Category Archives: Sex Discrimination

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

1 Comment

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

Woman Gets Fired for Having Premarital Sex – Is this Pregnancy Discrimination?

Employment Attorney – Generally, employers across California cannot fire an employee because of their sex. Nor can they fire an employee because she is pregnant. However, there are some exceptions for religions institutions. In the below CNN video, San Diego Christian College fired Terri James for having premarital sex.

Link to Terri James Pregnancy Discrimination Video

The school may argue that the lawsuit is barred because FEHA’s definition of “employer” does not include a non-profit religious corporation.  The school may also argue that James could not allege a common law wrongful termination action either in this situation, whether it is based on FEHA or the California Constitution.  If the court behaves like it did in Henry v. Red Hill Evangelical Lutheran, James may be out of luck. In that case The court held that the ministerial exception to FEHA set forth in section 12926(d) of the Government Code barred the claim and that the California Constitution did not support the lawsuit either.

4 Comments

Filed under Christian, FEHA – Fair Employment & Housing Act, Pregnancy, Sex Discrimination

Mixed-Motive Employment Discrimination

Harris v. City of Santa Monica Employment Lawyer Pregnancy DiscriminationThe California Supreme Court just came down with a big decision regarding employment discrimination. Employment lawyers across the state are describing Harris v. City of Santa Monica as a compromise between employee rights and business’ freedom to terminate employees. I find the decision fair, despite the fact that I was rooting for Ms. Harris.

Fair Employment and Housing Act – Pregnancy Discrimination

The facts of the case are relatively straight forward: a bus driver alleged that she was fired by the City of Santa Monica because of her pregnancy in violation of the FEHA. The City claimed that she was fired for poor job performance. At trial, the City argued that if the jury found a mix of discriminatory and legitimate motives in Harris’ termination, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court denied the City’s argument, and the jury awarded her $177,905 in damages and more than $400,000 in attorney fees. The Court of Appeal reversed, and the Supreme Court granted cert.

.

Supreme Court Decision – Employment Lawyers Say “Compromise”

“We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA‘s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs. Therefore, we affirm the Court of Appeal‘s judgment overturning the damages verdict in this case and remand for further proceedings in accordance with the instructions set forth below.”

As most readers can tell, the court was trying to make employers and employees happy. This decision permits employees to still bring lawsuits when the employer has a mixed motive, however limits the damages attainable.

Some plaintiff attorneys question whether the court adequately defined when discrimination becomes a “substantial factor” in workplace discipline. The high court’s opinion concluded that “mere discriminatory thoughts or stray opinions are not sufficient to establish liability” under state law. The justices refused to offer a more specific definition “given the wide range of scenarios in which mixed-motive cases might arise.”

All in all, this is just another day in the life of an employment attorney.

________________________

Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

1 Comment

Filed under Age Discrimination, Disability Discrimination, Discrimination, FEHA – Fair Employment & Housing Act, National Origin Discrimination, Pregnancy, Race Discrimination, Religious Discrimination, Sex Discrimination, Sexual Orientation Discrimination

Pregnancy Series #4 – Pregnancy Disability Leave in California – 10 Things You Should Know

Pregnancy Disability Leave, PDL, FMLA, CFRA, reasonable accomodationIn a previous post we covered what you need to know about maternity leave. But that is only useful if you have a typical pregnancy. What if it’s a hard pregnancy, and you need more than the usual amount of maternity leave? You are probably wondering:

  • What if I get put on bed rest and can’t work?
  • What if my labor is horrible and I need more than 12 weeks to recover?
  • How much disability leave can I take?
  • Can my boss refuse to let me take disability leave beyond my maternity leave?
  • Do I have the right to return to the same position afterwards? Same pay?
  • What else do I need to know?

Click through for ten critical pieces of information that you need to know about pregnancy disability leave….  Continue reading

Leave a Comment

Filed under CFRA - California Family Rights Act, Disabling Injury and Illness, Discrimination, Family & Medical Leave, FEHA – Fair Employment & Housing Act, FMLA - Family & Medical Leave Act, Maternity Leave, Pregnancy, Pregnancy Disability Leave, Sex Discrimination

Breastfeeding in the Workplace Example – American University Professor Adrienne Pine

I’ve already written an entire post on California’s laws on breastfeeding in the workplace. But I just came across this CNN article and had to share it. Although the incident did not take place in Orange County, or even California for that matter, it is still worth a read.

Adrienne Pine, an American University professor in Washington D.C., noticed that her infant child was running a fever. It was Ms. Pine’s first day teaching for the semester. So she didn’t want to miss class. But, as many working mom’s know, couldn’t drop her child off at daycare because of the fever. Daycare generally refuses sick babies because of the potential of spreading the disease (if one exists).

So, what is a working woman to do? She brought her baby to class. But the baby got fussy and hungry and you can guess what happened next:

after her daughter started fussing, the professor began nursing — in front of 40 students — to get her to stop.

A firestorm erupted afterwards. Students complained on Twitter and Ms. Pine was suddenly thrust into a national debate. Should women be allowed to breastfeed at work? Should they be afforded a private place to use a breast pump? Should employers provide emergency daycare? These are all very important questions for working women across America.

________________________

Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.

Leave a Comment

Filed under Discrimination, Family & Medical Leave, FMLA - Family & Medical Leave Act, Maternity Leave, Pregnancy, Privacy at Work Rights, Sex Discrimination

Pregnancy Series #3 – Maternity Leave – What You Should Know About California Law

Maternity Leave, California, FMLA, CFRAIf you just found out that you are pregnant let me be the first person in the Internet world to say, “Congrats!” There is nothing more exciting that expecting a child. I know this from experience. My wife and I just had our first daughter and I want to jump for joy. I couldn’t be happier.

But if you’re a working woman this might be daunting. What does your pregnancy mean for your job? It obviously means you must take time off for doctor visits, pregnancy classes, labor, and recovery. But how much time can you take off? What protections does California law afford?

Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) are the laws at issue. The FMLA, in combination with the CFRA, provides California working mothers with the best maternity leave rights in the nation.

Read more after the jump…. Continue reading

4 Comments

Filed under CFRA - California Family Rights Act, Employee Benefits, Family & Medical Leave, FMLA - Family & Medical Leave Act, Health Benefits, Health Care, Leaving a Job, Maternity Leave, Pregnancy, Sex Discrimination

Pregnancy Series #2: Pregnancy Discrimination Is Not OK – What You Should Know

pregnancy discrimination at work in CaliforniaThis article is for pregnant working women and new moms in California.

I understand that work is important. If you don’t make money, you can’t buy diapers, formula, or clothing for your children. Your boss knows that the paycheck is very important to you, and sometimes he takes advantage of this by forcing you to work extra hours, or making you perform dangerous jobs that are hazardous to your health. He knows you need the money so you probably won’t complain.

Some bosses are even worse.  They simply fire pregnant women because they don’t want to deal with the hassle of filling your position while you are on leave. Nor do they want to continue paying your health insurance. They usually claim “poor performance,” “absenteeism,” or some other excuse as the reason for the firing.

Other bosses know the law and permit their employees to take leave. But demand that the employee be back in only a few weeks, or when the employee returns, the employer has drastically reduced their responsibility and cut their pay.

Is any of this behavior legal in California? No, it’s not. To find out more continue reading below.

Continue reading

2 Comments

Filed under Discharge & Layoffs, Family & Medical Leave, FEHA – Fair Employment & Housing Act, FMLA - Family & Medical Leave Act, Pregnancy, Retaliation, Sex Discrimination

Pregnancy Series #1: California is Friendly to Moms Breastfeeding in the Workplace

workplace breastfeeding, breast pumping at work, room for breastfeedingMy wife is 5 days overdue with our first child. Once the baby is out my wife wants to breastfeed our daughter. Although my wife no longer works, I couldn’t help but wonder, what are a new mom’s rights in the workplace? Can you breastfeed on the job? What if your boss doesn’t let you? Can you use a breast pump at work? Does your boss have to provide you with a private room, or do you have to do it in a bathroom stall?

In 1998, California’s legislature resolved to improve the life of Mom’s in the workplace. It passed a series of statutes, including California Labor Code § 1030-1033. The most important is § 1030:

Every employer…shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee…shall be unpaid.

Continue reading

1 Comment

Filed under Discrimination, Family & Medical Leave, FMLA - Family & Medical Leave Act, Pregnancy, Rest Breaks, Sex Discrimination, Wages and Hours

Update: Relationships in the Workplace – Dunder Mifflin Style

I know about a hundred people who have had relationships within their workplace.  I’m sure you know a hundred more.  Well, The Office had an entire episode about interoffice relationships.  Joshua Drexler at the ‘That’s what she said’ blog (one of my favorites) has a great post on the subject.

http://www.hulu.com/embed/C-GhMCa18lkKKGDGk49n4w

Update:

After posting the above link I found another one worth mentioning.  Apparently, the Vault does an annual ‘office romance’ survey.   Employers and employees in will find this interesting.  A few of the highlights are:

  • 41% of employees in the general population claim to have never participated in an office romance.
  • 40% of employees report “avoiding or curtailing a potential romance that they would have otherwise pursued specifically to avoid an office romance.”
  • Among those who have engaged in an office romance, 26% have dated a subordinate, and 18% have dated their boss.

These percentages were worse than I expected, but not surprising.  You may find it humorous to note that lawyers are particularly bad when it comes to romance in the office.  As opposed to 41% in the general population, 36% of lawyers have “never participated in an office romance.”  I bet that number changes when you look specifically at labor and employment attorneys.  They would know better.  But that’s just my hunch.

 

Leave a Comment

Filed under Freedom in the Workplace, Harassment, Relationships, Sex Discrimination, Sexual Harassment

An Employee Who Used Her Company Computer to Email Her Attorney About Suing Her Company Loses Big Time

On January 13, 2011, the California Supreme Court decided Holmes v. Petrovich Development Co.  In the case, plaintiff Gina Holmes sued her former employer for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress. However, before ever initiating suit, she used her company-provided computer to send emails to her attorney regarding possible legal action against that very same company employing her.

Continue reading

Leave a Comment

Filed under Company Property, Family & Medical Leave, FMLA - Family & Medical Leave Act, Human Resources, Privacy at Work Rights, Sex Discrimination