Legal Question in Employment Law in California

for the past week or so, i've been saving text messages sent to me from my boss because i am almost certain that it is illegal to threaten any employee. yesterday, i already worked 8 hrs and she asked me if i can come back to work later in the day to help her with a project. i said yes but that i had to leave by 3am. we were suppose to start at 11pm. i was there and ready to work but didnt start till 1am because thats what time she arrived. at 2:45am, i reminded her that i had to leave at 3 and asked if there was anything she needed me to do before i leave..and thats when she got upset at the fact that i had to leave and she would be there by herself. i explained the importance of me getting home asap because i have a wife and a 5month old daughter at home. my boss then told me to leave. as i was driving, she called my phone and began to yell and cuss me out, saying that i better get my ass back there to help her finish her project. she hung up and started texting me nothing but degrading and belittling remarks. the very last text she sent me said "if you tell anyone, i will hurt you and i mean that". i deal with this everyday and bring home all the mental stress she distills. i dont want to report this to my boss's boss or to HR because they are all friends with eachother. there is alot more evidence and witnesses as well as victims of her abuse. would this be considered harrassment? do i have a case on this? if so..what do i do and who do i speak with?


Asked on 11/10/10, 1:15 am

1 Answer from Attorneys
Raven Sarnoff

It sounds like you may have a claim for Intentional Infliction of Emotional Distress (IIED). It may be difficult, however, to find an attorney who will represent you if you only have an IIED claim, without there also being a claim for harassment based on a discriminatory reason.

It is not clear from the facts you provided whether you have claims for unlawful harassment or discrimination. In order to constitute unlawful discrimination, harassment, or retaliation for complaining about discrimination or harassment, the harassing conduct must be based on a protected category, i.e. race, age, gender, disability, ancestry, national origin, sexual orientation, religion, etc. In other words, your boss has to be treating you adversely (and differently from other employees) BECAUSE you possess one of those characteristics for the harassment to be illegal (beyond IIED). Your factual summary does provide any facts to support that the harassment is discriminatory, as you have not indicated WHY you believe your boss treats you adversely, or whether he treats you differently from other employees who do not share the protected characteristic.

If you do believe the harassment is based on one of the above-described categories, you may want to complain to HR, in writing. Make it clear that you are complaining about harassment based on the specific protected category. Employer�s have a legal obligation to prevent discrimination and harassment in the workplace. If you ultimately were to sue your employer and you did nothing to try to correct the situation that could hurt your case. However, the risk of losing your job is real, and only you can decide what is best for you. This is especially true if the conduct does not constitute unlawful discrimination or harassment, as the company may very well just fire you, and you would have little recourse.

For more information regarding unlawful v. lawful harassment, please read my article �Top 5 Employment Law Myths� here on lawguru.com, or on our website www.sarnofflaw.com.

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Answered on 11/15/10, 11:51 am


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