#MeToo is for You, Too: Part 2

Employee Discrimination, Harassment , , , , ,

The #MeToo movement is working towards eliminating harassment or assault from daily concerns. While many companies are striving towards more transparent workplaces, some still struggle to provide harassment or assault protection resources for their employees and colleagues. Changes being made within the workplace to end harassment reach much farther than sexual harassment; because of the #MeToo movement, systems are evolving to protect against many forms of harassment.

It is unlawful employment practice in California for an employee to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Government Code 12940(k).) You have the right to take action to ensure your workplace meets the standards of the U.S. Government in protecting you and other employees.

The hardest part about moving forward is finding the next steps to take. Here are three next steps if you are concerned about a situation in your workplace.

  1. Contact an attorney.

It is important to contact an attorney before moving forward. Attorneys are up to date on local, state, and federal laws that will apply to your specific case. Your attorney will work with you on every step along the way and will provide key instruction to ensure your success in communication and steps forward.

  1. File a Claim.

Provide as many details and examples of the incident(s) to your attorney. All details will be helpful in compiling a full report and providing examples of all work place policy discrepancies to win your case. Your attorney will use this information to write a claim showing fault and intent for action.

  1. Fight for Your Rights.

Once your claim has been sent and received, the next steps can be variable. Whether the threat of a claim is enough to solve your problem, or you must file a lawsuit, you have begun your journey towards fighting for your right to be supported and protected against harassment.

Harassment in the workplace can be a difficult subject to approach, especially if there are no support systems in place to protect you and your job. Luckily, there are many resources for you to utilize and a lot of support backing the end of harassment today.

If you have any questions regarding harassment, protective systems provided by your employers, or specific cases, we are happy to answer your questions or set up an appointment with you today. Visit www.bakerlawllp.com for more information.

#MeToo Is For You, Too

Employee Discrimination, Harassment , , , ,

If you’ve had access to a smartphone, computer, television, or even a newspaper in the last year, it is no surprise to you that harassment is prevalent in the news and not to be taken lightly. The #MeToo movement has surfaced unfortunate truths of what can take place in public areas, at home, or even at work. People are standing up for themselves and all industries should be working towards creating a safe space that holds people accountable and protects employees.

 

Movements like this are eye-opening for employers and employees. It begs the question, what constitutes harassment and what are our rights?

 

Luckily, there are measures you can take to protect yourself. To begin, we will start by defining harassment.

 

According to Roby v. McKesson Corp (2009), harassment “refers to bias that is expressed or communicated through interpersonal relations in the workplace.”

 

There are multiple types of harassment in the business world, but some of the most common are sexual, racial, and gender. So how do you keep this from happening to you?

 

Here are five simple questions you can ask and steps you can take to protect yourself from harassment within your work environment.

 

  1. What is the written policy regarding harassment?

Ask your employer if there is a written harassment policy. If so, familiarize yourself with the policy and related resources. If not, work with human resources or your superior to request the creation of a written policy. Allowing full transparency of the policy will allow all employees, including yourself, to feel comfortable with knowing what you are protected from and what is considered inappropriate behavior that should be brought to light.

 

  1. Is the complaint process clear and comfortable?

Understand the steps needed to file a harassment complaint. Speak with your employer to determine the best point of contact and to identify an option who is not your direct superior. It is important for you to know you can speak with a member of the company who is not your direct supervisor. Filing a complaint is stressful and the additional stress of approaching a superior can be enough to deter you from speaking up, causing further problems.

 

  1. Is there a thorough, fair, and timely investigation process?

If there are no systems to protect you in the workplace, you may not be taken seriously or cared for. Speak with your employer or superior to determine set protocols. If there are none, contact human resources to request the outline of an investigation process in writing.

 

  1. Will you have confidentiality and protection if you speak up?

No matter the situation, this is a sensitive subject for all parties involved. Confidentiality is key to providing the support necessary for you and allows you to feel comfortable and safe through the process. It could also protect you from opinions and criticism that may result in increased harassment by co-workers. You have a right to feel safe from judgement or further harassment through the reporting and correction process.

 

  1. Will your company/employer follow through with action?

The most important step is to confirm the processes are in place that leave you confident your company or employer will take every incident seriously and will take the necessary steps to protect you. If you are ever in an incident of harassment, your company should assure you of their value of you as an employee and person and demonstrate the necessary steps to insure your safety and protection.

 

The #MeToo movement has inspired change and a voice for this ongoing problem within the workplace. You, too, can step up to prevent harassment in the workplace. Follow these five steps, ask the right questions, and work with your company or employer to perfect your prevention plan.

 

If you are concerned about the resources offered by your company to protect you from workplace harassment or if you have experienced harassment and need additional support outside your company, reach out to us today.

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Pregnant Mothers May be Entitled to More Than 19 Weeks Leave

Employee Discrimination, Wrongful Termination , , , , , ,

Pregnancy DiscriminationAn Overview of Pregnancy Leave Law:

Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA) allow women to take disability leave while pregnant and after delivery. However, even with the above-mentioned leave afforded by both acts, some women experience complications or unique situations that keep them from returning to work before the statutorily imposed time frames.

According to the California Court of Appeals, some women may now be entitled to even more pregnancy leave.

Sanchez v. Swissport

In the case of Sanchez v. Swissport, Inc., Cal. Ct. App. Feb. 21, 2013 an employee, Ms. Sanchez, was diagnosed with a high-risk pregnancy that required extended bedrest. She applied for and pregnancy leave and was granted 19 weeks of leave from her employer as required by PDLL. However, Ms. Sanchez was still unable to return to work after the leave period expired and still had 3 months to go before she could return to work. As a result, her employer terminated her position. Ms. Sanchez then filed a lawsuit based on gender discrimination, citing the employer’s failure to engage in the interactive process to determine whether she could be provided with reasonable accommodations.

Her employer argued that it was not required to provide Ms. Sanchez with additional leave because she had exhausted all leave that was required by PDLL and CFRA. However, the trial court disagreed. The employer appealed and the California Court of Appeals upheld the decision that the employer was wrong.

The Role of FEHA and CFRA

The Court ruled that simply providing 4 months of leave under PDLL does not entitle the employer to avoid the separate requirements of the Fair Employment and Housing Act (FEHA), in which an employer must provide reasonable accommodations to employees with disabilities. Ms. Sanchez argued that she would have been able to return to work shortly after delivery and that it would not have been an undue hardship on her employer. The court agreed that this in theory could have been a reasonable accommodation.

Although the court did not address the issue of CFRA, it is worth mentioning that after giving birth an employee is entitled to up to 12 weeks of leave under the CFRA in order to care for a new child.

If your employer or former employer has taken action against you or terminated you after taking pregnancy disability leave, you may be entitled to a lawsuit to recover your wages and other damages. To learn more contact the experienced California Employment Law attorneys of Baker Law Group, LLP.  Schedule a free consultation by calling (858) 452-0093 today.

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Ninth Circuit Says No Cause Termination Can Be Wrongful Termination

Wrongful Termination , , ,

The Ninth Circuit recently released an opinion that upholds the burden of proof that an employer must claim in retaliatory discharge lawsuits. In Westendorf v. West Coast Contractors (9th Cir. 2013) an employee alleged that her male employee and supervisor made sexist remarks towards her. The remarks allegedly included suggestions that the employee wear a French maid’s uniform; and also involved obscene comments about tampons, women’s breasts and orgasms.

The employee made a formal complaint to her company’s president. The president allegedly reprimanded the supervisor but apparently did not seem to take the allegations seriously. The employee then alleged that the supervisor began making strange demands of her and harshly criticizing her for not following them. She complained a second time to the company president, who she says exclaimed that he was tired of listening to her and thought it was ”would be best if she got her personal items and left.” At which point she was escorted off the building. The company president alleges she had quit, but the employee maintained that she was wrongfully discharged for reporting sexual harassment.

Unfair Retaliation

The employee sued the company alleging it had created a hostile work environment and that it retaliated against her for speaking out about it. The district court dismissed the employee’s case on the grounds that she had been unable to prove either claim in the complaint. However, on appeal the Ninth Circuit found that the retaliation claim should not have been dismissed.

The Ninth Circuit held that because the company failed to provide any explanation for the alleged firing except that the employee quit, it could not get the case dismissed. The court highlighted that even if the company defended itself by saying that they fired the employee because of the employee’s failure to follow the strange directions that her supervisor gave her, that the reasoning would be pretextual because the employee had no record of insubordination before she complained about the harassment.

An Important Precedent

This case sets helpful precedent for employees in discrimination and harassment retaliation cases because it shows that when an employer fails to provide a reason for a termination or provides a frivolous reason, the employer cannot get the case dismissed early.

Wrongful termination because of sexual harassment and discrimination is illegal. To learn more about how to exercise your legal rights, contact the experienced California Employment Law Attorneys of Baker Law Group, LLP. Call (858) 452-0093 to schedule your free consultation.