Sexual Harassment

California’s New Sexual Harassment Laws: Removing The Hurdles To Justice

For decades, gender equality laws in California moved at a funeral pace. But in 2017, #MeToo lit a fire behind these movements, prompting swift response from State and Federal legislatures. Now, two years later, education about sexual harassment is mandatory, the bars for harassment claims are lowered, and institutions are taking aim against gender hierarchies. In 2019, the law is starting to catch up to the national recognition of equality.

Perhaps the most impactful California legislation to arise from the #MeToo movement is Senate Bill 1300, codified in Government Code Secs. 12964.5 and 12923. Prior to SB 1300, the law suggested a single act of harassment may not be sufficiently “severe” to meet the “severe or pervasive” standard required for a California sexual harassment claim. Thus, a judge could summarily adjudicate (throw out) a case if there was only one act of harassment, especially if that act did not involve sexual touching. Now, SB 1300 clarifies that a single incident of harassing conduct is enough to create a triable issue of fact for a hostile work environment claim if “the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” SB 1300 also includes a safety net for sexual harassment claims, clarifying that harassment cases “are rarely appropriate for disposition on summary judgment.” In other words, sexual harassment, even just once, should go to a jury to decide.

Prior to SB 1300, California law was unclear whether statements made by non-decision makers, or “stray remarks,” were admissible to show intent in a sexual harassment or discrimination case. Today, Government Code 12923(c) provides that a hostile work environment claim, “… depends on the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”

In 2006, the California Supreme Court opined in Lyle v. Warner Brothers Television Productions, that writers for the sitcom “Friends” could make sexual comments while writing the sexually-themed comedy show. However, employers used this narrow decision to argue other workplaces should also be allowed to engage in this sexual banter. But SB 1300 shot down the employer’s broad argument and stated the legal standard for sexual harassment “should not vary by workplace.” Instead, the California Legislature narrowed the Lyle holding by limiting the “nature of the workplace” defense to whether that type of sexual commentary is “integral to the performance of job duties.”

What does this mean for the harassment victim? The California Legislature has effectively removed many obstacles in a sexual harassment victim’s trek to a jury trial. These cases are extremely factual and rely heavily on witness credibility, and it should ultimately be up to the trier of fact to weigh this evidence.

If you believe you have been sexually harassed at work, you may have a case against your employer. For more information about your rights, and a free case evaluation, please contact us online or call us at (619) 342-8000

[Govt. Code 12923(b).

Lyle v. Warner Brothers Television Productions, 38 Cal. 4th 264, 286-294 (2006).

Prime v. Oliveira: A Rare Blow To Arbitration

On January 15, 2019, the US Supreme Court in Prime v. Oliveira issued a unanimous decision that the Federal Arbitration Act’s (FAA) exemption for “contracts of employment” now applies to independent contractors.  Prior case law simply applied this exemption to employees, but now the Supreme Court expanded the exemption to all transportation-type workers, including independent contractors. In other words, all transportation workers, whether an employee or independent contractor, are exempt from the FAA – the predominant statute employers use to compel arbitration.

As mentioned in previous blog entries, arbitration agreements eviscerate important legal rights a party has in court, and arbitration is no faster or cheaper than a matter you would see in a courtroom.  Instead, arbitration agreements load the deck for employers; thus, more and more employers include arbitration provisions in their employment/independent contractor agreements.  In fact, the use of arbitration agreements by private companies has exploded from 2 percent in 1992 to more than 55 percent in 2018.  While arbitration clauses are certainly on the rise, this ruling is a clear win for the plaintiff employee who seeks to vindicate her rights in court.

However, this is not to say transportation employees are completely immune to dastardly arbitration clauses.  Generally, the FAA, a federal act, preempts state arbitration laws. Now, transportation employees’ and independent contractors’ fight against arbitration will be waged using the applicable state law.  Fortunately, several state laws frown upon arbitration clauses (California bans arbitration clauses for wage claims, Montana prohibits arbitration clauses for workers’ compensation claims, and New Hampshire contains restrictions on employment arbitration), and a few states completely prohibit arbitration clauses in employment contracts (Iowa, Kentucky, South Carolina, and Rhode Island).  Indeed, the individual states are a potpourri of laws regarding arbitration and the results will undoubtedly be a mixed bag.

Nevertheless, this ruling is a win, albeit small, for employees, especially following a Supreme Court ruling which emboldened employers seeking arbitration.  The strongest obstacle to defeating arbitration clauses, the FAA, is no longer impeding the rights of transportation workers, whether they are employees or independent contractors.

If you have been harassed, discriminated against, wrongfully terminated, or otherwise wronged by your employer, and feel you might be hauled in arbitration, please contact us online or call us at (619) 342-8000.

Four Haeggquist & Eck Attorneys Named California Super Lawyers; Alreen Haeggquist Named To Top 25 Women, Top 50 Attorneys Lists

We’re thrilled to announce that Haeggquist & Eck attorneys Alreen Haeggquist, Amber Eck, Aaron Olsen, and Jenna Rangel have been selected to the 2019 California Super Lawyers list.  Each year, no more than five percent of the lawyers statewide are selected by the research team at Super Lawyers to receive this honor.

Haeggquist, the firm’s founding partner, was also selected for inclusion in the Top 25 Women San Diego Super Lawyers list and the Top 50 San Diego Super Lawyers list.

In addition, senior associate Jenna Rangel has been selected to the 2019 California Rising Star list.  No more than 2.5 percent of lawyers in California receive this honor each year.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.  The result is a credible, comprehensive, and diverse listing of exceptional attorneys.

Please join us in congratulating Alreen, Amber, Aaron, and Jenna for this incredible honor!

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Legal Woes of Valentine’s Day in the Workplace

On February 14, 2016, the day of romance is bestowed upon us. While the precise origins of Valentine’s Day, also known as Saint Valentine’s Day, remain murky, February 14 has become synonymous with romantic love.  The day is celebrated with the exchange of candy, flowers, gifts and cards between loved ones.

While love is in the air and love should be celebrated, when cupid makes an appearance in the office it can quickly translate into awkwardness, unprofessionalism, and even unlawful harassment and discrimination.

As Valentine’s Day approaches, it would be wise to think twice before using the day as an excuse to be a little more forward with a co-worker or more open about your love life.  For example, in Johnson v. West, a supervisor’s Valentine’s Day card that expressed the supervisor’s love for a subordinate employee, signed “Happy Valentine’s Day, Sweetheart,” was the straw that broke the camel’s back that culminated into a sexual harassment lawsuit by the employee against the supervisor and employer.  Below is a list of do’s and don’ts to keep things joyous, yet professional.

The Don’ts

Do not give gifts to one coworker and not others.  Singling out a select employee (or select group of employees) can turn out disastrous with missed expectations, misunderstandings, and hurt feelings.  If you are giving something to one, give it to all, or else the question of favoritism or unfair treatment is likely to make an appearance.  When the question of unfair treatment is raised, particularly when the gifts or treatment are associated with a day of romance, the basis of the unfair treatment is much more easily tied to a legally protected characteristic, such as gender or sex.  This in turn can equate to legal problems.

Do not give co-workers expensive or inappropriate gifts. This is particularly problematic when supervisors purchase expensive or inappropriate gifts for subordinates. Giving extravagant gifts can be viewed in a many different ways, including the not so good ways associated with sexual favoritism.

Valentine’s Day is not a justification for inappropriate behavior.  While Valentine’s Day should be celebrated, do not be over-zealous in your celebrating.  Being overly affectionate with co-workers may not only make them uncomfortable, but it could be viewed as flirting and, depending on the nature of the conduct, it could constitute harassment.

Do not allow your emotions to openly run wild. Valentine’s Day does not grant you a free license to express your emotions or opinions about your relationship or the relationships of others. Nor does the day give you free reign to act on the emotional attraction toward someone you may have had pent up inside you for the last year. Such conduct, while in appropriate cases could be welcomed, could be received as anything from inappropriate to harassment.

Do not share the details of your love life with co-workers.  As with the other “no no’s”, Valentine’s Day does not open the door to sharing the spicy details of your love life with co-workers. Even if you are close with your co-workers, the office is not the appropriate place to be discussing such details.

The Do’s

Do wish your co-workers a happy Valentine’s Day. Valentine’s Day has become of a day of celebration of love and sharing your love for those around you and for the work you do should not be viewed as per se taboo.  Wishing your colleagues a heart-felt Happy Valentine’s Day is appropriate, as long as the love is spread evenly and appropriately.

Bring small, inexpensive gifts or treats, such as cookies, for everyone in the office to share. Cookies, small treats, or desserts are a great way to show co-workers you care about them, without crossing the gray line of what could constitute inappropriate conduct.

Treat your employees to a company-wide dinner or other activity.  Showing your employees you appreciate them for everything they do for your company should be celebrated. Organizing a company-wide dinner or other activity is a great way to show appreciation for all employees, without implications of showing unfair treatment.

Use Valentine’s Day as an opportunity to share what you love about your job.  Focus not on the romantic components of a relationship with co-workers, but focus on their work. Share with co-workers what you believe to be their positive attributes as they relate to their job.  As always, keep it professional.

For more information about your legal rights in the workplace or if you have any questions or concerns about your job, please do not hesitate to contact an attorney at Zeldes Haeggquist & Eck, LLP.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Supervisors Can Be Liable for Harassment and Retaliation

In California, employers aren’t the only ones who face liability for harassment, including sexual harassment, and retaliation in the workplace. Individual supervisors are also liable for their own harassment and retaliation against employees.

Who Is Considered a Supervisor?

The law regarding sexual harassment makes employers strictly liable for sexual harassment committed by a supervisor. Therefore, it is important for employers, supervisors, and employees to understand who is considered a supervisor under the law.

The Fair Employment and Housing Act defines “supervisor” as “any individual having the authority to:

  • Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees
  • Direct them, adjust their grievances, or effectively to recommend a course of action based on their independent judgment.

Essentially, a supervisor is an employee who has the authority to make decisions on behalf of his or her employer relating to hiring, firing, promotions, rewards, and discipline. If a supervisor knew or should have known about harassment but failed to take actions to correct it, the employer can also be held liable.

Can Supervisors Be Held Personally Liable?

Depending on the case, an employee of a company can hold personal liability for acts of harassment, discrimination or retaliation. In addition to a supervisor’s personal liability, the employer is usually held liable for misconduct as well.

Your Right To Report Harassment and Discrimination

Under the law, you have a right to report workplace misconduct such as harassment or discrimination, and participate in workplace investigations of such conduct without fear of retaliation. If an employer or supervisor is making threats or engaging in retaliatory acts against you, contact an employment attorney immediately.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Men Can Be Victims Of Sexual Harassment in the Workplace

In a common sexual harassment scenario, a male supervisor sexually harasses a female subordinate by making sexually explicit comments, touching her inappropriately, or engaging in other harassing behavior. But sexual harassment isn’t just a “women’s issue.” Men are frequently victims of sexual harassment in the workplace, and California and federal law protect men and women from sexual harassment equally.

In a federal sexual harassment case brought under Title VII, the federal law which protects employees from sexual harassment and other forms of discrimination, the Ninth Circuit Court of Appeal found that men can be victims of sexual harassment. “It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome … whether one person welcomes another’s sexual proposition depends on the invitee’s individual circumstances and feelings. Title VII is not a beauty contest, and even if [the sexual harasser] looks like Marilyn Monroe” the victim might not be receptive to sexual advances in the workplace. EEOC v. Prospect Airport Services, 621 F.3d 991, 997 (2010).

In the Prospect case, a male employee was sexually harassed by his female co-worker. The female co-worker sent the plaintiff a series of love notes which ranged from merely flirtatious to sexually explicit. Despite the plaintiff repeatedly telling the harasser that he was not interested in her romantically, the harasser escalated her efforts, giving the plaintiff a semi-nude photograph of herself, and recruiting co-workers to pressure the plaintiff to go out with the harasser. The plaintiff was embarrassed and hurt by the harasser’s actions, and complained several times to several different managers, all of whom did not reprimand or discipline the harasser. Incredibly, one of the managers told the plaintiff he should feel flattered and sing to himself “I’m too sexy for my shirt.” Other co-workers began speculating that the plaintiff wasn’t interested in the harasser because he was a homosexual.

As a result of the sexual harassment, the plaintiff’s work performance suffered and he began seeing a psychologist. After failing to stop the harasser from sexually harassing the plaintiff, the defendant company terminated the plaintiff’s employment for performance issues. The Ninth Circuit found that the company was liable for the female sexual harasser’s behavior because “[m]en, as well as women, are entitled under Title VII to protection from a sexually abusive work environment … [and] the company knowingly denied [the plaintiff] protection.”

If you have been a victim of sexual harassment in the workplace, call Zeldes Haeggquist & Eck, LLP for a free case evaluation at (619) 342-8000 or contact us online.

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