Category Archives: Harassment

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.

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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.

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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.

 

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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.

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Harassment and the “Continuing Violation Doctrine”

Sexual harassment lawyer california

Ongoing Sexual Harassment Tolls the Statute of Limitations

To sue for sexual harassment in California, you must bring your claim to the Department of Fair Employment & Housing or get your “right to sue” letter within one year of the alleged harassment. Your lawyer will obtain this for you. But what if the harassment regularly took place over the last couple years? What if some of the sexual harassment took place over the last 10 or 15 years? Are the instances of harassment that took place over a year ago barred from being brought in court ? Will your attorney have bad news for you? The answer is “no”…well…most of the time it’s “no.”

In 2001, the Supreme Court of California ruled on the scope of the “continuing violation doctrine” in Richards v. CH2M Hill, Inc.The doctrine “allows liability for unlawful employer conduct occurring outside the statute of limitation if it is sufficiently connected to unlawful conduct within the limitations period.” To determine this connection, the Supreme Court set up a three part test: if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of permanence so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.

If this test is met, the statute of limitations begins to run either when the course of sexual harassment has ended (such as when the employer fires the harasser) or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.

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Tight Clothing & the Implications of “Leading the Boss on” in Sexual Harassment Lawsuits

Sexual Harassment Lawyer

Statistics show that most women fail to confront their bosses about sexual harassment. This is a mistake.

When a woman wears tight or provocative clothing at work, and is thereafter sexually harassed by a male manager or coworker, will that fact hurt her sex harassment case? This is an especially important question in Orange County, where California culture encourages working women to wear shirts that show a little cleavage and skirts that show off some leg.

Some men believe that when a woman wears tight clothing, revealing blouses, or a short skirts, she is seeking sexual attention. Many believe that she “asked for it” and that they should not be punished because she “led him on.”

California’s hostile work environment laws state that the harassment must be “severe” or “pervasive” and is evaluated on a “totality of the circumstances” scale. These legal constructs allows judges, juries, mediators, and arbitrators to evaluate just about anything they want in deciding whether sexual harassment has occurred.

As a result, society, judges, juries, and arbitrators, often blame the victim for encouraging the harassment. These decision makers have, on numerous occasions, decided against employees on the basis of conduct they see as encouraging the harasser such as, using sexual language & mannerisms around the person who allegedly harassed them, wearing tight & revealing clothing, failing to make complaints after harassment allegedly occurred, and initiating social contact with the harasser after the harassment has occurred.

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Employees of Franchises May Be Able To Sue The Deep Pockets

dominospizzalogoA great case came down earlier this year that I’ve been meaning to blog about. Employee rights attorneys’ like myself are hesitant to take cases against small employers. This is true even when the employer is a franchisee (e.g. your local McDonald’s). Generally, franchisor’s (e.g. McDonalds corporate) isn’t liable for franchisee’s labor practices. Attorney’s like myself fear that we might litigate a case for two years, win a trial, but be unable to recover the full judgment because the local franchise doesn’t have very much money.

A recent case changes this in certain situations.  Patterson v. Domino’s Pizza, LLC held a franchisor can be held liable for alleged sexual harassment of an employee of the franchisee by a supervisor employed by the franchisee and for related claims.

The facts of the case are fairly common. Patterson was a teenage employee of Sui Juris, a Domino’s pizza franchisee. Renee Miranda was the assistant manager of that restaurant. Patterson claimed Miranda sexually harassed and assaulted her at work.

Patterson filed an action against Miranda, Sui Juris, and the franchisor Domino’s, alleging causes of action for sexual harassment in violation of Fair Employment and Housing Act (FEHA), failure to prevent discrimination, retaliation for exercise of rights, infliction of emotional distress, assault, battery and constructive wrongful termination. She claimed Sui Juris and Domino’s were Miranda’s employers and were vicariously liable for his actions under the legal doctrine of respondeat superior.

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Sexual Harassment Series #3: Moran v. Qwest Communications

For today’s post I thought I would highlight a recent sexual harassment case: Moran v. Quest Communications. In this case the jury awarded the plaintiff, Amy Moran, $4,292,710.

Let’s outline the facts in detail. I’ve copied and pasted much of it from an online copy of the appellate decision. I want to highlight the kind of behavior that qualifies as sexual harassment. Although a new trial has been ordered on some aspects of the verdict, this case highlights what a jury can do for a sexually harassed employee.

Moran joined Qwest (which is now CenturyLink) in early 2006. She was hired in a sales position and was compensated in base salary plus commission. By mid 2006 her managing boss had been replaced by Dennis Sherwood.

Sherwood seems like a disaster of a boss. He had received sexual harassment training at previous jobs and, according to an appellate brief, “recognized such harassment as a serious issue.” In a previous job, Sherwood tried to start an intimate relationship with a subordinate employee while she was a candidate for hire and after she was hired.

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Sexual Harassment Series #2: Quid Pro Quo Harassment

Horrible Bosses Sexual Harassment - Quid Pro Quo - Employment Law HR Attorney - Jennifer Anniston

Anyone else see the movie ‘Horrible Bosses?’ In the movie Jennifer Aniston plays a sex-obsessed dentist who overtly harasses her dental assistant played by Charlie Day. Although mildly entertaining because it’s fiction, the movie highlights a sad truth – sexual harassment is alive and well in America.

In the eyes of the law there are two main forms of sexual harassment: ‘quid pro quo’ and ‘hostile work environment.’ Although the more common type is hostile work environment, the more sinister is quid pro quo. That is what this article is about.

We’ve all heard about blatant sexual harassment: “give me oral sex and I’ll give you a raise,” or “you can have the nice office if you go on a date with me,” or “you’re gonna have to try harder if you want to keep your job.” Usually the harassment comes from a male superior to a female subordinate. This nasty type of harassment even occurs in the heart of Orange County. I’ve heard stories of such blatant harassment happening in Irvine, Santa Ana, Newport Beach, and other OC cities.

Quid pro quo means “this for that.” It happens when a supervisor requests sexual favors in exchange for job benefits, such as getting a promotion, pay raise, or to simply keep the job. The essence of the quid pro quo theory of sexual harassment is that a supervisor extorts sexual favors from an employee.

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Sexual Harassment Series #1: Hostile Work Environment

Hostile Work Environment in California - Sexual HarassmentHere is the common story: John, a male supervisor, and Jane, a female employee, work closely together. They are friends, and have a fun working relationship. They regularly get chummy with each other and enjoy telling each other jokes. But one day, John asks about her sex life, or slaps her on the butt, or tells her that she has a great body. Since their relationship is good, Jane laughs it off and dismisses it.

The next day John throws another sexual comment her way, or lets his eyes drift to her breasts, or tells her that if he were single, he’d be asking her out for a drink. Again, Jane dismisses it as friendly banter.

But the next day, it continues. This time John sits on her desk and tells a sex joke or gets a little too close when nobody else is around. She smiles and is polite, but it’s starting to concern her. Worried she would ruin the relationship, Jane says nothing. After all, it’s not a big deal…. Women deal with this sort of behavior all day every day…right?

But the following week it continues, and the week after that. Before Jane even notices weeks turn into months. Eventually, she gets fed up and she tells HR. But when she sits down with HR, she has trouble articulating what John is doing. But she gets the message across and HR says they are going to deal with it. But they don’t. You see, John is a valuable asset to the company, and Jane isn’t as valuable. The company doesn’t want to lose John–he makes them a lot of money.

Then one day, John goes too far. He corners her, kisses her, or grabs her, or does something even worse. Jane rejects his advances, and the lust in his eyes turns to anger. Understandably, Jane starts avoiding John. There is an awkward rift between them. But John is her boss, and her job performance begins to suffer.

A week or two later, Jane gets a poor performance review, or she gets passed over for a promotion, or she gets demoted. Then, a month or two later, she gets fired.

This story repeats itself all across California. This is a typical “hostile work environment” sexual harassment case. Here, the harassment was bad, but it often is much worse. What can Jane to do? Should she just suck it up and find a new job? What if that was her dream job? What if she can’t find a new job? What if she needs to feed her children?

In California, sexual harassment (legally speaking) can take one of two forms: “quid-pro-quo” or “hostile work environment.” Here, I cover what a “hostile work environment” looks like and what you can do to stop it. I will cover the other type, ‘quid-pro quo,’ in a future post.

Keep reading after the jump…. Continue reading

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Facebooking About “Naked Twister” With Co-workers Is Not a Good Idea if You’re Suing for Sexual Harassment

Naked Twister, Sexual Harassment, Facebook, LawsuitTennessee is a strange place. Earlier this year a very interesting decision was handed down by a Tennessee Federal District Court, Targonksi v. City of Oak Ridge. The case is a typical sexual harassment case by a female police officer against her supervisor. The female plaintiff claimed that she was subjected to a ‘hostile work environment’ because her supervisor was allegedly “spreading sexual rumors” about her. According to Plaintiff, her supervisor told her that he thought she was “a lesbian and I wanted to be part of” an orgy the supervisor was trying to coordinate.

Plaintiff testified at her deposition, “I’m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that’s severely humiliating to me.” Plaintiff further testified that she would never “go out and talk to people about” such things, even in a joking manner.

Curiously, however, a few months after the sexual rumors were allegedly spread, she Facebooked about her desire for a female friend to join her “naked in the hot tub.” Moreover, she discussed “naked Twister” during a party at a cabin in the woods. Even more damming, she talked about female orgies involving herself, another female, and others, to be filmed by her very own husband.

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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.

 

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