Same-Sex Sexual Harassment Claims: Just as Powerful as Opposite-sex Harassment Claims

The right to work in an environment free from sexual or gender based harassment is a federal and California civil right. Sexual harassment includes the the unwanted and unwelcomed visual, verbal or physical conduct that is sex-based or of a sexual nature or requests for sexual favors. If an employee is sexually harassed by his or her supervisor, an employer is liable for those damages incurred by the employee as a result of the sexual harassment. But is an employer potentially still liable for sexual harassment that occurs between an employee and supervisor of the same sex?

Sexual Harassment Attorney – Same Sex Harassment?

In recent a case from this year, Lewis v. City of Bencia, Brian Lewis, a paid intern and heterosexual man, sued his former employer, the City of Bencia, and his former supervisors for sexual harassment and retaliation. Lewis’ supervisor showed him pornography on the office computer and consistently told him inappropriate sexual jokes. The supervisor also bought Lewis lunch on numerous occasions and gave him numerous gifts while Lewis was employed with the City. One such gift was tuxedo underwear. Lewis claimed that the supervisor had asked whether he can visit Lewis’ home and once asked Lewis why he has not kissed him yet. On another occasion, a different supervisor also showed Lewis pornography on the office computer.

Continue reading “Same-Sex Sexual Harassment Claims: Just as Powerful as Opposite-sex Harassment Claims” »

Leave a Comment

Filed under Harassment, Sex Discrimination, Sexual Harassment, Sexual Orientation Discrimination

California Labor Law Update: Sexual Harassment Protection

Every year, the California legislature passes new employment laws or amendments to already existing laws. These new laws and amendments directly impact the employer-employee relationship as well as impacts the way an employer conducts business in California. There were dozens of new labor laws and changes to existing laws passed in California in 2014.

Sexual Harassment Attorney – Free Consultation

One such amendment to an already existing law, Government Code 12940, clarifies the definition of sexual harassment in the workplace. Prior to 2014, due to a 2013 appellate decision, there was some confusion within the California courts as to whether there needs to be sexual desire of the perpetrator to establish a legitimate sexual harassment claim. Senate Bill 292 directly addressed this issue.

Senate Bill 292 was passed by the California legislature in 2013 and went into effect January 1st, 2014. Senate Bill 292 holds that sexual harassment is prohibited under California law without regard to the sexual desire of the perpetrator. The legislature reasoned that like other forms of harassment, sexual harassment does not always need to be motivated by desire, but more often can be motivated by hostility. In addition, by passing this bill, the California legislature effectively suppressed the confusion within the California courts as to whether sexual desire is needed to establish a legitimate sexual harassment claim.

Sexual Motive Not Necessary for Sexual Harassment Cases in California

However, before Senate Bill 292, California courts have long recognized that a sexual motive or desire is not required for legitimate sexual harassment claim. For example, in Pantoja v. Anton, a former employee brought an action against the employer for sex discrimination under the Fair Employment and Housing Act. The Court held that a plaintiff “need not show that the [sexual harassment] conduct was motivated by sexual desire.” Again, more than two decades before Senate Bill 292 was passed, in Mogilegsky v. Superior Court, in which an employee brought action against the employer for same gender sexual harassment by a supervisor, the Court held that “the focus of a cause of action [for sexual harassment] is whether the victim has been subjected to sexual harassment, not what motivated the harasser.”

Ultimately, Senate Bill 292 clarifies what has already been recognized by California courts, that sexual harassment under the Fair Employment and Housing Act does not require proof of sexual desire towards the plaintiff. At the end of the day, this is a great result for plaintiffs seeking damages due to sexual harassment in the workplace, especially if that harassment is caused simply by hostility and not sexual desire.

2 Comments

Filed under FEHA – Fair Employment & Housing Act, Harassment, Sexual Harassment

Sheldon Cooper on How Not to Behave in Court

While this video isn’t about employment law, it does demonstrate improper courtroom demeanor. Sheldon Cooper (Jim Parsons of the Big Bang Theory) decides to insult a traffic court judge and finds himself in contempt. Hilarious.

1 Comment

Filed under Uncategorized

Arbitration is Bad for Employees. Trust me, I’m an Employee Rights Attorney.

Before I went to law school, I thought arbitration sounded neat. I had heard that lawsuits took years to resolve in court and were ridiculously expensive. Arbitration, on the other hand, sounded like an effective alternative to court. What is arbitration? As opposed to going to court, the feuding parties choose a “neutral” third party to review the facts, hear-out both sides, and make a ruling. Many proponents of arbitration say that it is faster, cheaper, and more fair. It’s not. Arbitration is bad for employees. Why? No jury. No media. No appeal. Period. Just an old white guy (usually) who rules with an iron fist. For those of you who like bullet points, here is a quick list of reasons why arbitration hurts employees:

Arbitration is Bad for These Seven Reasons

  • Unlike courts, arbitration is not a public system. Why is this bad? Because a company may repeatedly break the law, get sued in arbitration, but the public never finds out and there is no pressure on the company to ever make a change.
  • Unlike a judge in court, the arbitrator is not neutral. First, major corporations are constantly in arbitration against employees, and the corporation generally handpick arbitrators from firms with proven records of favoring the corporation. If word gets around that arbitrator ruled for an employee, the arbitrator gets blackballed by defense lawyers and goes out of business. It has happened. Second, and worse, many of these “neutral” arbitrators are under contract with corporations that engage in multiple cases. This is an enormous conflict of interest. Third, the company pays the majority of the arbitrators fee, essentially guilting the arbitrator to rule for the company.
  • Arbitrators do not have to reveal the reasons for his or her decision. They can say, “Company wins” and go home and take a nap. They are not legally accountable for errors, and their decisions do not set legal precedent for future cases.
  • Even if an arbitrator’s decision is legally incorrect, it still is enforceable, and there is nothing you can do about it. There is virtually no right to appeal an arbitrator’s ruling.
  • Generally, the company chooses the city or town where the case is heard, allowing it to make the case inconvenient, expensive, and unfair for employee bringing the complaint.
  • Arbitrators are not required to know the law relevant to the cases they adjudicate, follow legal precedents, or even be lawyers. Although most arbitrators are lawyers, it isn’t even a requirement!
  • Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.

How to Avoiding Arbitration in Employment Disputes

  1. Don’t sign the arbitration agreement! This is the easiest way to avoid this mess. Arbitration is a contract, and contracts are not enforceable unless two parties agree. You don’t have to agree to it. If your employer asks you to sign an employment agreement, cross out the arbitration provision, initial and date it, and then give it to the employer. There is a risk that they won’t hire you, but if you’re a valuable hire I bet that many employers would simply ignore your failure to agree and hire you anyway. Make sure you get a copy of the revised agreement when you first get hired.
  2. Regardless of an existing signed arbitration agreement, have your lawyer file your case in court anyway. In many cases, the arbitration agreement is unenforceable due to various legal doctrines.

There is much more I could write on this subject. But I wanted to keep this article brief and to the point. Arbitration is bad and you should avoid it at all costs!

2 Comments

Filed under Arbitration, Uncategorized

Retaliation & Wrongful Termination in the Aerospace Industry

Many employees are retaliated against in the workplace. But not all retaliation or terminations are illegal.  This article discussed the case of Green v. Ralee Engineering Company. This case analyzes whether a company may fire an employee who complains about the failure to follow quality inspection protocols. In this case, the company manufactured airplane parts that were critical in keeping the plane safe.

Facts of the Wrongful Termination Case

In the mid 1990′s Ralee Engineering Company was sued by a former employee, Richard Green.  While employed, Mr. Green was a Quality Assurance Inspector. His duties were to inspect Ralee’s manufactured fuselage and wing components for military and civilian aircraft. Ralee supplied those parts to major airline assembly companies such as Boeing and to major war plane assembly companies such as Northrop.

Beginning in 1990, Mr. Green allegedly noticed that Ralee was shipping some airplane parts even though, according to him, they failed the inspections his team performed. On several occasions over the next two years, Mr. Green objected to Ralee’s practice to supervisory and management personnel and to the company president. He made all of his complaints internally, and at no time did he complain to outside government sources.

Despite his complaints, Ralee continued to ship allegedly defective parts to Boeing. In an effort to provide proof of the ongoing practice, plaintiff began photocopying the inspection reports, including some reports concerning parts destined for Boeing. In March 1991, Ralee shut down its night shift, citing a downturn in orders for the parts it produced. Ralee then fired Mr. Green along with other night shift employees.

Mr. Green filed a timely wrongful termination lawsuit against defendant. His attorney alleged Ralee terminated him in retaliation for his complaints about its inspection practices. His lawyer also argued that his complaints served a broad public policy favoring aviation safety, entitling him to tort damages even though he was an at-will employee.

Continue reading “Retaliation & Wrongful Termination in the Aerospace Industry” »

1 Comment

Filed under Uncategorized, Wrongful Termination

New CA Employment Law – Protecting Victims of Violent Crimes

Governor Brown signed into law SB 288 this year. The bill adds Section 230.5 to the California Labor Code. The new law makes it illegal for employers to fire employees who are victims of violent crimes who take time off to attend court proceedings.

The offenses include all of the following:
  • (A) Vehicular manslaughter while intoxicated
  • (B) Felony child abuse likely to produce great bodily harm or a death
  • (C) Assault resulting in the death of a child under eight years of age
  • (D) Felony domestic violence
  • (E) Felony physical abuse of an elder or dependent adult
  • (F) Felony stalking
  • (G) Solicitation for murder
  • (H) A serious felony
  • (I) Hit-and-run causing death or injury
  • (J) Felony driving under the influence causing injury
  • (K) Sexual assault (there are many different types contemplated by this statute)

 

43 Comments

Filed under Victims of Crime, Wrongful Termination

California Employment Lawyer’s Association Annual Conference was a Raging Success

CELA Annual Conference Employment Workplace Lawyer AttorneyFor the past few days I’ve been absorbing information at the California Employment Lawyers Association (CELA) annual conference. It has been an astounding event, full of highly intelligent and successful lawyers who deeply care about California worker’s rights.

I’ve seen presentations on wage and hour class actions, individual wage and hour cases, representing undocumented workers, updates on the evolving law concerning class waiver provisions in unconscionable arbitration agreements, and detailed analysis on the Harris v. City of Santa Monica mixed motive case. In all, if you practice employment law and you don’t go to this conference, you’re missing out on incredible tips, tricks, and strategies.

I’ve also had the pleasure to meet some highly regarded lawyers: Lawrence Bohm, Bryan Schwartz, and Glenn Kantor. I’ve seen presentations by David deRubertis, Michael Singer, and Cliff Palefsky. I can only hope that one day I’ve accomplished half of what these amazing individuals have accomplished. Keep up the good work!

Leave a Comment

Filed under Class Actions, Employment Law, Uncategorized

Governor Brown Raises California Minimum Wage

Governor Brown Raises Minimum Wage in CaliforniaGovernor Edmund Brown will join business owners, legislators and dozens of working Californians tomorrow in Los Angeles and Oakland to sign AB 10 by Assemblymember Luis Alejo (D-Salinas), which will raise the minimum wage in California from $8.00 per hour to $10.00 per hour.

AB 10 will raise California’s minimum wage in two one-dollar increments, from $8 per hour today to $9 per hour, effective July 1, 2014 and from $9 per hour to $10 per hour, effective January 1, 2016.

Specifically, AB 10 will amend Section 1182.12 of the Labor Code is amended to read:

1182.12.

Notwithstanding any other provision of this part, on and after July 1, 2014, the minimum wage for all industries shall be not less than nine dollars ($9) per hour, and on and after January 1, 2016, the minimum wage for all industries shall be not less than ten dollars ($10) per hour.

2 Comments

Filed under Labor Law, Minimum Wage, Wages and Hours

News: Top 10 Reasons Employers Get Sued & Clarification Regarding Male Sexual Harassment

Employment Attorney, Labor Lawyer, Employee Rights, Sexual HarassmentHR California posted a interesting depiction of the top 10 things employers do to get sued in California. I agree with a few of them. HR California is a information source for employers to protect themselves against employee lawsuits. I think they do some decent work in helping employers comply with California’s stringent laws.

In other employment news, Governor Brown just amended California’s main sexual harassment law. SB 292 was recently passed by the California Legislature to overrule Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. This amendment, authored by California Senate Majority Leader Ellen M. Corbett (D-East Bay) is a direct response to the case. Kelley is  a terrible decision that harms male employees suffering sexual harassment in California. In Kelley, the Court ruled that although the male worker was subjected to a “barrage of sexually demeaning comments and gestures by his male supervisor” that were “graphic, vulgar, and sexually explicit,” his claim of sexual harassment failed because the male employee could not prove that “the harasser was homosexual” or was “motivated by sexual desire.”  The Court further stated: “The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment.” SB 292 rectifies this illogical result, and shifts the focus back to whether the harasser targeted the victim because of his or her gender, not whether the harasser had sexual intent or desire for the victim.

In a press release, Senator Corbett stated: “SB 292 ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law. I thank Governor Brown for signing this important legislation that protects all individuals whenever they are sexually harassed in the workplace, regardless of motivation. As elected officials, we must always strive to protect all Californians, regardless of gender, sexual orientation, race or any other personal characteristic.”

In todays workplace, employment lawyers like myself are seeing more male-on-male sexual harassment. Most male supervisors know they cannot sexually harass females, but they often don’t think that they can be punished for bullying a male subordinate. This amendment helps give lawyers the tools they need to punish those who behave this way.

 

2 Comments

Filed under Harassment, Sexual Harassment

Harris v. Bingham McCutchen – Victory on Arbitration Issue

Robert Odell Arbitration Harris v. Bingham McCutchenEarlier this month, the California Court of Appeal denied mega law firm Bingham McCutchen’s attempt to have a wrongful termination lawsuit (filed against them by a former associate, Hartwell Harris) thrown out of court and into binding arbitration. (Click here read the court’s decision).

All all three justices in Division Five of California’s Second Appellate District unanimously agreed that Bingham’s arbitration agreement (which forces all of its employees to arbitrate their claims against the company rather than file lawsuits in court) was invalid under Massachusetts law, which was also Bingham’s own choice in drafting their agreements.

Law Firm Fails to Enforce its Own Arbitration Clause

Ms. Harris worked for Bingham in their Santa Monica, CA office as a litigation associate from May 2007 until February 2011 when she was fired after developing a rare sleep disorder called Delayed Sleep-Phase Syndrome. She later filed a lawsuit against Bingham in November 2011, claiming that, despite her positive reviews, Bingham terminated her once they learned of her disability and need for accommodation while she returned to a normal sleep cycle.

After the lawsuit was filed in Los Angeles Superior Court, Bingham moved to compel the case to binding arbitration, citing the arbitration clause in Harris’ employment contract.  Presiding Judge Mel Red Recana, however, agreed with Harris’s attorney, Tamara S. Freeze, and denied Bingham’s arbitration petition on the grounds that the provision was not enforceable under Massachusetts law, which Bingham had decided would control the contract.

Bingham then appealed the trial court’s decision, however, the California Court of Appeal affirmed the lower court’s denial in a strong 3-0 decision – both ordering their opinion to be published in the appellate records and ordering Bingham to pay Harris her costs on appeal.

Attorney Reaction

Regarding the appeal, the Law Offices of Tamara S. Freeze has stated on their blog:

“Ironically, Bingham McCutchen knew their arbitration agreement, as originally drafted, was invalid in light of a 2009 Massachusetts Supreme Court opinion: Warfield v. Beth Israel Deaconess Medical Center, Inc. but apparently forgot to update it. Indeed, Bingham’s own attorneys published a press release on their website warning their clients about this new law and how it would affect arbitration agreements . . . a warning that Bingham apparently failed to heed itself. For obvious reasons, the publication has since disappeared from Bingham’s website (but we still have a copy HERE).”

Hartwell Harris was represented by Tamara Freeze, Robert Odell, Allison Lin and law clerk Harrison Brown.

 

1 Comment

Filed under Disability Discrimination, Disabling Injury and Illness, Discrimination

Dealing with the Effects of Sexual Harassment

Dealing with Sexual Harassment at Work Employment AttorneyEmployment Law Attorney – What are the effects of sexual harassment? How can a victim of sex harassment deal with such effects? Many people (some lawyers included) don’t think that sexual harassment is a big deal. However, most of the people who call my firm’s Orange County office disagree. They have a host of emotional and physical issues that will have a long lasting effect on their lives.

The Emotional Effects of Sexual Harassment

Victims of sexual harassment may be affected by the harassment in a number of debilitating ways.  Different people will react differently to sexual harassment.  Some common effects on victims include feelings of confusion, humiliation, embarrassment, denial, fear, shame, and numbness.  The victim may suffer from depression, sleeplessness or nightmares, decreased ability to concentrate, headaches, anxiety, traumatic stress, fatigue, stomach problems, anger, withdrawal and isolation, or problems with intimacy. Such effects may be exacerbated right before going to work and while at work.

At work, the victim may experience decreased work performance, increased absenteeism, defamation of character and reputation, and loss of recommendations as a result of the harassment.

Dealing with the Effects of Sexual Harassment

While I’m just a lawyer and no psychologist, I do know that there is no easy answer to how a victim can best cope with the stressful effects of sexual harassment.  Some victims will be hysterical, while others will go through denial and remain outwardly calm.  Some struggle with asking themselves why they have been harassed and wonder if they did something to give the harasser the wrong impression. Often this thought process leads the victim to feel shame, guilt, or embarrassment.  The victim may feel like the harassment is his or her fault, and this guilt and shame can make it even more difficult for a victim of sexual harassment to seek help or to report the harassment.

More often than not, the victim of sexual harassment will have done one or two small things that may have encouraged the harasser. This often takes place via email or text message. I’ll give you an example. One time a potential client called my office and said that she was harassed via email and text message. Her boss had in fact sent her many disgusting and sexually oriented messages. However, the victim would often respond to such messages by saying, “Lol” or “You’re gross” or “You’re a perve, lol.” She never asked the harasser to stop or ignored his messages. She always responded in a lighthearted way, despite the fact that she felt extremely uncomfortable. When she called me she was worried that such messages ruined her case. While they didn’t ruin it, they definitely don’t help.

Continue reading “Dealing with the Effects of Sexual Harassment” »

Leave a Comment

Filed under Sexual Harassment

Do California’s Court Closures Affect Employee Lawsuits?

Employment Attorney – During the last five years, California’s courts have lost 65% of their general funding. Many courts in Los Angeles, San Diego, and San Bernardino have closed. Hours have been cut, and court fees have skyrocketed. Only 1% of California’s general fund goes to it’s judicial branch (which happens to be the largest court system in the nation…btw). In Los Angeles, 67 courtrooms have been closed and 500 court jobs have been lost.

What does this mean for the average employee seeking justice? The answer is simple – it will take longer. If you are an employee and you want to sue your employer it will take much longer to get to trial.

The California Chief Justice Tani Cantil-Sakauye decried the dramatic decrease in funding for state courts. The situation is so dire that California, “normally a leader in social justice, may now be facing a civil rights crisis,” she said.

But Governor Brown has not listened. Gov. Brown’s 2013 proposed budget does not restore any of the lost funding, and the court system has had to postpone rebuilding dilapidated and unsafe courthouses. Rising fines and fees for filings threaten to make California’s court system “a user-fee institution” that particularly hurts those with lower incomes.

If you are an employee seeking an employment lawyer, should this bother you? Yes, but it should not dissuade you from seeking an attorney. You might have other options available, such as arbitration or mediation. Contact an employment lawyer as soon as possible.

1 Comment

Filed under Lawsuits & Lawyers