SEXUAL ORIENTATION IS NO REASON FOR DISCRIMINATION

Your sexual orientation — or how you identify with regard to gender — isn’t really your employer’s business. If you do a good job and stay within the parameters of your work policies, then your employer can’t take action against you simply because he or she doesn’t agree with your gender or sexual orientation choices. In fact, doing so is a type of discrimination and can be unlawful.

It’s important to understand the difference between simply not liking your choices and taking specific action solely because of your choices. Your employer doesn’t have to like or agree with your choices. He or she has a right to voice an opinion about those choices in general and participate in political or other campaigns that are in line with his or her beliefs.

What an employer cannot do is discriminate against you as an employee simply because of your gender or sexual orientation. That means he or she can’t fire you without good cause related to your activities as an employee — and not to your gender or orientation. Termination isn’t the only form of discrimination, though. Your employer can’t refuse to hire you or promote you only because of your orientation. Companies can’t compensate you less when compared to other workers who have the same qualifications and tenure as you just because you are gay or identify as another gender.

It’s critical to note that employers don’t have to treat all employees equally. If you have less credentials than someone else, they might get a job you don’t; someone who has been with the company five years longer than you might make more money. These are decisions that don’t have to do with sexual orientation or gender. If you feel your employer is making decisions solely based on your orientation, though, then our firm might be able to help. We work with clients to battle hostile work environments and seek compensation and reparation when employers have committed discrimination.

HEAD OF PARK IN CALIFORNIA ACCUSED OF ALLOWING TOXIC WORKPLACE

A man is stepping down after seven years as the head of a national park in California after allegations that he allowed a toxic and hostile workplace. The man reportedly resigned amid a Congressional investigation into the allegations, which come from at least 18 employees or former employees of the park.

The park in question is Yosemite National Park, but it is not the only location where such allegations have been leveled. Reports are that allegations have come from employees throughout the national park system, including from staffers at sites such as the Grand Canyon and Yellowstone.

The man in question issued a written apology to staff citing what he called serious staff concerns. According to staff complaints, the man was allowing a variety of hostile work activity in the park, including sexual harassment, bullying and discrimination. A spokesperson for the park would not state exactly what led to the man’s decision to step down from his position.

While the details of this case are still unfolding and investigations continue to look into reported behavior throughout the national park system, it’s telling that the man stepped down. While we can’t conclude that the man was, himself, doing anything illegal just because he stepped down, his actions and the situation that currently exists are a good illustration of the legal and career implications of sexual and other harassment in the workplace.

Even if you are not personally involved in such harassment, if you are in a supervisory position, you might be held accountable. Knowing about harassment and not taking any action to stop it can make you culpable in certain ways. If you are being harassed — or believe someone else is harassing someone under your watch — it’s always a good idea to seek a legal opinion about your options.

Source: New York Post, “Yosemite chief retires amid sex harassment allegations,” Sep. 29, 2016

ARE YOU DEALING WITH A TOXIC WORK SITUATION?

We’ve written recently about numerous issues that could cause legal implications in the workplace, but what if you are simply dealing with a toxic environment? Toxic situations can be extremely difficult to stomach on a daily basis, because sometimes you can’t see any options for dealing with the situation. In some cases, the environment is extremely negative without ever crossing the line into harassment or discrimination, which means you might not have the legal options we can offer in such cases.

At the same time, most people simply can’t walk out on a job because the environment is toxic or stressing. In many cases, the best advice is often to search for another job, but while you wait for leads to materialize or your supervisor to handle the situation, you also need to safeguard your career.

A first step in dealing with a toxic environment in the workplace is to recognize it for what it is. A truly toxic environment has to do with one or more of the other people and how they deal with situations, treat you or react to pressure. It does not have to do with your worth as either a person or an employee, and it’s important to realize that or you might deal with confidence issues or begin to think the toxicity is somehow your fault.

Next, you’ll need to find ways to deal with the environment without becoming part of it. Don’t succumb to negativity or poor behavior just because everyone around you is. When possible, be the better example — sometimes that actually helps to improve the situation. If you do think you are being harassed or discriminated against and the situation is more than just negative, then reach out to an employment lawyer for more information about your options.

Source: Forbes, “Coping In A Toxic Work Environment,” Amy Rees Anderson, accessed Sep. 09, 2016

BULLYING DOES HAPPEN IN THE WORKPLACE

Although StopBullying.gov defines bullying as inappropriate and unwanted aggression between school children, bullying isn’t something limited to the elementary school playground. Bullying can and does happen in the workplace. Depending on the nature of that bullying, you might have legal options for dealing with issues that aren’t handled by your employer.

Sadly, bullying in the workplace doesn’t always qualify under the law as harassment or discrimination. If the bullying is of a sexual nature, then it is likely a form of sexual harassment. If you are being bullied by others because of your race, age or other protected factors — and your employer doesn’t provide any assistance or is part of the bullying — then discrimination could be at play.

Standing up against bullying is as important for adults as it is for children, but you have to be able to recognize bullying before you can take steps to put a stop to it. In the workplace, bullying often takes on the same forms as it does on the playground. One form of bullying is isolation. The victim is purposefully left out of interactions, projects or social plans. This can actually be detrimental to your career, especially if your supervisor regularly alienates you from key projects.

Other signs of bullying might include name calling, threats, intimidating body language, rude language or gestures and even physical contact. If you believe you are being bullied in the workplace, don’t be afraid to take action. If you believe bullying is crossing a legal line into discrimination or harassment, then don’t be afraid to work with an employment law professional to understand your options.

Source: Stop Bullying, “Bullying Definition,” accessed July 29, 2016

UNDERSTANDING YOUR EMPLOYEE CLASSIFICATION

Most of the time, we talk about the important of not classifying employees in the workplace along lines according to race, gender, age, sex or nationality. But there is one classification that is critical and it’s really important that employers get it right. That classification is whether you are an exempt or non-exempt employee.

What exactly does that mean? An exempt employee is someone who is not generally eligible for overtime. Typically, these are people in management positions of some kind, but they don’t have to be supervisors. The federal government and state law mandate certain provisions regarding who can be called exempt — including cutoffs for how much people make per year. If you don’t make a certain amount each year, you can’t usually be considered exempt.

A non-exempt person is someone who is paid hourly or is paid a salary that can be converted to hourly to calculate overtime. These individuals are paid overtime when they work over 40 hours in one week.

Obviously, companies experience a benefit from making someone an exempt employee. They can then require that person to work a certain amount of overtime without paying them any extra money. Because of this, it’s possible that a company would misclassify employees to save money. It’s even more possible that a company might make an error in classification, especially for someone who is near the line between exempt and non-exempt.

If you believe you have been misclassified and are not being paid overtime you have a right to, then bring it up with your employer. If the situation is not remedied, our firm can help. We work with you to understand the specifics and provide guidance on whether you should file a lawsuit.

ARE YOU DEALING WITH A WORKPLACE BULLY?

You are protected from a hostile workplace in certain conditions. Your employer must take action to protect you from sexual harassment or address sexual harassment in the workplace. Discrimination is also not allowed in the workplace, and various discrimination types are illegal in each state. California actually has some of the most comprehensive discrimination laws protecting workers.

That being said, not all hostility in the workplace is illegal, which makes it difficult for some people who deal regularly with workplace bullies. According to OvercomingBullying.org, several types of bullies are common in the workplace. It identifies eight bully types, including the Constant Critic, who attacks the confidence of others through constant negative criticism.

Another common bully type is the Screaming Mimi. A loud and boisterous person, this bully berates people publicly and tries to shame and humiliate them in front of others. The Two-Headed Snake is identified as a two-faced person who gains your confidence and then uses information you share against you. The Gatekeeper uses whatever power he or she has to belittle or condescend to others.

One type of bully might not seem like a bully at first. They are the Attention Seekers. They make statements and act out just to get attention. If coworkers respond with attention, all is well. If enough attention isn’t garnered, the bully might get more aggressive.

These are just some of the bully types that are, on their own, not illegal. These types of bullying can become discrimination or harassment that is illegal, though. If you are facing a workplace bully, then consider seeking help from your boss or human resources. If you are facing illegal hostility in the workplace, consider seeking assistance from a legal professional.

Source: HR Morning, “Watch out for these 8 workplace bully personality types,” Tim Gould, accessed June 03, 2016

SOME COMMON WORKPLACE RIGHTS DON’T ACTUALLY EXIST

The rights you have in the workplace can be a gray area, and the information you might get from family and friends isn’t always correct. For example, you don’t always have a right to free speech in the workplace, and you can be fired for saying certain things. In most cases, individuals who work for private companies are only protected when it comes to speech that is protected under another type of law — for example, what you say might be protected under a whistleblower law.

Surely you’re protected when you speak out against what you perceive as wrong-doing in the workplace, right? Not always. You can lose your job for speaking out against actions that aren’t covered by specific laws. If you speak out against discrimination, illegal financial activity or health concerns, then these might be covered under federal or state laws.

You should never have to work in a hostile environment, right? It depends on what you call a hostile environment. If your boss is just generally unpleasant, requires a lot from you and doesn’t give much in return, that can feel hostile, but it’s not illegal. What is illegal is to harass someone based on gender, age, race or other protected traits.

You might also think you have a right to privacy in your workplace. While you certainly have some privacy rights — you should be able to use the restroom without your boss looking on, for example — your work emails and Internet use are fair game. Your boss can look at that information anytime he or she wants.

As an employee in any company, you do have some rights. Understanding those rights is critical before you make any claims or file a civil action. Working with an employment law attorney helps you understand whether your rights were violated and what you can do about it.

Source: Glassdoor, “10 Workplace Rights You Think You Have — But Don’t,” accessed May 20, 2016

HOW DO COURTS DECIDE IF A HOSTILE WORK ENVIRONMENT EXISTS?

Last week, we discussed how employers must be careful to avoid creating a hostile work environment for any employee or worker. But if you file a lawsuit claiming a hostile work environment because of sexual harassment, what will the court look at to determine if such an environment might exist?

According to law, a hostile work environment that is based on sexual harassment includes action from one or more other individuals that is not welcome and is pervasive or severe enough to create an offensive or abusive situation. The law considers whether such conduct was physical or verbal in nature; often, it is both. The law also considers how often such conduct might occur – a single inappropriate comment doesn’t make a hostile working environment.

Other factors that might be considered by the court include the relationship between the alleged victim and the harasser. Was the alleged harasser a supervisor or a co-worker? Where did the activity occur, and was it patently offensive or hostile in nature? Did the alleged harasser or harassers direct activity at more than one person?

These are only some of the questions that might be considered by courts considering hostile work environment cases. Proving such an environment existed can be difficult depending on the situation. Do you have witnesses, or is it one person’s word against another?

Working with a legal professional who is well-versed in sexual harassment cases can help you understand whether your situation meets the definitions for a hostile work environment. A Sacramento lawyer can also help you build a case, including identifying evidence and witnesses that might help substantiate your claim in court.

Source: FindLaw, “Sexual Harassment at Work,” accessed April 15, 2016

APPRECIATE VOLUNTEERS IN APPROPRIATE WAYS

April is National Volunteer Appreciation Month, a time with organizations across the country stop to appreciate the people who give time and effort to help others or drive a cause. While volunteerism is certainly very different from paid employment, many organizations have reward structures or hierarchies. Anytime you introduce rewards — no matter how intangible — you have the possibility of discrimination.

Volunteers can also suffer from hostile work environments due to discrimination or other issues. Yes, volunteers are not required to stay. Yes, they aren’t making a decision to stay because they need to earn a wage at that place of employment. Some volunteers are relying on the experience to boost their career capabilities, though. And while volunteers are not protected by the same laws as employees, they should still be able to work with others without fear of discrimination or hostility because of gender, race or other factors.

Volunteer Appreciation Month is a time when all volunteers within an organization should be celebrated. Organizations, whether public or private, should be careful not to leave out certain volunteers because of discrimination factors or single out certain volunteers inappropriately.

Your celebration measures should also be appropriate for the volunteers and the organizations. A CEO taking a single volunteer out for a cozy and private dinner could be misconstrued as something more than simple appreciation, for example. As with an employee, you should be careful to treat volunteers with appropriate respect.

If you are a volunteer with an organization and you believe that enterprise has discriminated against you or that you have been the victim of sexual harassment, then you might have legal options. Those options are possibly different than they would be if you were employed by the organization in question, but we can help you understand important differences and work with you to pursue and appropriate legal case.

Source: United Way of New York City, “What are National Volunteer Appreciation Month and National Volunteer Week?,” accessed April 08, 2016

CYBERSTALKING OFFICIALLY LISTED AS A CALIFORNIA CRIME

Beginning Jan. 1 of this year, both California penal code and civil law lists cyberstalking as a chargeable crime. Individuals convicted of cyberstalking can be sentenced with up to a year in prison and a fine of $1,000. The law, which isn’t necessarily targeted to workplace harassment, could have implications for those who are experiencing such issues.

A Pew Research Center survey in 2014 indicated that 40 percent of adults online have experienced some form of harassment. As many as 73 percent reported seeing harassment occur online to someone else, which means this is a prevalent problem across all types of environments online.

For some adults, the Internet can be an extension of the workplace. Messaging apps, social media and even personal email or websites offer someone a chance to harass, stalk or communicate with someone outside of the workplace. In some cases, a person who has limited his or her actions in the workplace out of fear of reprisal might take bolder actions to harass someone online.

But what do you do if you are a victim of such harassment? If it occurs on your own personal social media pages or messaging systems and outside of work hours, is it workplace harassment? The lines are honestly a bit gray in this area, which is why it’s probably a good idea to get a legal professional involved if your employer doesn’t take action to protect you.

One good thing about this new California law is that it provides some possible protection outside of the employer. Now victims of this type of harassment can go to law enforcement if they are not getting results at work.

Source: San Gabriel Valley Tribune, “Tougher California laws protect victims of digital harassment,” Kevin Smith, Feb. 09, 2016