Can I Record My Boss To Prove Racist, Sexist Remarks?

Businessman yelling at woman through megaphone

An AOL Jobs reader asks:

I live and work in California, a 2 party consent state, and I wish to record my boss saying unprofessional things to me like, "all Asians are F'ing liars" or "her legs look great don't they" or just plainly being a bully and threatening people with their jobs on a weekly basis. He makes comments before Christmas like, "Ho-Ho-Ho" and pointing his fingers at women as he walks through the office.

I'm a male and I'm offended, so I just can't understand how he continues to get away with it. Can I record him at lunch and bait him to re-discuss his previous comments? Can I record him in his office with the door open?

Basically, how can I record this man and record his torts. Is he criminally liable for discrimination?

The issue of whether you can record a conversation at work is tricky. My column Can I Secretly Record A Conversation At Work? is one of my most popular columns ever. Since you're in California, you're in an all-party consent state, which means all parties to the conversation must consent to be recorded. Other all-party consent states include Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Hawaii is a one-party consent state, but it requires all-party consent if the device is installed in a private place.

If you live in an all-party consent state, the question will be whether or not the person you recorded had a reasonable expectation of privacy. In at least one case I've found, the California Supreme Court said there may be some expectation of privacy in the workplace, but I'd suggest contacting an employee-side employment lawyer in your state if you're even thinking about taping a conversation at work.

If you get it wrong, not only are there potential fines and imprisonment, plus potential liability in a lawsuit, but you may be prohibited from using the recording as evidence. California Penal Code § 632(d) says: "Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding." Many states have similar laws that penalize illegal recordings.

Cal. Penal Code § 632(c) specifically exempts recording of in-person conversations in public places, so you may be safe recording the conversation at, say, a restaurant or outside. However, there are also California anti-paparazzi laws that may apply to recording conversations.

An excellent source on state recording laws is the Reporters Committee for Freedom of the Press's Reporter's Recording Guide.

While it's admirable that you want to help colleagues by exposing a bigot boss, it may be best if you simply step up and report these comments, in writing, and advise HR that you are offended by them and ask them to investigate. Your testimony could be used if a coworker sued for discrimination, plus you may be legally protected against retaliation if you report discrimination at work.

Sadly, while you can go to jail if you illegally record a conversation, even of a bigot, there is no law making workplace discrimination a crime in the U.S.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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