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

CAN YOU CURTAIL SEXIST COMMENTS AT WORK?

No one wants to work in a hostile environment, and constant sexist comments can contribute to hostility. Employers must work to create an environment that is safe for all workers, and that includes educating everyone about sexual harassment and investigating and acting on reports of such behavior. But what can employees do to protect themselves?

One Forbes contributor says that employees who are experiencing mild sexist comments can often quash those comments with the right behaviors. Mostly, the writer suggests that individuals call out — in the most professional and least dramatic way possible — sexist comments. When the issue is off-hand remarks, it is possible that the person making them doesn’t truly realize they are causing offense.

One technique the Forbes writer suggested for calling out sexist comments might be used if someone makes a joke that is not obscene in nature but is derogatory to a specific gender. The writer suggests asking, innocently, for an explanation of the joke. “Oh,” you might say, “I don’t get that. What do you mean by that?” In having to explain the joke, the hope is that the person will realize the remarks were sexist and offensive.

Obviously, these tactics won’t work in every situation; they are mostly relevant to issues of sexism that are inadvertent. If you are experiencing more forceful sexism or harassment of any type, then dealing with it on your own could actually increase the problem. Understand how to report sexual harassment in your workplace, and seek legal assistance if your employer fails to respond to your complaint or if you feel retaliated against because of your complaint.

Source: Forbes, “Six Ways To Shut Down Sexist Comments At Work,” accessed Jan. 15, 2016

SETTLEMENT IN SEXUAL HARASSMENT CASE INCLUDES OUTSIDE REVIEW

Over the past few years, several news outlets have highlighted a concern in the janitorial industry. Specifically, the news stories discussed a high rate of sexual harassment in the industry, especially among workers who handled cleaning duties during evenings and nights in mostly empty offices or buildings. One woman in California sued her former company after she claimed she was raped when working at night.

The woman reportedly claimed that a supervisor raped her while she was cleaning a building in California. The woman was later fired from the company. She alleged that the company fired her because she spoke up about the sexual harassment; if true, that would have been considered retaliation, which is not legal.

Reports indicate that the company did review the woman’s complaint, which alleged a rape in 2004. The company reportedly found her claims were not conclusive enough for action, but later the woman was awarded over $800,000 by a jury in her lawsuit. The jury reportedly noted that it agreed the company retaliated against the woman and that the company did not keep her safe.

After an appeal of the case, the company reportedly settled with the woman. The details of the settlement are confidential, but reports are that the company is allowing outside review of its practices as a result of the settlement. The outside review is reportedly meant to add additional oversight layers that might provide additional protection for employees who are working for the company.

Workers in any environment deserve some expectation of safety, and all workers have a right to report issues without fear of retaliation. If you believe you have been retaliated against or are dealing with a hostile work environment because of sexual harassment, then you likely have a case for some type of legal action.

Source: KQED: The California Report, “Largest Janitorial Company Agrees to Reform Response to Sexual Abuse,” Andrew Donohue, Dec. 10, 2015

WHAT DOES EQUAL EMPLOYMENT LAW SAY ABOUT GENDER?

The Equal Pay Act of 1963 says that businesses cannot discriminate in providing wages to people who are performing equal work based on gender. That means that individuals who are handling the same responsibilities at the same quality level for the same period of time cannot make different wages solely because one is a women and one is a man. The act would likely also come into play in situations involving transgendered individuals.

The Civil Rights Act of 1964 goes even further. It protects people from discrimination in hiring or promotions based on gender as well as religion, race, national origin or color. This means that employers cannot base a decision between equally qualified candidates based solely on one of these factors. Businesses also cannot promote or choose not to promote a person based on these factors.

It’s interesting to note that pregnancy is included in the protections of the act. Women cannot be fired solely because they become pregnant, and pregnancy cannot be the sole factor in a decision about hiring or promotion.

The acts also provide options for someone who feels he or she is facing discrimination because of his or her gender. Individuals are protected from retaliation if they report issues of discrimination, which means employers cannot create a hostile work environment to punish an employee for asserting his or her rights.

If you think you have been discriminated against, or if you are facing a hostile work environment because you raised issues of discrimination, then it’s important to know your rights. You could have rights to seek corrective action or recover through civil legal action.

Source: United States Department of Labor, “Equal Employment Opportunity is the Law,” accessed Nov. 18, 2015

TRANSGENDER EMPLOYEES MIGHT BE HARASSED OR FACE DISCRIMINATION

Employers in California have a lot of different factors to consider when they are trying to ensure that workers aren’t being subjected to harassment, discrimination or a hostile work environment. One particularly sensitive issue that employers aren’t always aware of is gender equality. That leaves workers who are transgender at an increased risk of suffering from discrimination, harassment or a hostile work environment. In some cases, the worker might be retaliated against or wrongfully terminated.

Gender identity discrimination can occur in several forms. Employers who terminate people who are transgender or people who are planning a transition are often discriminating. Employers who don’t allow employees to use the restroom that is appropriate based on their gender identity and those who permit off-color jokes about the transgender employee are also allowing discrimination and sexual harassment to occur.

While there aren’t any federal laws that protect transgender employees, there are laws that can pertain to specific situations that might occur. For example, an employer who allows sexually explicit comments geared toward the transgender employee is violating sexual harassment laws. If a transgender employee files a complaint about harassment and is demoted, the employer is violating retaliation laws.

No employee, regardless of his or her gender identity, should be subjected to a hostile work environment. If you are being harassed or discriminated against at work, you should learn about your options for making the behaviors stop. Once you learn your options, you can decide what you want to do. In some cases, you might need to file complaints with the Equal Employment Opportunity Commission so you can move on to other legal options.

Source: Workplace Fairness, “Gender Identity Discrimination,” accessed Oct. 09, 2015

SEXUAL HARASSMENT LAWSUIT RESOLVED IN FEDERAL COURT

A hostile work environment caused by sexual harassment is something that no employee should have to deal with. In fact, that type of situation is against federal laws. One company recently found out just how seriously the U.S. Equal Employment Opportunity Commission takes claims of sexual harassment, retaliation and a hostile work environment.

The EEOC filed a case against VXI Global Solutions in federal court. That case was recently resolved when the court approved a settlement that included $600,000 for nine employees, three men and six women, as well as other terms.

The case made by the EEOC included a variety of claims of sexual harassment. The EEOC noted that women were propositioned for sex, subjected to lewd comments and groped. Male employees were subjected to backrubs and lap dances by female supervisors. The men who declined those types of actions had their sexual orientation questioned. Of the complaining employees, at least seven were fired in a retaliatory manner.

As part of the settlement, the company will have to provide training regarding sexual harassment to all the employees in their United States offices, including their Los Angeles office. The company will have to update procedures and policies regarding sexual harassment. It is also being monitored for four years by the EEOC.

No employees should have to deal with sexual harassment in the workplace. These employees chose to take a stand against sexual harassment, retaliation and a hostile work environment. Any employee who is being sexually harassed, retaliated against or subjected to a hostile work environment might opt to take legal action against his or her employer.

Source: San Jose Mercury News, “Call center company settles federal sex harassment suit,” Brian Melley, Sep. 14, 2015

IS ALL WORKPLACE HARASSMENT THE SAME?

When you decide to work for a company, there are likely a few things that you considered when you accepted the job. One of the factors was likely that you wanted to earn money. Another factor might have been how you felt you would like working at the company. Once you start working for that company, you might discover that the environment isn’t what you thought it would be. While that might be just a luck-of-the-draw occurrence, it might also be because you are the victim of some form of workplace harassment.

What is workplace harassment?

Workplace harassment occurs when people in the workplace treat you in a negative manner because of a protected status. These statuses include parental status, gender identity, pregnancy, color, sex, race, religion, disability, national origin, sexual orientation or age. It doesn’t matter who is harassing you as long as it is because of a protected status. This means that you are protected from harassment by supervisors, co-works, clients, customers, contractors and anyone else who you come into contact with at work.

What are the different types of harassment?

A hostile work environment is one form of workplace harassment. In this case, the harassing behavior would be actions like making crude jokes, unwanted touching, acting in a hostile manner, using demeaning terms or similar actions. Quid pro quo harassment is the other form of workplace harassment. In this case, a supervisor would make deals with you that have an impact on your work. An example would be telling you that you will be promoted if you perform sexual acts or join a supervisor’s religion.

Workplace harassment is against the law. There are federal and state laws that provide very specific protections for protected statuses. If you have been the victim of workplace harassment, learning your options for putting an end to the harassment is the first thing you need to do.

Source: United States Department of Labor, “What do I need to know about…Workplace Harassment?,” accessed July 16, 2015

FEMALE LIFEGUARD ALLEGES HARASSMENT, CASE FINALLY SETTLED

Some people who read our blog might remember the show “Baywatch” that starred Pamela Anderson and David Hasselhoff. That show made the life of a lifeguard in California look almost magical. It seems as though the lifeguards were always having fun and living a glamorous life. That, however, is far from reality, especially if you consider the case that was recently settled regarding a female lifeguard.

The lawsuit alleged that a female lifeguard was subjected to a hostile work environment and sexual harassment during her time with the lifeguard division of the Fire Department. The woman alleges that the sexual harassment began long before she joined the division when she was 19. She claims that a supervisor with the division tried to get her to leave school with him when she was only 14.

Fast forward to her time as a lifeguard. She claims that once she joined the lifeguard division at 19, that same supervisor made sexually inappropriate comments and looked at her in an inappropriate manner. She claims the man also resented her for wanting to become a supervisor because he didn’t like seeing females in supervisor positions.

She also alleges that the man caused her to suffer injuries after making her ride on a rescue sled attached to his own personal watercraft. That led to him trying to get her to lie about what happened. When she didn’t lie and brought up the harassing behavior, she says that the supervisor and others in the division tried to scare her into not working or not speaking of the incidents.

The harassment this woman went through was horrible. Nobody who is trying to earn a living should have to deal with that type of behavior. If you have had to deal with similar situations, you have the option to explore ways to make the harassment stop.

Source: Eagle Rock Patch, “Sexual Harassment, Retaliation Lawsuit by Female Lifeguard Settled,” Mirna Alfonso, June 29, 2015