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Sexual Harassment at the Workplace

As the recent sexual harassment scandals have came to light from Hollywood and powerful actors, executives and  producers reminds us that Sexual Harassment is alive and well.  Employees should report sexual harassment at the workplace. Consult with a workplace attorney if you are experiencing sexual harassment.

The  U.S. Equal Opportunity Employment Commission (EEOC) defines workplace sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from persistent offensive sexual jokes to inappropriate touching to posting offensive material on a bulletin board. Sexual harassment at work is a serious problem and can happen to both women and men.

 

Both state and federal laws protect employees from sexual harassment at work. Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. While Title VII is the base level for sexual harassment claims, states have sexual harassment laws which may be even more strict. Check the laws of your state for more information.

 

This article will outline the two types of workplace sexual harassment, employer liability, and strategies and procedures to put an end to the behavior.

 

Types of Sexual Harassment

 

Under Title VII there are two recognized types of sexual harassment — 1) quid pro quo and 2) hostile work environment.

 

Under the quid pro quo form of harassment, a person in authority, usually a supervisor, demands that subordinates tolerate sexual harassment as a condition of getting or keeping a job or job benefit, including promotions and raises. A single instance of harassment is sufficient to sustain a quid pro quo claim (e.g., a superior demands you kiss her/him in order to keep your job), while a pattern of harassment is typically required to qualify as a hostile work environment.

 

Hostile work environment harassment is grounds for legal action when the conduct is unwelcome, based on sex, and severe or pervasive enough to create an abusive or offensive working environment. Elements which courts analyze in determining whether a hostile environment harassment claim is valid include:

 

Whether the conduct was verbal, physical, or both;

Frequency of the conduct;

Whether the conduct was hostile or patently offensive;

Whether the alleged harasser was a co-worker or supervisor;

Whether others joined in perpetrating the harassment; and

Whether the harassment was directed at more than one individual or singled out the victim.

In any sexual harassment case, the alleged victim will have to meet a subjective and objective standard. In other words, the plaintiff must show that:

 

he/she subjectively believed the conduct was hostile, abusive, or offensive; and

a reasonable person in the plaintiff’s position would objectively believe the conduct was hostile, abusive, or offensive.

Employer Liability

 

Only employers with 15 or more employees are subject to Title VII. For companies with fewer than 15 employees, state law governs — and most states have enacted laws covering such circumstances. If either quid pro quo or hostile work environment harassment can be proven, employers may be liable for compensatory (monetary loss, pain and suffering) and punitive damages. Liability may depend on who committed the harassment (superior or co-worker) and what action the company took to correct it.

 

If the harassment is committed by a superior and:

 

There is tangible employment action (firing, demoting, negative changes in assignments or responsibilities), the employer is liable.

The harassment is hostile work environment, then the employer is liable. The employer’s defense to liability is that it 1) exercised reasonable care to prevent the harassment and took prompt corrective action to stop it once made aware, and 2) the employee unreasonably refused to take advantage of the corrective measures.

If the harassment is committed by a coworker:

 

the employer is liable if it knew or should have known about the harassment, unless the employer took immediate corrective action.

Strategies to Stop the Harassment

 

With the above legal standards for sexual harassment at work in mind, victims of harassment also bear the burden of attempting to end it. There are several levels of escalation to employ in putting an end to workplace sexual harassment. First, you should personally try to end it. If that doesn’t work, look at your employee handbook or manual and see what policies the company has in place and take your complaint to that level. No matter what, you should document everything (each instance of harassment, what actions were take by superiors, etc.), as it will only add to the strength of your case.

 

Personally Inform the Harasser His Actions Are Offensive

 

While this is the most difficult act for victims of harassment, it is ultimately the most effective method of ending the behavior. The harasser may not even be aware that her/his behavior is offensive, and it is always best to “nip” it in the bud before inappropriate comments or jokes, left unchecked, turn into something uglier.

 

If you are uncomfortable facing the harasser, write a short letter or email letting her/him know you want the behavior to stop. If you’re uncomfortable doing this, tell a supervisor. If you write a letter, make a copy. If you write an email, send it from a company email address. You’ll want to document every action that’s taken by you, along with the response.

 

Human Resources and Supervisors

 

If there is no lessening of the harassment after personal appeals to stop, then escalate your complaint to the next level. Be sure to follow all company protocols dealing with sexual harassment (and document everything to show that you took every action the company recommended). At each step, if you don’t get the proper response from management, continue escalating the complaint up the chain of command.

 

Write It Down

 

The reason for following company procedures and documenting everything is simple: if you don’t follow company procedures and give them a chance to stop the harassment, you will likely lose in court. So complain within the company, let them know about the situation, document it, and keep backups in files away somewhere safe away from the workplace.

 

Documentation does not end at keeping emails and memos to co-workers and supervisors. You should write down each instance of harassment as they happen. This includes specific information, in addition to date and time, such as the people involved, onlookers if any, their reactions, how the event made you feel and affected your work and general well being, etc. Keeping a journal of such events will strengthen your case and allow you to recall events clearly without worrying about forgetting or mis-remembering details.

 

Employer Retaliation is Illegal

 

Employers are prohibited from retaliating against employees who file complaints. While this may hold some comfort, employees know that in the real world retaliation in some form may occur. Therefore, it would be wise to get a copy of your personnel file before you file a complaint. If you have this in hand, you’ll have documentation of positive past work performance and evaluations in the event that the company retaliates by demoting or transferring you while claiming you have a poor track record. In these litigious days, the wisest move is to expect the worst (a lawsuit to settle your claim) and prepare accordingly.

 

Government Intervention

 

In order to file a civil lawsuit under Title VII, you will first have to send your complaint to the EEOC, the federal agency that enforces Title VII. Only after the EEOC investigates and no settlement is forthcoming can you file a Title VII lawsuit. State agencies may have different policies, so be sure to investigate those further. Make sure to file your claim before any federal or state statutes of limitation expire.

 

Have a Local Attorney Evaluate Your Harassment Claim for Free

 

A male coworker has made what sounds to you like a sexual innuendo, but you can’t be sure. However, this same individual has made similarly inappropriate comments toward women in the past. Is it harassment? And if so, do you have a strong enough case to file a claim? It’s not always so easy to make this determination, but an experienced attorney can help. Get a head-start today by having a local employment law attorney evaluate your potential claim at no charge.

 

Disability Discrimination

Employers cannot discriminate against you for your disability.  If you think that you have been discriminated against because of your disability and your employer acted against you because of your disability contact an employment lawyer today!

If you get hurt you may be disabled and unable to work.

You should complain to your employer about their mistreatment of you and your disability.

Mental illness is a disability You should inform your employer about your disability.  Contact an employment lawyer from Berlingieri Law today for a free consultation.

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Employer Fires Employee for Attending Political Protest

A Berkeley, California restaurant terminates an employee for his political beliefs after learning he attended a political protest in Charlottesville, Virginia.

Employee’s free speech are not always protected. Employers can fire employees at will.  There is little to no protection for those who attend these rallies and have no other protected class.

Is participating in a political protest protected activity?  IF the protest is a bout a protected class – for both sides.   The protests could be considered defensible under Title VII simply because it has to do with a protected characteristic  A few local governments maintain protections for employees’ political affiliations, including in Washington, D.C., Puerto Rico, the Virgin Islands and Wisconsin. But political views are not a protected class under federal Title VII civil rights protections, unlike factors such as race, sex or religion.

More firings could follow, as a Twitter page “Yes You’re Racist” has attempted to name and shame the white nationalists who attended the rally Friday night and Saturday.

This public shaming of those involved in the protest comes shortly after a Google engineer was terminated by the tech giant for a controversial memo that, among other things, decried the company’s diversity efforts and said women were not biologically suited for the technology industry.

Employers trying to decide how to cope with a white supremacist or someone holding other discriminatory views have to consider their jurisdiction and the nature of the employee’s speech and affiliation.

Government employees do have a right to free speech, but are limited in terms of what they can say in the workplace. Workers at private employers have less leeway under the law to say whatever they please.

 

Employees should think twice before attending these type of violent protests on both sides of the issues because it could lead to termination if the employer finds out.

Google Fires Engineer for Giving Opinion on Gender

Google terminates engineer after internal leak of his objective opinion on gender in the google workplace.

Google Director responds to employee’s opinion about gender at google.

Know your Workplace Rights

If you have questions about employment law contact an attorney at Berlingieri Law, PLLC today.

New York City Employers Cannot Ask Job-Seekers About Salary History

NYC Employers, Beware of What You Ask Your Applicants and Employees: NYC’s Salary History Inquiry Ban

On May 4, 2017, Mayor de Blasio signed into law an amendment to the New York City Human Rights Law, which makes it an “unlawful discriminatory practice” for an employer to inquire about or investigate an applicant’s salary history. New York City joins Massachusetts and Philadelphia with similar bans.

Specifically, the law prohibits employers from:

  •  Asking an applicant about his/her salary history, benefits or other compensation;
  • conducting any search through publicly available databases for information about an applicant’s salary history and
  • considering an applicant’s salary history in determining the compensation package to offer the applicant, unless the applicant “voluntarily” and “without prompting” discloses his/her salary history.

 

 

The law allows employers to ask the applicant about his/her salary expectations, including whether any unvested equity or deferred compensation would be forfeited if the applicant left his/her current employment.

The law goes into effect October 31, 2017. The New York Commission on Human Rights is the agency charged with enforcement and the penalties for violating the law are steep. The Commission may impose a civil penalty up to $125,000 for an unintentional violation, and up to $250,000 for a “willful, wanton or malicious act.”  An individual may also file a lawsuit and recover backpay, compensatory damages and attorney’s fees.

Employers should update their applications to eliminate the question about salary history and inform everyone involved in the hiring process (including external recruiters) about the laws mandates.

 

FBI Director Fired After Several Critical Mistakes

At -will employment – political appointees do not have real job security. Top FBI employee fired for “poor performance” says the White House.  President Trump Condones FBI Director’s Termination.  On May 9, 2017 Attorney Jeff Sessions terminated embattled FBI Director James Comey.  The decision to terminate Comey, an Obama appointee, came after months of debate whether to terminate Comey for his handling of the Wikileaks and Hilary Clinton email scandal and there is an inspector general investigation amidst his 206 conduct.  President Trump sent Comey a letter while Comey was on a trip in California.   The Hilary Clinton email scandal investigation and his press conferences before the election could be perceived as poor performance and grounds for the administration’s termination.  FBI directors have been terminated before – including Bill Clinton’s termination in 1993, of William Sessions after the Justice Department’s Office of Professional Responsibility said the FBI director had engaged in unethical practices, and after Sessions refused to resign, and Richard Nixon’s termination of special prosecutor of Archibald Cox in 1973 on the so-called Saturday Night Massacre, where Nixon’s attorney general, Elliot Richardson, and deputy attorney general, William Ruckelshaus, both cowardly resigned when Nixon asked them to fire Cox.

Many top Democratic leaders including Hilary Clinton have called for Comey’s resignation, yet now decry the administration’s handling of the termination.

Senator Chuck Schumer said at an impromptu press conference to proffer a pretext and/or theory that Comey’s termination was uncalled for and suggested a cover up because of Comey’s lead of an investigation.

Former Trump Campaign communication director Jason Miller said to CNN “Comey should have been fired by the Obama administration in 2016” and that “no one says Comey needed to stay where he was.”

Sexual Harassment Claims End Bill O’Reilly’s Career at Fox News

Multiple women over more than 2 decades have accused Bill O’Reilly of sexual harassment at work.  The host of the O’Reilly factor – the hit Fox News prime-time show – has paid millions of dollars in settlement funds to women and has confidentiality agreements to keep the women from sharing their stories.

Ultimately, scandal after scandal Fox News had enough and decided to terminate Bill O’Reilly despite recently renewing his contract for 20 million dollars per year and being the network’s top talent.  O’Reilly stands to get a year’s worth of pay for his departure.

The Rupert Murdoch and sons – (Fox News owners) are veering the network in a new direction after parting ways with long time head Roger Ailes and and  O’Reilly amidst other sexual harassment allegations.

The  sudden departures of long time employees like O’Reilly and Ailes stem from a workplace apparently rampant with sexual harassment.

Fox News wanted to distance themselves from any liability and has severed ties with their star of over 20 years.

Gender equality and sexual harassment are issues that all people should pay attention to at the workplace.

A source close to the scandal said that “O’Reilly would have been fired years ago if it was someone else.”

Sexual harassment, discrimination and retaliation based upon reporting sexual harassment are illegal under state and federal law. If sexual harassment is occurring to you or someone you know report it and contact an employment attorney to help you better deal with the situation.  Workplace inequality and  asexually charged work atmosphere are unacceptable and should not be tolerated in 2017.

 

United Airlines Makes Room for Employees and Drags Doctor off Plane

Passenger brutally dragged off United flight from Chicago, IL, to Louisville, KY, to make room for employees.

Despite the harsh nature of the passenger’s treatment United acted legally and within the law, the controversy here is on the airlines response and justification of its actions.  Public outcry and support for the airline has been widespread.

The main question is should employees take precedent ofver customers.  Perhaps in some circumstances where here it was apparent that if one of its employees could not operate another flight in the near future the great harm would be to the business, not one customer.  Here, the airline’s response initially and after the incident was shocking and outrageous.  The passenger was “belligerent” says Oscar Munoz, United CEO, in a letter to employees shortly after the April 10, 2017

United’s CEO Oscar Munoz justifying the heartless reaction – said that “we need to get facts and circumstances” and that  “our initial responsefell short of expressing how were feeling”.

According to Gov. Chris Christie -United Airlines runs 80% of flight traffic out of Newark International Airport.  United Airlines seeks to put employees in front of other customers at almost any expense.   Later footage shows the Doctor saying that he wants to go home and to “just kill me” — thats how many feel with United in control of most flights at Newark International airport.

Passengers say United  initially offered $US400 and then $US800 in vouchers and a hotel stay for volunteers to give up their seats – yet no one budged.

 

This is what ensued.