based upon the very limited facts you have presented, and under the premise that you will consult with a local attorney. This is not an attempt to solicit business. This disclaimer is in addition to any disclaimers that this website has made. I am only licensed in California.

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Posted

This sounds like really bad management and a lousy job, but not like the employer is doing anything illegal – at least not on the surface. It may depend on the nature of the critical remarks. If the remarks disparage your race, sex, disability, age (40 yrs. or older), accent, etc., then you may be able to pursue a claim.

First,, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

Unlawful harassment is a form of discrimination. To be unlawful, the harassment must be must be based on a protected category, such as race, sex, religion, disability, age (40 and over), pregnancy, or genetic information. Harassment is also illegal if it is based on whistleblower status, taking or needing family leave, or some other protected category.

Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity, or indication of stereotyping. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings.

Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive.

If the boss' comments fit with the above description of harassment, you can pursue a discrimination complaint. Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&permalink=what-is-unlawful-employment-discrimination--california-law which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits.

Even if there is no legal action you can take, you should report these events to human resources (HR) or higher management, especially if the one giving you the hard time is not the same one who hired you.

Keep a log of any comments, adverse actions or other funny business, starting with the day the first adverse action took place. Write down the date, time, what was said or done, who said or did it, and any witnesses. Do the best you can with anything that took place in the past. Keep your log at home because you never know what might disappear if you leave it at work. And HR may need this information to investigate your complaint.

(continued in Comment below)

@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.

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2 comments

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

(continued from Answer above) Now with a better understanding of your limited legal rights, think about a strategic solution instead. If you have not (yet) been fired, try hard to prevent that; convincing an employer to reverse an action already taken is difficult. Consider tackling this directly, professionally and respectfully. Understand the boss may have misunderstood something that happened or perhaps felt there was something wrong with your work but never told you. Ask to speak with the boss in private, or perhaps in the presence of HR. Ask if you’ve done something indicating you are a poor worker or if the employer thinks you were responsible for something that happened. Maybe something was misinterpreted, though probably not. But if so, you can explain your side. More likely you will never know what is really going on. However, a mature conversation may change the way the employer treats you. Whatever you do, don't challenge the employer’s authority. Indicate you want to continue your working relationship and value your job. Explain you care about doing a good job. Mention your good work record if you have one. Explain you would never intentionally do anything against the company's or your boss' interest. Do not blame anyone else even if you believe someone deserves it; this cannot help you. Only talk about yourself, that you want to do a good job, and you regret the situation. Ask what you can do to improve things for the future. Don't give anyone a reason to get angry. Your boss or the company may see you more favorably after this. I know it's annoying to have to do this when you didn't do anything wrong, but remember, an employer doesn't need a reason to fire you. And as we all know, the current economy is tough and jobs are hard to come by. Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place. I hope you can resolve your situation and wish you the best.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I gave you an incorrect link above. You are not a California worker so the link to at-will employment I should have given you is this one: Please look at my Avvo guide to at-will employment which may help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. Also, the link to my guide on discrimination was for California employees. This is the link I should have given you: Please look at my guide to unlawful discrimination: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--federal-law?published=true which should help you understand lawful and unlawful discrimination, how to pursue a claim and time limits.

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