Your supervisor harassed you. You make a written complaint. a few days later supervisor gave negative review and recommends termination and loose the job.
Is there anything illegal about the harassment? or the fact that you made written complaint?
If harassment is not unlawful, then can it still be a protected activity? For retaliation, you should have undertaken a protected activity. So this is why I am confused.
Employment / Labor Attorney
Yes, those actions could form the basis of a retaliation complaint. The fact that you suffered an adverse employment action shortly after making a formal written complaint about harassment is pretty good evidence to support a retaliation claim.
Your employer might argue that you were going to be terminated anyway, i.e. that the decision was already made before you made the written complaint. Still, the fact that they gave you a negative review so soon after you made a written complaint tends to indicate retaliation.
Not that harassment is only unlawful if you are being harassed based on a protected characteristic such as gender, race, or religion.
What you are describing sounds like "retaliation" for making a complaint. An employer cannot take an adverse employment action against an employee for complaining about conduct the employee reasonably believes is illegal or prohibited by law such as discrimination or harassment based upon protected classes such as race, religion, gender, sexual orientation, military service, disability , etc.
A written complaint is often helpful in proving retaliation, but not absolutely necessary. In order for an employer to be held liable, the employer must be given notice of the complaint and often employers will deny the employee ever complained. Thus, written complaints or confirming witnesses are very important to proving your case.
Employment / Labor Attorney
As you have already seen from the other responses, it makes a difference what kind of harassment you are talking about. 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.
Taking adverse action due to a complaint regarding a protected basis is also against the law.
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 and harassment, how to enforce your rights, and time limits.
For more information about whistleblowers and their rights, please see my Avvo guide: http://www.avvo.com/legal-guides/ugc/whistleblowers-and-their-rights?published=true
If you believe the harassment you experienced was due to one of the protected categories, then you should consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope you can resolve your situation and wish you the best.
twitter.com/MikaSpencer *** 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. ***
Employment / Labor Attorney
The answers previously posted were good ones. Keep in mind that in cases like yours, the specific facts are extremely important. I recommend you speak with an employment attorney and go over exactly what happened. You may have been unlawfully terminated or not, depending on the facts.
Susan Keenberg, Esq.
Legal disclaimer: Information contained herein is not intended to and does not constitute legal advice nor does it create an attorney/client relationship.