A Closer Look at Two Forms of Workplace Sexual Harassment

Workplace Sexual Harassment – Defined

According to the EEOC, sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, as well as the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Under Title VII, there are two recognized types of workplace sexual harassment claims:

Quid pro quo sexual harassment is when a person in authority, usually a supervisor, demands that subordinates tolerate sexual harassment as a condition of employment decisions like promotions, assignments, or keeping your job. Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature is quid pro quo sexual harassment when:

  • submission to such sexual conduct is  explicitly or implicitly a term or condition of employment or
  • submission or rejection of the sexual conduct is the basis for employment decisions.

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.

A hostile work environment is created when sexual harassment makes a workplace environment intimidating, hostile, or offensive. Unwelcome sexual advances, requests for sexual favors, and other verbal sexual conduct is hostile environment sexual harassment when:

  • the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or
  • the conduct creates an intimidating, hostile, 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.workplace sexual harassment

Misconceptions of Workplace Sexual Harassment Claims

The EEOC reminds us that sexual harassment can occur in a variety of circumstances, including but not limited to the following:

  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser’s conduct must be unwelcome.

California Employment Lawyers

An attorney can advise you on your alternatives including whether the conduct you experienced in the workplace amounts to sexual harassment. The lawyers with Kingsley & Kingsley located in Los Angeles, California have a wealth of experience fighting for victims of sexual discrimination and harassment. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email here.

Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

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Recap of 2018 California Employment Law Changes

california employment lawCalifornia Employment Law Changes Enacted by the 2017 California Legislature

The California Legislature once again enacted numerous labor and employment laws addressing discrimination, harassment, compensation, hiring, and parental leave. A snapshot of each of these laws and their effective dates are summarized below. Employers with operations in California should understand how these laws change their policies, procedures and employee notification processes.

Hiring Practices and Enforcement

AB 168 bars employers from requesting, orally or in writing, the pay history of job applicants (either directly or through an agent, such as a third-party recruiter). Also, employers may not rely on salary history information as a factor in determining whether to hire the applicant or how much to pay the applicant. Applicants may voluntarily and without prompting disclose their salary history to a prospective employer. Effective January 1, 2018

Ban the Box

AB 1008 prohibits employers with at least five employees from asking, orally or in writing, job applicants about criminal conviction histories until a conditional offer of employment has been made. There are limited exemptions for certain positions, such as those where a criminal background check is required by federal, state or local law. AB 1008 also prohibits California employers from considering, distributing or disseminating information about certain types of arrests or convictions while conducting a background check following a conditional offer of employment. Once an employer has made a conditional offer of employment, it may seek certain criminal history information. However, before denying employment because of a criminal conviction, AB 1008 outlines several  specific steps that must be followed. Employers in Los Angeles and San Francisco are also required to comply with the local “Fair Chance” ordinances, which have additional requirements. Effective January 1, 2018

Workplace Harassment

SB 396, the Transgender Work Opportunity Act, requires California employers with 50 or more employees to expand the two hours of sexual harassment prevention training such employers are already required to provide under the Fair Employment and Housing Act to supervisors every two years (or within six months after an employee becomes a supervisor) to include training on gender identity, gender expression and sexual orientation harassment. Effective January 1, 2018

Retaliation and Discrimination 

SB 306 authorizes the Division of Labor Standards Enforcement (DLSE) to investigate an employer – “with or without receiving a complaint” – when the Labor Commissioner suspects retaliation or discrimination against a worker during a wage claim or other investigation. The Labor Commissioner will also be allowed to seek injunctive relief (that the employee be reinstated pending resolution of the claim) upon a mere finding of “reasonable cause” that a violation of the law has occurred. That injunctive relief, however, would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim. Effective January 1, 2018

Expansion of Fair Pay Act

AB 46 extends California’s Fair Pay Act to cover public employers. The Fair Pay Act prohibits wage discrimination on the basis of gender, race and ethnicity and previously only covered private employers. Effective January 1, 2018

Gender Discrimination

AB 1556 revises California’s Fair Employment and Housing Act by deleting gender-specific personal pronouns (such as “female,” “she” and “her”) in California’s anti-discrimination, anti-harassment, pregnancy disability and family/medical leave laws and replacing them with gender-neutral terms such as “the person” or “the employee.” Effective January 1, 2018

Worksite Immigration Protections

AB 450, or Immigrant Worker Protection Act, provides workers with protection from immigration enforcement while on the job and imposes varying fines from $2,000 to $10,000 for violating its provisions. Per AB 450, employers cannot give federal immigration enforcement agents access to non-public areas of a business without a judicial warrant, nor can they provide enforcement agents access to employee records without a subpoena or judicial warrant. Effective January 1, 2018

Parental Leave for Small Employers

SB 63, the New Parental Leave Act (NPLA), requires small businesses with 20 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected leave to bond with a new child. New Parental Leave must be taken within one year of the child’s birth, adoption or foster care placement. Effective January 1, 2018

Prohibited Discrimination Against Veterans

AB 1710 expands the current protections for members of the armed services by prohibiting discrimination in all “terms, conditions, or privileges” of employment. This legislation conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by protecting service members in civil jobs from hostile work environments. Effective January 1, 2018

Whistleblower Protections for Health Care Facilities

Section 1278.5 of California’s Health and Safety Code prohibits a health facility from discriminating or retaliating against a patient, employee, member of the medical staff or any other health care worker of the health facility because that person has presented a grievance, complaint or report to the facility, as specified, or has initiated, participated or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as specified. AB 1102 amends Section 1278.5 to increase the maximum fine for a person who willfully violates the aforementioned provisions from $20,000 to $75,000. Effective January 1, 2018

eeoc strategic plan

EEOC Still Seeking Input on FY 2018-2022 Strategic Plan

EEOC Strategic Plan  eeoc strategic plan

The U.S. Equal Employment Opportunity Commission (EEOC) is still seeking public comment on its draft Strategic Plan that covers Fiscal Years 2018 to 2022. The draft plan has not been approved by the Commission as comments are due by 11:59 pm ET on January 8, 2018.  The draft plan can be found at Regulations.gov. According to the EEOC, the Strategic Plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrim­ination and promoting inclusive workplaces through education and outreach, and organizational excel­lence. 

Every four years, Congress requires executive departments and agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The Strategic Plan for Fiscal Years 2018-2022 establishes a framework for achieving the EEOC’s mission to “Prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace,” so that the nation might soon realize the Commission’s vision of “Respectful and inclusive workplaces, with equal employment opportunity for all.”

EEOC Strategic Objectives

To accomplish its mission, the EEOC is committed to pursuing the following strategic objectives and outcome goals:

  1. Combat and prevent employment discrimination through the strategic application of EEOC’s law enforcement authorities. The corresponding outcome goals are: 1) Discriminatory employment practices are stopped and remedied, and victims of discrimination receive meaningful relief; and 2) Enforcement authorities are exercised fairly, efficiently, and based on the circumstances of each charge or complaint. 
  2. Prevent employment discrimination and promote inclusive workplaces through education and outreach. The corresponding outcome goals are: 1) Members of the public understand the employment discrimination laws and know their rights and responsibilities under these laws; and 2) Employers, unions, and employment agencies (covered entities) prevent discrimination, effectively address EEO issues, and support more inclusive workplaces.
  3. Organizational Excellence. The corresponding outcome goals are: 1) A culture of excellence, respect and accountability; and 2) Resources align with priorities to strengthen outreach, education, enforcement and service to the public. The plan also identifies strategies for achieving each outcome goal and identifies 12 performance measures (with yearly targets) to track the EEOC’s progress as it approaches FY 2022.

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sexual harassment arbitration

Ending Arbitration of Sexual Harassment

sexual harassment arbitrationAllegations of sexual harassment and misconduct against movie producers, actors, business leaders, and politicians are on the rise across the country.  So much so, a bipartisan group in Congress is blaming the increased use of nonpublic arbitration for keeping allegations quiet. Senators Kirsten Gillibrand, D-NY and Lindsey Graham, R-SC are leading a group of legislators seeking passage of a bill intended to prohibit sexual harassment and gender discrimination cases from being resolved privately in arbitration. The bill, Ending Forced Arbitration of Sexual Harassment, would prohibit businesses from enforcing predispute arbitration agreements of sexual harassment and discrimination claims covered under Title VII of the Civil Rights Act of 1964.

Definitions

Sexual Harassment

Sexual harassment can occur when a supervisor demands sexual favors from a subordinate in return for positive job treatment (or threats of negative consequences if the employee refuses to comply). Sexual harassment need not only be based on this type of quid pro quo activity however.

Any unwelcome conduct of a sexual nature which is so severe and pervasive that it creates a hostile work environment is also considered illegal harassment. In addition, it is not just a supervisor who can create a hostile environment – co-workers and even customers can create this atmosphere through inappropriate touching, obscene talk or gestures, graffiti, etc. This type of harassment can be perpetrated by females upon males as well as vice versa, and even among members of the same sex.

A “predispute arbitration agreement” is defined by the proposed bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” SB 2203 (Gillibrand) targets arbitration agreements that an employee might be asked to sign as a condition of getting hired or remaining employed.  The bill does not seek to eliminate predispute arbitration agreements in connection with other types of discrimination claims.

California Employers
 
SB 2203 does not address class action waivers, i.e. requiring that claims be asserted individually and not on a class basis. While class action waivers can exist outside the context of arbitration, they are not addressed in the bill. The bill also does not address the use of confidentiality agreements following the settlement of sexual harassment claims.

SB 2203 has just begun its journey in the U.S. Congress and it remains to be seen how it will be received. In the meantime, make sure you have anti-harassment policies in place and that you communicate them to employees in as many ways as possible to include handbooks, policy manuals, intranet sites, etc. And while recent media coverage has focused on sexual harassment, your policies should be broad enough to address harassment of any kind, including conduct based on individuals’ race, color, nationality, religion, disability and the like. Lastly, some employees may be unsure about what constitutes “harassment.” Your policies should describe what types of behavior or actions can constitute harassment, and that in no uncertain terms won’t be tolerated in any way.

California Employees

It is important for employees to know that they must make it clear that any conduct of a sexual nature is unwelcome. In other words, offended employees should tell the offender to stop. If the behavior continues, it should be reported to a supervisor or the human resources department in writing. Employees may be tempted to ignore the harassment, hoping it will not continue, but this frequently only makes the situation worse. And, staying quiet about it can potentially impact the employee’s legal rights here in California as well as in other states.

The labor and employment lawyers at Kingsley & Kingsley are well-versed in representing employees throughout California who have been the victim of sexual harassment. Our lawyers represent employees in civil litigation in state and federal courts, and in mediations and administrative hearings before boards and commissions such as the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC).

Proving sexual harassment can be challenging, but with the right legal team, it can be done. If you have been a victim of sexual harassment, there are a variety of ways that the qualified lawyers at Kingsley & Kingsley can assist you. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or by clicking here to contact us regarding your case.

 

fair employment posters

Updated Employment Posters from California Department of Fair Employment and Housing

fair employment postersThe California Department of Fair Employment and Housing (DFEH) has been busy in 2017, releasing updated posters covering Employment Discrimination, Family Care and Medical Leave (CFRA Leave), Pregnancy Disability Leave, Sexual Harassment, Pregnancy Discrimination, and Workplace Harassment. DFEH has organized the posters on their website, categorized by the poster/brochure audience or intent (i.e. those that are required versus those designed for employment, housing, business establishments, or hate/violence).

Required Posters  

DFEH has placed all required posters and brochures on a single webpage in multiple languages. Even with the numerous updates, DFEH points out the absence of changes in some posting obligations. Employers may post any version of the Workplace Discrimination poster (titled: California Law Prohibits Workplace Discrimination and Harassment / DFEH-E07P-ENG / formerly DFEH-162) from December 2014 to the present. Also, employers may post any version of the CFRA/Pregnancy Disability Leave notice (DFEH-100-21) from July 2015 to the present. Lastly, employers may post any version of the Rights and Obligations as a Pregnant Employee notice (DFEH-100-20) from April 2016 to the present.

All California employers are required to display the following poster:

Most California employers also must display two other posters:

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employee misclassification uber

Employee Misclassification – Uber’s Roller Coaster Ride from Florida to California

Earlier this year the ride-sharing company Uber scored a victory in its legal battles of whether Uber drivers should be classified as employees or independent contractors. In this most recent California case of employee misclassification, Uber Technologies Inc. reached a settlement offering its drivers an average of about $1 apiece to dispense with alleged labor-code violations that their lawyer claimed might have been worth billions of dollars.   employee misclassification uber

The ride-hailing company, along with the drivers’ lawyer, asked a state judge in Los Angeles in February to approve a $7.75 million agreement to resolve claims stemming from its refusal to give California drivers the protections and benefits of employees. The accord allows Uber to keep classifying the drivers as independent contractors.

Here’s a brief  rundown of other milestone cases against Uber:

  • A 2015 California court decision determined that Uber drivers were employees entitled to certain benefits.
  • Uber agreed to pay $100 million that appeared to resolve a massive class action case in April 2016
  • Uber faced a rejection of that settlement by a federal court judge in August 2016 as the judge believed the resolution was not adequate.
  • A 9th Circuit ruling in September 2016 handed Uber a significant victory by upholding the company’s previously stated arbitration agreements.
  • In February of this year, a Florida state appellate court ruled that Uber drivers are independent contractors, not employees, and therefore not entitled to unemployment compensation benefits when their working relationship with the ride service terminates.

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