WHAT IS AN EMPLOYER’S DUTY WHEN WORKPLACE HARASSMENT IS REPORTED?

Every day, in companies all across the country — including many in California — there are employees subjected to hostile work environments. Workplace harassment is real, and even though all of it may not rise to an illegal legal, it does not mean it is something for employers to ignore. Do you feel you were subject to harassment in the workplace? Do you feel your employer did nothing to stop it? You may have legal recourse.

What is workplace harassment?

According to the U.S. Equal Employment Opportunity Commission, harassment is defined as any unwanted conduct. This does not include petty annoyances or isolated incidents — unless the isolated incident was quite severe. To be considered workplace harassment, the offensive behavior becomes a regular part of one’s work experience and the victim must feel that his or

her work environment has become hostile, abusive or intimidating.

What types of conduct may be considered offensive?

Harassment really knows no bounds. Offensive conduct comes in many forms, including:

  • Offensive jokes
  • Racial slurs
  • Physical assaults
  • Intimidation
  • Interfering with work performance
  • Sharing of offensive materials
  • Insults

Examples of workplace harassment

  • Verbal harassment: A male employee frequently makes sexual remarks to a female employee. Despite her asking him to stop, it continues almost daily.
  • Physical harassment: An employee is frequently touched by a co-worker in a way that makes him or her feel uncomfortable.
  • Supervisor harassment: A manager or supervisor abuses his or her authority by threatening or intimidating staff through emails, conversations and by physical actions, including touching, hitting, groping, etc.

What is an employer’s responsibility when they receive a report of harassment?

Workplace harassment is never okay. Unfortunately, there are employers who do not take reports of harassment seriously. In fact, many employers fail to do anything about the reported behaviors. This is unacceptable. Employers are to provide a safe environment for all employees by taking action immediately upon receiving reports of harassment.

If you have reported issues of harassment to your employer, yet continue to be in a hostile work environment due to a lack of attention to the problem, you may be entitled to file legal claims against your employer in a California civil court in an effort to seek compensation for resulting damages sustained. If you are unsure whether you have a strong harassment case, an experienced attorney can review the facts of your situation and assist you in filing legal claims, if appropriate.

WHAT ARE COMMON EXAMPLES OF SEXUAL HARASSMENT?

Are you unsure if you’ve been facing sexual harassment in the workplace? It can sometimes be hard to decide if you’re dealing with a real issue that breaks the law, and you may not want to move forward until you’re sure. Below are some examples of sexual harassment to help you know what you’re looking at:

1. Sharing explicit information. This could include pictures or videos, but it could also include notes, email messages, text messages, letters, and the like. If these are explicit or overly suggestive, they could count as harassment.

2. Acting sexually aggressive. This includes making gestures that are clearly sexual in nature or telling offensive sexual jokes — especially at your expense. It can also be as simple as staring in a lewd manner, cat-calling, whistling and the like.

3. Talking about sexual information. Some informative is very personal. For instance, it could be harassment if a boss continuously asks a worker about his or her sexual history or sexual preferences.

4. Talking about someone in a sexual manner. A co-worker could make inappropriate comments about your body, for instance, or the clothes that you’ve chosen to wear.

5. Sexual contact. Naturally, the most overt sexual harassment is when it includes physical contact. This can include patting someone, rubbing or brushing against them, pinching them, or any other type of sexual contact.

Do any of those examples sound like what you’ve been facing in the workplace, creating a hostile work environment? If so, you need to know that this conduct is likely illegal and you may have a right to pursue legal action.

Source: The Balance, “Examples of Sexual and Non-Sexual Harassment,” Alison Doyle, accessed Dec. 01, 2016

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

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

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