San Francisco Employment Law Firm Blog

Under California law, an employer is not liable for harassment or workplace discrimination committed by the victim's worker if the employer did not know or had no reason to know that the unlawful conduct took place. This means that to protect yourself during employment and to make sure that you are able to recover damages for your potential wrongful termination claims, you must complain about the unlawful conduct to your hr department, your supervisor, or your supervisor's manager.

Often, during the litigation of an employment dispute and in an attempt to disprove the claimant's case, the employer will argue that the aggrieved employee never complained about the alleged discrimination and harassment and therefore the same employee does not have a case. This is exactly why it is so important that you complain in writing (e-mail to HR department with CC to the management is advisable) and save your e-mails, as it would be very hard for your employer to seriously dispute the fact that you complained, if you have date-stamped e-mails that contain the description of the wrongful conduct and your request that the conduct be addressed.

One of employers' favorite ways of retaliating against employees or creating a paper trail for terminating a worker who complains about harassment or discrimination or who demands to have the opportunity to exercise his disability rights at workplace, is by engaging in a campaign of issuing negative performance reviews. This strategy is "effective" for at least two reasons. First, a review of an employee's performance is an inherently subjective process, which makes it particularly challenging to prove that the review is tainted with pretext and discriminatory / retaliatory motive. After all, any manager or a supervisor can argue that he is entitled to his/her opinion and can find certain flaws in most employees' performance. Secondly, series of negative reviews, especially if these evaluations are not substantiated, are likely to cause the reviewed worker to start feeling unappreciated, frustrated, and as a result lose motivation to work well and start having real performance issues. Arguing later what came first - the bad reviews or the bad performance - is an uphill battle for most employees.

So, what are some of the ways to prove that the negative performance reviews are not "real?"
The first and the most crucial step of attacking the veracity if performance evaluations is by tracing the total history of a worker's performance. If, for instance, you have been working at a company for 10 years, complained about harassment six months ago, and your very first or one of the very first negative performance reviews was issued a month after your complaint, this is likely to be more than a coincidence. Another evidence of retaliation and discriminatory motive is a situation where several workers are engaging in the same misconduct, which is known to their manager, but only one of them is being disciplined and reprimanded.

A manager's inconsistent statements about what the exact performance issues are is yet another possible way to show that all of the "issues" mentioned are bogus and they are not the true reasons for poor performance evaluations or subsequent suspension, transfer, demotion, or employment termination. After all, we tend to remember the truth much better than the lies that people artificially make up in their mind and which do not have a logical connection to reality.