COULD AN ARBITRATION CLAUSE BLOCK YOUR SEXUAL HARASSMENT CLAIM?

What do employment arbitration agreements have to do with sexual harassment?

Typically, an arbitration clause is an agreement to not pursue any legal action against your employer in court. Instead, it forces you to take your dispute into private arbitration, where a binding decision is made by a supposedly neutral third party. That means that you can’t sue even for something as awful as sexual harassment. When combined with a confidentiality clause, it’s a great shield for your employer but not so great for you.

Arbitration clauses are perfectly legal, but they don’t leave the employees stuck with them much choice. A prospective employee that’s presented with one in his or her contract either agrees to the clause or loses the job offer. If you’re like most people, you’ll sign and lock yourself in.

For that matter, you may not even have to sign anything to be bound to an arbitration clause. Some employers sneak them into the materials you’re handed when you take the job alongside the instructions on where to park, and they can be just as binding.

In many cases, the employer has the upper hand and gets to pick the arbitrator, so the company can choose one that is typically “employer friendly.” Your employer also enjoys the benefits of access to documents and records you may not be able to see without the discovery process that’s allowed during the course of a civil suit.

Nobody even seems to be certain how many employees are prevented from exercising their rights by arbitration clauses. One study estimates that it could be as many as one quarter of all non-unionized workers. The Equal Employment Opportunity Commission (EEOC) also believes that mandatory arbitration clauses promote secrecy and hurt employees but hasn’t been able to overcome them in court.

Just the same, some victims of sexual harassment have found ways around their arbitration clauses. In one notable example, television commentator and author Gretchen Carlson was able to skirt the arbitration clause in her contract with Fox News by directly suing Roger Ailes, the co-founder, chief executive officer and chairman of Fox, instead of suing the company itself.

If you’re the victim of sexual harassment, don’t assume your arbitration agreement will stop you from filing a civil suit until after you’ve consulted with an attorney.

MUST A PHYSICAL ADVANCE BE SEXUAL TO BE SEXUAL HARASSMENT?

Most people realize that actions like grabbing someone’s genitals, fondling someone’s breast or forcing a kiss on someone’s lips are inherently sexual. But does a physical advance on someone have to be inherently sexual in nature in order to constitute sexual harassment?

No, it doesn’t. Even an action that could in no way be described as “alluring” can form the basis of a sexual harassment claim. So can non-sexual physical contact that merely serves as a pretext for getting the victim in closer.

An appeals court finally settled that question when an employee filed a quid pro quo sexual harassment claim against her employer after her direct supervisor made unwanted “personal grooming” requests of her — during which he made statements that made it clear that he had the power to either have her fired or help her keep her job.

The lower court had rejected the employee’s claim because the supervisor’s request, while intimate, was definitely not the most sexually overt or enticing thing he could have done: He called the female employee into his office on the pretext of having her pluck an ingrown hair out of his chin.

When she declined to assist him, he put tweezers in her hand and reminded her that he could end her employment there. When she went to leave, he put his arms on her shoulder and neck and kissed her on the side of the face and forehead without further mention of her job. She was fired a few weeks later.

It was the third instance of unwanted contact from him. The employee had reported the prior two to her employer, with no effect.

The lower court found that, since there was no overt request for sexual favors in exchange for keeping her job, no quid pro quo case existed. The higher court reversed the ruling, pointing out that a reasonable jury could conclude that the rather bizarre grooming request was just designed to bring the victim in close enough for her harasser to act and that the mention of her job security was enough to establish the quid pro quo case.

Anyone who believes that he or she is being pressed for physical favors in exchange for job security, regardless of whether those acts are explicitly sexual or not, may have a claim for sexual harassment. An attorney can provide you with more information on your legal options.

Source: Workplace Fairness, “Sexual Harassment – Legal Standards,” accessed Feb. 05, 2017

WOMEN SCIENTISTS HOPE TO SEE CHANGES REGARDING SEXUAL HARASSMENT

Scientists — especially women scientists — hope that 2017 is the year that things change so that sexual harassment and gender bias among scientists starts to become a relic of the past.

2016 was the year a peephole opened up to reveal an ugly view of the role sexual harassment plays in the scientific community. The response has been tremendously vocal and proactive, with the hopes of changing the situation once and for all.

Among other revealing research, a study on female scientists found that 71 percent had been sexually harassed in the field and 26 percent had been sexually assaulted. Another study published in the Journal of the American Medical Association reported two-thirds of female biomedical researchers had personally experienced gender bias and one-third had experienced outright sexual harassment, including sexist comments and pressure for sexual favors.

The net effect of the unchecked sexual harassment in the fields of science, technology, engineering, mathematics and other related fields is that it’s damaging to everyone. Young women who experience harassment early in their careers are put in the position of either capitulating to the demands made or angering their older, male mentors — the very people who are supposed to help open doors for them in their field.

Nearly half of the women who had been sexually harassed said it affected their career advancement and more than half said it affected their confidence level. Many say that there is a sense among women in the sciences that sexual harassment is a price that has to be paid in order to remain in their fields — so many ultimately don’t. They drop out and move into other jobs or move into private industry instead. When bright people flee the science fields rather than deal with the sexual harassment, progress as a whole suffers.

In response to the growing concern over sexual harassment in the scientific community, the American Geophysical Union, the American Astronomical Society, the Biophysical Society and the American Physical Society have all created new codes of conduct and clarified the consequences of violating those codes. The ultimate goal is to create a cultural shift that won’t be as accepting of the status quo and an environment that will encourage more women to stay in their chosen scientific fields.

If you’ve experienced sexual harassment or demands for quid pro quo sexual favorsfrom your mentors and supervisors in your field, an attorney can tell you about your legal options.

Source: WIRED, “Month By Month, 2016 Cemented Science’s Sexual Harassment Problem,” Sarah Scoles, Dec. 29, 2016

FOREST SERVICE ACCUSED OF SEXUAL HARASSMENT AND ABUSE

The U.S. Department of Agriculture is being held accountable by members of the U.S. Congress over years of sexual harassment complaints. One of the central parts of the congressional investigation was an extremely disturbing and tearful testimony brought forward by a wildland firefighter.

The female firefighter from California’s Eldorado National Forest told the story of a male supervisor her who fondled her breasts with a letter opener while smiling like he knew he was going to get away with the act. The woman said that all she could do was stand there in shock after the incident.

Members of the House Oversight and Government Reform Committee were especially shocked when they discovered that the woman’s harasser was permitted to retire from his position with no punishment and later came back to the department as a motivational speaker.

Unfortunately, the woman’s story is not the only one of this type to be shared during the hearing. Numerous employees of the Department of Agriculture told the committee about their experiences with sexual discrimination, harassment and even sexual assault. Some women had been raped by their coworkers but were afraid to testify because they had been threatened that their careers would be destroyed in retaliation.

Instances of sexual assault and harassment on the job like those described above are unconscionable, illegal and horrifying. No one in California or anywhere else in the world should ever have to experience such abuse. Those who are being sexually harassed, sexually discriminated against or sexually abused on the job, have every power to make it stop right now, and they will never have to experience it again. The law is on your side, and those who have suffered this abuse can file legal claims to protect themselves and seek financial compensation for the abuse they have endured.

Source: The Washington Post, “Forest Service slammed over sexual-harassment and civil rights complaints,” Joe Davidson, Dec. 02, 2016

THINGS YOUR EMPLOYER SHOULD TO AFTER YOU REPORT SEXUAL HARASSMENT

If you feel you are being harassed sexually in the workplace, then one of the first things you might consider doing is reporting the behavior to the appropriate supervisor or human resource representative at your company. Obviously, this wouldn’t be the case if the harassment is coming from that person or if you don’t feel safe making the report for another reason, and you should never hesitate to consult with an outside employment law professional if you aren’t sure about the next best steps.

Once you do report possible sexual harassment within the workplace, then be prepared for and expect your employer to take action. First, whoever you reported the incident to should follow company protocol in reporting it up the chain of command appropriately. That doesn’t always means reporting the incident all the way up through leadership; often, it means providing the information to an HR or compliance officer so an investigation can take place.

Do expect your employer to follow confidentiality procedures. While some people might need to be made aware of some details of the incident so that an investigation and corrective action can proceed, your supervisor or others shouldn’t share the information with everyone in the building. If you feel discretion isn’t being followed, talking to someone in leadership.

Finally, do expect that you won’t be retaliated against for making the report — that’s actually illegal. If you are retaliated against, then consider speaking immediately with a lawyer to plan your next actions. You have a right as a worker to make such a report in good faith and have your employer investigate the matter without turning against you.

Source: HR Hero, “Top 10 tips for conducting an effective sexual harassment investigation,” Lauren M. Cooper, accessed Nov. 11, 2016

QUID PRO QUO SEXUAL HARASSMENT: WHAT IS IT?

Sexual harassment scenarios can be divided into two broad categories, one of them being quid pro quo harassment. This is often the easiest to identify as a victim, but it’s not always easy to prove.

Quid pro quo is a Latin phrase. Loosely translated into English, the phrase means “something for something.” It means that you give up or do something in order to receive something in return. That alone isn’t illegal – quid pro quo relationships exist all the time in business and some of them are even formalized by legal contracts. One person might provide a certain piece of work; in return, he or she is paid an agreed upon amount of money.

What is illegal is making sex or anything of a sexual nature part of a quid pro quo working relationship. Someone cannot demand sexual favors or even sexual attention such as flirting, a romantic night out or sexy pictures in exchange for giving you a job. You also can’t be fired from a job because you refused to provide sexual favors or engage in a sexual or romantic relationship with someone.

Quid pro quo sexual harassment doesn’t always come with strings attached to your job, though. It’s still sexual harassment if someone demands sexual favors in exchange for higher pay, a better office, a new title or just keeping something about your work a secret.

If someone is demanding sexual favors in the workplace, then speak to your supervisor or human resource representative. You have a right not to be retaliated against for speaking up about harassment, and if you feel there is no good option for addressing this in the workplace, consider reaching out to a lawyer for advice.

Source: FindLaw, “What is Quid Pro Quo Harassment?,” accessed Oct. 28, 2016

DON’T LEAD SOMEONE ON IN THE WORKPLACE; BE DIRECT WHEN NEEDED

Yes, there’s a difference between quid pro quo sexual harassment and someone mooning over you in the workplace. The first is illegal and you have a lot of legal protection in dealing with it. The second is uncomfortable and, while it could eventually turn into a sexual harassment situation, does not necessarily involve the same legal protections while it’s simply a possible romantic interest you don’t return.

One expert on managing people in the workplace notes that simply being noncommittal all the time to avoid negative issues doesn’t work. If someone indicates interest in you or asks you out, there are only so many excuses you can make. Certainly, you can start with this tactic and hope they get the hint, but not everyone does, and continuing to avoid direct communication can even hedge the situation into harassment territory.

Instead, be honest but kind. In the most tactful way possible, tell the person that you are not interested and that you are beginning to feel like he or she is creating a hostile environment for you at work. After you’ve taken the steps to clearly communicate your lack of interest, if the person doesn’t stop his or her attentions, then speak with your supervisor or someone in human resources. A continued interest sexually or romantically after you have clearly declined could be harassment.

If you are dealing with something more than a sweet but misplaced interest, then consider speaking with a third party to find out about your options in California. If you are being propositioned for sex in exchange for some reward at work or feel you are being forced into romantic or sexual situations, then you might have the base for a sexual harassment case.

Source: Ask a Manager, “How to reject a coworker who’s romantically interested in you,” accessed Sep. 23, 2016

HIGH BURDEN OF PROOF MAKES SEXUAL HARASSMENT CASES DIFFICULT

Sexual harassment cases are often difficult to prove for a host of reasons. One of the issues that many people have is that the commonplace definition of sexual harassment often encompasses more events and types of actions than the legal definition. This makes it hard for a layperson to understand what types of activities would warrant legal action.

When it comes to sexual harassment, general claims are more difficult to prove than quid pro quo claims. This is because general sexual harassment claims would likely need to include more than one event in order to be considered actual sexual harassment in a court. Of course, one single event that is very serious in nature could be used to present an effective case.

Quid pro quo claims are often easier to prove than others because there would have been some blatant communication that said “if you do this specific sexual favor, you will get this specific employment reward.” Of course, it is possible that even these claims will be difficult to prove because the communication might be only verbal.

The burden of proof on the plaintiff in sexual harassment cases is high. This is the main reason why weaker claims regarding sexual harassment might not make it through the court system and result in a positive ruling for the plaintiff.

In California, companies have a legal obligation to take steps to prevent sexual harassment. If those steps aren’t in place, a sexual harassment claim might be a bit easier to prove. People who are being sexually harassed shouldn’t hesitate to take action, even if the case will be difficult to prove. Instead, work with someone familiar with these cases so that all appropriate methods of showing proof can be executed in your case.

Source: CNN, “What makes sex harassment cases tough to win,” Danny Cevallos, accessed Aug. 19, 2016

WAS THERE A CULTURE OF SEXUAL HARASSMENT AT FOX NEWS?

Many people hve heard about the recent sexual harassment scandal that led to the resignation last month of Fox News chief Roger Ailes from the network he started. It began with a lawsuit by former anchor Gretchen Carlson, whose contract was not renewed. She accused Ailes of harassing her and then retaliating against her. After Carlson filed her suit, almost 20 additional women claimed to have harassed by Ailes.

The network ordered an independent investigation into Carlson’s claims, which has included interviews with other female staffers. Current and former employees have gone public with stories of sexual harassment, including, reportedly, one of the network’s biggest stars, Megyn Kelly.

Often, when one person, particularly someone high up in an organization, engages in sexual harassment, the problem goes deeper. There may be a culture throughout the organization that allows harassment to occur and even enables it. (It should be noted that Ailes has denied the allegations against him.)

There have been conflicting reports about whether the law firm conducting the investigation at Fox News is looking into whether that culture existed or still exists at the network or whether the investigation is “winding down,” as one report said.

Employees who are suffering sexual harassment or any type of harassment or discrimination in the workplace have to be able to count on those in authority and on the human resources team to properly investigate and take action on their claims. When a culture exists in a workplace that looks the other way or even retaliates against an employee for reporting unacceptable and illegal behavior, that employee may have no choice but to take legal action. California attorneys with experience in handling sexual harassment cases can help people take that action and seek justice and compensation.

Source: Talking Points Memo, “NYT: Investigators Probing If Fox News Execs Enabled Ailes’ Alleged Harassment,” Katherine Krueger, Aug. 04, 2016

IS SEXUAL HARASSMENT TRAINING CONTRIBUTING TO THE PROBLEM?

A study from the U.S. Equal Employment Opportunity Commission notes that sexual harassment training that has become traditional in many workplaces during the past few decades isn’t as effective as many people think. In fact, the studies indicate that in some cases, the training might be counterproductive.

According to the EEOC, training in corporate and university environments tends to revolve around limiting the legal risks associated with sexual harassment incidents. That training might include information on identifying sexual harassment, how to report and deal with it and how organizations and managers can mitigate exposure. What it doesn’t do, says the EEOC, is actually curb the instances of misconduct in the first place.

Researchers have noted that traditional sexual harassment training may actually make some situations worse. They note that sexual harassment training as it is rolled out in many organizations actually reinforces certain gender stereotypes. It might also increase the likelihood that coworkers and others discount reports from victims and make participants — particularly men — less able to perceive when behavior is not appropriate.

There aren’t any easy answers to this conundrum, but researchers and others are beginning to call for a change in the way sexual harassment is taught about and addressed in workplaces and schools. The EEOC commission says that a lot of training being conducted isn’t working, and something needs to change.

As companies work toward a better understanding of and training for sexual harassment, victims are still experiencing threatening work environments and quid pro quo situations. If you are dealing with such a situation and haven’t found assistance within your workplace, consider reaching out to an employment law professional to discuss your options.

Source: The Guardian, “Sexual harassment training ‘not as effective’ in stopping behavior at work,” Sam Levin, June 28, 2016