How To Deal With Unfair Treatment At Work

All employees expect to be treated fairly by their employers and supervisors. When an employer treats an employee unfairly at work, it may be discrimination involving illegal discrimination and harassment based on protected characteristics such as disability, age,t gender, national origin, ethnicity, age, or race.

By Brad Nakase, Attorney

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Table of Contents

1. How do I know if I’m being treated unfairly at work?

2. What is the difference between workplace discrimination and harassment?

3. What Are Protected Characteristics?

4. What Are Protected Activities?

5. What is considered harassment in the workplace in California?

6. How do you prove workplace discrimination and harassment?

7. What can an employee do about an unfair treatment at work?

How do I know if I’m being treated unfairly at work?

Examples of unfair treatment at work includes an employer firing, discharging, dismissing, transferring, demoting, or reduce working hours without a fair, disciplinary process. It is unlawful for employers to take any of these action when motivated by the employee’s protected characteristics such as disability, age, gender, national origin, ethnicity, age, or race. Every employee expects to be treated with fairness and respect by their employer.

Many unlawful unfair treatment at work based on protected characteristics and protected activities can manifest in various forms of discrimination and retaliation. The following are some examples of negative actions:

Denying a Job
Denying a Promotion
Denying a Training Opportunity
Providing Unequal Payment
Providing Unequal Working Conditions
Unfavorable Job Transfer
Demotion
Denying Benefits
Termination

The above are just examples of unfair treatment at work on protected characteristics and activities. Employment laws protect individuals from such actions and provide mechanisms for employees to address and seek remedies for unlawful discrimination or retaliation.

What is the difference between workplace discrimination and harassment?

When employees experience unfair treatment at work, they should take a deep breath and take stock of the facts. Stress fills the workplace, and unfair treatment by coworkers or supervisors can quickly increase stress levels. However, keeping a sound mind when dealing with workplace problems is important.

It helps workers ask themselves questions to make logical sense of what occurred and document their employers’ unfair treatment at work. Employees should ask themselves:

Did the employer allow an unfair treatment at work to occur?
What was the nature of the negative act or unfair treatment at work by the employer?
What actions or words preceded the act and possibly motivated the unfair treatment at work?
Were the employee’s protected characteristics violated in any way?
Does the employee have evidence of the employer’s unfair treatment at work?
Is the employer’s act or behavior a one-time unfair treatment at work, or has this been repeated?

Let these questions serve as a guide to help organize the facts concerning unfair treatment at work and understand what happened. Workers should know that they do not have to answer all of these questions before taking legal action, but answering at least some of them will help prepare them for an attorney’s questions. In addition, gathering this information can help prepare employees to work with employer lawyers and also field questions from authorities if it comes to that.

Identifying proof of the act or acts is vital and perhaps one of the most important questions here. If there is no proof that the unfair workplace treatment occurred, the case could quickly become one based on “he said, she said” conjecture.

What Are Protected Characteristics?

In California, a worker’s characteristics should not stop one from being hired, maintaining their occupation, or receiving the payment and benefits of their hard work. It is unlawful for employers to behave discriminatorily toward their workers or harass them for any reason based on their:

Religion
Race
Medical condition
Sex
Gender/gender identity
Age group
Disability
Marital status
Genetic information,
Origins
Veteran status
Military status
Skin color
Pregnant condition

Often, employees are protected against harassment and discrimination because they fit into one of these protected categories or can show that their employer is mistreating them because of one of these classes.

Importantly, having a witness to corroborate unfair treatment at work can go a long way toward filling a successful complaint or lawsuit. For example, if an employer tells dirty jokes about a worker, the worker should find out if any of their coworkers witnessed the act and if they would be willing to speak up. Witness testimony is one of the most convincing forms of evidence when filing a complaint or taking more dramatic legal action against an employer.

For example, a disabled employee whose boss incessantly makes fun of his wheelchair can take legal action based on this harassment. Likewise, an elderly employee who can show that her company did not promote her because of her age can file a lawsuit based on her employer’s discriminatory behavior.

What Are Protected Activities?

California employment law prohibits businesses from punishing or terminating workers for engagement in specific activities when these activities are legally protected.

The following are protected employees’ activities:

Whistleblowing
Taking family or medical leave as needed
Going to court as a victim of criminal acts
Seeking care as a victim of criminal acts
Participating in a workplace complaint
Serving on a jury after providing notice to the employer
Sharing your salary or wage information with coworkers
First responder duties
Lactation duties
Political participation
Asserting worker rights

An employer’s violation of any of these protected activities is considered an unlawful unfair treatment in the workplace. Typically, when workplace activity is legally protected, the employer’s action is unlawful unfair treatment at work for:

Discriminating against the employee
Harassing the employee

What is considered harassment in the workplace in California?

Workplace harassment refers to unwelcome or offensive behavior directed at an individual or a group of individuals based on protected characteristics, creating a hostile, intimidating, or offensive work environment. An employer’s violation of any of these is considered an unfair treatment in the workplace. Harassment can be verbal, non-verbal, or physical and is a violation of employment laws in many jurisdictions. Workplace harassment is unlawful treatment at work and can occur in various forms, and examples can include:

Verbal Harassment:
- Offensive jokes or derogatory comments based on race, gender, religion, disability, or any other protected characteristic.
- Name-calling or using slurs to demean or insult an individual or a group.
Non-Verbal Harassment:
- Displaying offensive or discriminatory images or symbols in the workplace.
- Making offensive gestures or using offensive body language to target an individual or group.

Physical Harassment:
- Unwanted physical contact, such as touching, patting, or blocking an individual’s path.
- Intimidating or aggressive behavior, including threats or gestures of physical harm.

Sexual Harassment:
- Unwanted sexual advances, comments, or propositions.
- Creating a hostile environment through sexually explicit or suggestive materials or discussions.
- Using one’s authority to demand sexual favors or making employment decisions based on whether sexual advances are accepted.

Cyber Harassment:
- Sending offensive or threatening emails or messages targeting a specific individual or group.
- Spreading rumors or making disparaging remarks about someone on social media or other online platforms.

Psychological Harassment:
- Bullying or belittling an employee, causing emotional distress.
- Excluding or isolating an individual from work-related activities or social interactions.

Retaliatory Harassment:
- Engaging in harassment as a form of revenge against an employee who has filed a complaint or participated in an investigation.
- Retaliating against an employee for exercising their rights, such as requesting accommodations or reporting violations.

An employer’s violation of any of these constitutes an unfair treatment in the workplace. It is vital for employers to establish clear policies against harassment, provide training to employees to prevent and prevent considers unlawful treatment at work, and promptly investigate and address any complaints of harassment. Creating a respectful and inclusive work environment is essential in fostering a productive and healthy workplace for everyone. Employees who experience workplace harassment should report the unfair treatment at work to their supervisors, Human Resources, or other designated channels within their organization to seek resolution and protection of their rights.

How do you prove workplace discrimination and harassment?

In California, to prove unfair treatment at work about illegal discrimination or harassment can be of various types, including both direct and indirect evidence. The strength and validity of the evidence for unfair treatment in the workplace will depend on the specific circumstances of each case. The following are some examples of evidence that can be used to support a claim of workplace discrimination or harassment:

Direct Evidence:

Direct evidence of unfair treatment in the workplace refers to explicit statements or tangible evidence that directly show discriminatory intent or actions. Examples include:

- Written or verbal statements by supervisors, managers, or coworkers indicating discriminatory motives or intent.
- Emails, text messages, or other electronic communications that contain discriminatory remarks or language.
- Records of discriminatory decisions or policies, such as written documents showing the selection of a less-qualified candidate over a more qualified one based on a protected characteristic.

Circumstantial Evidence:

Circumstantial evidence of unfair treatment in the workplace involves indirect evidence that, when considered together, may suggest discrimination or harassment. Examples include:

- Patterns of behavior: Evidence showing a consistent pattern of adverse treatment toward individuals with the same protected characteristic.
- Inconsistent treatment: Comparing the treatment of employees with similar qualifications and performance but different protected characteristics.
- Timing: If an adverse action occurs shortly after the employee engages in a protected activity, such as filing a complaint or taking medical leave, it may suggest retaliation.
- Witness testimony: Statements from coworkers or witnesses who observed discriminatory behavior or harassment can be powerful evidence.

Performance Evaluations and Records:

Performance evaluations, disciplinary records, and other employment-related documents can be critical in establishing a pattern unfair treatment in the workplace involving discriminatory treatment or harassment. Disparities in evaluations or disciplinary actions based on a protected characteristic can be indicative of discrimination.

Complaints and Reports:

Documentation of any complaints or reports made by the employee regarding the discriminatory or harassing behavior can serve as evidence of unfair treatment in the workplace. Keep a record of who was informed, when it was reported, and any responses received.

Expert Testimony:

In some cases, expert testimony from professionals with relevant expertise, such as psychologists or human resources specialists, can provide insight into the discriminatory or harassing nature of the unfair treatment in the workplace.

Comparative Evidence:

Comparator evidence involves identifying individuals in similar situations without the same protected characteristics who were treated more favorably. Such evidence can help demonstrate disparate treatment based on protected characteristics.

Attendance and Absence Records:

If an employee was subject to adverse actions, such as termination, immediately following a medical leave or pregnancy-related absence, these records can be used as evidence of potential discrimination or retaliation.

It is essential for employees who believe they have experienced unfair treatment at work involving discrimination or harassment to gather and preserve as much relevant evidence as possible. Additionally, seeking advice and representation from an experienced employment law attorney can help employees understand their rights and navigate the process of pursuing a discrimination or harassment claim in California for unfair treatment in the workplace.

What can an employee do about an unfair treatment at work?

If an employee believes they have experienced unfair treatment at work on the basis of discrimination, protected characteristics or retaliation for engaging in protected activities, they can file a discrimination complaint against their employer. In California, the process typically involves the following steps:

Document the Incident: The employee should document all relevant details surrounding the alleged discrimination or retaliation. This includes noting the date, time, location, and individuals involved. Keeping records of any relevant communication, emails, or other evidence can be beneficial later in the process.

Review Company Policies: The employee should review the company’s policies and procedures related to discrimination and complaint processes. Often, companies have specific protocols for addressing discrimination complaints, and the employee should follow these guidelines.

Contact Human Resources: The first step is to report the discrimination or retaliation to the human resources (HR) department. If the HR department is involved in the discriminatory actions, the employee should proceed to the next step.

File a Formal Complaint: If the issue is not resolved through HR or if HR is involved in the discrimination, the employee should file a formal complaint with the appropriate authority within the organization. This could be a higher-level manager, a designated compliance officer, or another authority responsible for handling discrimination complaints.

Contact Government Agency: If the internal complaint process within the company fails to resolve the issue or if the employer does not address the complaint, the employee can file a charge of discrimination with the appropriate government agency. In California, the agency responsible for handling discrimination complaints is the California Department of Fair Employment and Housing (DFEH). The employee can file a complaint with the DFEH online, by mail, or in person.

Investigation: Upon receiving the discrimination complaint, the DFEH (or relevant agency) will investigate the allegations. This may involve gathering evidence, interviewing witnesses, and reviewing company records.

Mediation or Settlement: In some cases, the DFEH may attempt to mediate the dispute between the employee and the employer. If a resolution is reached, the case may be settled without going to court.

Right-to-Sue Letter: If the DFEH investigation does not result in resolution or if the agency decides not to pursue the case, they will issue a “right-to-sue” letter to the employee. This letter gives the employee permission to file a lawsuit against the employer in court.

Consult an Attorney: Before proceeding with a lawsuit, the employee may want to consult with an employment attorney to understand their rights, evaluate the strength of their case, and determine the best course of action.

File a Lawsuit: If a resolution cannot be reached through mediation or if the DFEH declines to pursue the case, the employee can file a lawsuit against the employer in court.

Employees should be aware of the time limits within which discrimination complaints must be filed, as there are statutes of limitations that may come into play. Consulting with an employment lawyer about unfair treatment at work can help ensure that the complaint is filed within the appropriate time-frame and that the employee’s rights are protected throughout the process.

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