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What Behavior Does, Doesn't Constitute Illegal Harassment

May 05, 1996

Q: I have heard a lot about sexual harassment in the workplace since this has been a hot topic in the media. My boss makes me feel uncomfortable through intimidation and by making threats, but he never uses sex as an instrument of control.

What other types of harassment exist in the workplace besides sexual harassment? What rights do I have as an employee? Where can I go for help?

--L.D., Buena Park

A: One common misconception is that excessive criticism or even rude and insulting behavior on the part of a boss is unlawful harassment. It is not. If it were, it would be impossible for a boss to reprimand an employee without causing a lawsuit.

"Harassment" by a supervisor toward a subordinate is only illegal if it is based on sex, race, age, national origin, religion, disability or another similarly protected category. And then, it is illegal only if a "hostile working environment" is created, which typically requires that a pattern of harassment be shown instead of just one incident. On the other hand, a supervisor need not insist that a subordinate give in to his sexual demands for there to be unlawful harassment. A boss' repeated use of vulgar, gender-based epithets would qualify, as would racial or ethnic slurs.

If your boss is merely intimidating you by threatening to fire you if you do not perform up to his standards, there is not much you can do besides improve your performance or look for another job. If you still feel, however, that your boss' conduct is illegal, you can contact an attorney, the federal Equal Employment Opportunity Commission or the state Department of Fair Employment and Housing for assistance.

--JAMES J. McDONALD Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine

Notifying Workers About Pay Raises

Q: Our employer is engaging in a salary administration practice that I'm not sure is legal. On March 2, our annual pay rate increase took effect. However, we were not notified of what the new rate was until several days later.

Shouldn't we be told what the new rate is before it takes effect? How can our employer withhold this information for days when we're already working at the new rate? I don't understand what would motivate them to do this, but this is the way the system has been run for years.

--S.H., La Habra

A: An employer has an obligation to clearly tell employees the rate at which they are paid. In fact, it would be illegal if your employer told you that your salary is decreasing to a level that will be divulged later.

However, the opposite is not as true. When the employer tells you that your wage has increased and they will notify you later, it could be regarded as a discretionary bonus not subject to the same laws as if it had been a decrease. Even though it would be nice to budget your own personal finances by knowing the increased amount, it is not unusual for employers to tell employees that they will be receiving a bonus or an increase in pay that will be made retroactive to an earlier date.

It might be different if the employer had an obligation to grant this increase, perhaps as part of a contract. However, if it is a discretionary raise in pay, the same legalities do not exist.

Also, you would have a better case if the delay in informing you was greater than just "several days." Any possible damage you would suffer because of this situation is so minimal that you should probably ignore the inconvenience and be grateful for the increase. Even if they had an obligation to tell you, I would not suggest antagonizing the employer for the minor inconvenience it caused you.

--DON D. SESSIONS

Employee rights attorney

Universal City

Explore Recourse Before Quitting

Q: I am 46 years old and would like to go to school after work to better myself as well as to contribute something to my community. But I am required to work 10 to 12 hours a day, making it very difficult.

Not only am I required to work overtime during the week but also all day Saturday. Is there any recourse short of quitting my job? I've been with the same company for 13 years. I do not wish to quit, but would like to pursue other interests.

--M.H., Anaheim

A: There may be another recourse to explore short of quitting your job.

Study your employee handbook to determine possible options. Sometimes, employers permit transfers to other positions or shifts that demand fewer weekly work hours. Some companies have part-time work schedules. Have you considered any of these options?

Many companies also offer career planning benefits. Often these are coupled with tuition reimbursement programs to assist employees.

It appears that your company must value your service since you have been employed for 13 years. If these variable options are available, explore your interests with the appropriate individual at your company. Work out a mutually agreeable career development program. This becomes a "win-win" situation for both you and your employer.

If these options are not available, perhaps you should seek employment where future opportunities will exist.

--ELIZABETH WINFREE-LYDON

Senior staff consultant

The Employers Group

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