My boss is assigning me back to a schedule where I have to work with my harasser. I do not know if they are doing this to me to make me give up and quit. This harasser is an old man bullying me and harassing me based on my sexual orientation which includes gossiping, sarcastic innuendos, banging objects in my presence, etc. We almost get into a fight last year because he was calling me "[email protected]*t", etc..
Can I bring with me a pen spy camera to monitor him in case he do something against me so I can use it as a matter of evidence? I am in the state of California. The place I work has company installed surveillance camera.
I complained about this to the HR several months ago but she did not take it too seriously maybe because I do not have an evidence or proof nor someone to testify for me.
As you have already learned, it is illegal and unwise to make the recording you describe. Instead, keep a log of any comments, adverse actions or other funny business, starting with the day the first inappropriate comment or adverse action took place. Write down the date, time, what was said or done, who said or did it, and any witnesses. Be sure to include any complaints you made to HR, your boss or anyone. Keep your log at home, not at work, because you never know what will disappear. The best logs describe facts, not opinions. For example:
This is a good log entry because it describes facts: 02/14/2014 2:30 p.m. Margaret Vader said to Enrique Lopez "See that guy over there? He's a @#$." I was standing less than five feet away when she said this. Also within earshot were Alice Anderson, Benay Banquette, and Candice Crzmik.
This is not a good log entry because it describes opinions and supposition: 02/14/2014 2:30 p.m. Margaret tried to piss me off because she's a bigot and she hates me. She told Enrique I'm a @#$. Lots of other people heard it too.
You should understand the law, as this will help you focus your log. 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. An employer is required to provide a workplace free of unlawful harassment.
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 you haven't already reported this situation to HR, do so now. Do it in writing, including entries from your log. Include a specific request that HR take action to make these comments stop and to protect you from retaliation. Date and sign your letter, and keep a copy of it at home in case you need it.
If HR does nothing or if the comments do not stop, then I suggest you speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation.
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.
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 there is a good resolution to this situation.
* * * www.thespencerlawfirm.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 must not be taken as legal advice. Legal advice must pertain to specific, detailed facts which are impossible to gather on a public web site like Avvo. * * * No attorney-client relationship is created based on this information exchange. * * *
No. Don't do it. Recording a private conversation, without the knowledge of all parties is a criminal offense in California and you can be sued by the individual you are recording. You may also be fired for it. Furthermore, the recording will likely not be permitted as evidence to support your case. As good as your intentions may be, it is safer for you to write down everything that was said and note who may have witnessed the statements. A copy of your notes should then be turned over to the company's designated person responsible for addressing sexual harassment complaints, per the company policies and procedures. If you do not trust your employer to investigate and take corrective action, seek the assistance of an employment law attorney in your area.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
California Penal Code section 632 makes it a misdemeanor and a civil offense to audio record another without their knowledge when they have an expectation that the conversation is a private one. While it is rarely prosecuted as a crime, the statute does two things that should create a big disencentive to you doing this. First, the person being secretly recorded can sue you and get $5,000 for each time you record him. Second, the statute provides that the recording cannot be used to prove ANYTHING except the fact you recorded him. Therefore the purpose for the recording is removed.
Some of what you describe is inappropriate harassment based on sexual orientation - a protected classification. Keep a journal of each and every event with date and time notations. Be specific.
Once you believe you can establish that this conduct is severe or pervasive, locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
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