Month: July 2017

The workplace has evolved greatly since the 1950s. Gone are the days when it was perfectly acceptable for men to have a lunchtime martini and hire a secretary based on looks alone. While not every company has reached the era of full inclusion on all levels, many companies are taking great strides in eliminating discrimination and curbing certain rampant stereotypes. California has also played a large role in each company coming into compliance with employment regulations.

Employees throughout the state of California have rights under California law which prohibit discriminatory or harassing behavior. The California Fair Employment Practices Act was signed by the governor in 1959 and was aimed at protecting employees by prohibiting employment discrimination on the basis of race, religion, color, national origin, and ancestry. The Act has evolved over the decades to take into consideration new forms of discriminatory, but still serves the same purpose: to protect employees from discrimination and harassment in the workplace.

Workplace harassment include discrimination based on the following:

• Race and color
• National origin/ancestry
• Sex
• Marital status
• Religion
• Age
• Disability

Workplace harassment can take many forms and can be as minor as an inappropriate joke or as hostile as physical interaction.

The following include the types of verbal and physical harassment which can occur:

• Derogatory statements
• Offensive or vulgar statements
• Display of offensive artwork or other material
• Obscene jokes
• Inappropriate physical contact

The California Department of Fair Employment and Housing implements the procedures for upholding the law and prohibiting employment discrimination. An employee who has been the victim of workplace harassment based on discrimination can file a complaint with the Department. The Department will carefully review the complaint and determine whether the harassment rises to the level of unlawful behavior. If the Department determines that the complaint can move forward, the Department will serve the harasser (the Respondent) with the complaint.

The Respondent will then be required to answer the complaint, and from that point will be encouraged to negotiate a settlement. If no settlement can be reached throughout the process, the Department may take the complaint to district court.

If the Department did not accept your complaint alleging workplace harassment, you are always entitled to file a claim in court at any time. Additionally, workplace harassment which reaches the level of physical contact could also lead to criminal charges, as the California Penal Code classifies assault as a misdemeanor offense. Victims of workplace harassment therefore have several open avenues after the harassment takes place.

It is important to recognize that even small comments can rise to the level of workplace harassment and might subject the employee to civil fines and penalties under the California Fair Employment and Housing Council. It has taken decades for workplaces to become more welcoming of employees of all backgrounds, and the California Department of Fair Employment and Housing has been a major source of reform to protect employees from harassment. Victims of harassment need to always come forward with evidence of discriminatory actions by the employees or employers to ensure this type of behavior does not continue in the future.

Despite the leaps and bounds the country and the state of California have made in terms of employment harassment, it continues to occur on a daily basis, especially in the workplace. “Quid pro quo” literally translates from Latin as “something for something” and was a term to describe one transfer as contingent upon the other. The early form of quid pro quo was based in contract law, where one person would exchange something of value for something else of value. However, in recent years, the term has become associated with workplace sexual harassment.

“Quid pro quo harassment” is a defined term in the California Fair Employment & Housing Council Regulations as “explicit or implicit conditioning of a job or promotion on an applicant or employee’s submission to sexual advances or other conduct based on sex.”

This is the type of harassment that we hear about all too often in the community and actually makes employees spiteful rather than sympathetic. This is a very real form of harassment and not only belittles the employee, but also the company itself. Quid pro quo harassment is a very big issue facing employees throughout California.

Sexual harassment of any type is unlawful in California and a victim is not required to proof a sustained loss of “tangible job benefits” to establish harassment. Depending on the level of harassment and whether physical contact was involved, the employer may also face criminal charges. The California Penal Code provides that misdemeanor sexual battery charges can lead to a fine up to $3,000 and possible imprisonment in county jail of up to 6 months.

California holds employers to a higher standard than normal violators of sexual harassment, since employers should always have the best interests of their employees in mind. Employers have a high standard of care to their employees, and the perception that they are taking advantage of their position, and evidence that they used their position to coerce sexual favors, could lead to direct criminal charges.

As such, a victim of quid pro quo harassment has several options open to them: file a complaint under the California Department of Fair Employment and Housing, file a claim in civil court, or file criminal charges (depending on the type of conduct in question).  The California Department of Fair Employment and Housing offer employees with an avenue to attempt negotiation and mediation after quid pro quo harassment. However, if the Department does not believe that the harassment rose to the level of breaking the law, you may have to file a claim in court yourself.

Unfortunately, the effects of quid pro quo harassment often linger with victims. Employees may face a litany of abuse from coworkers following the quid pro quo harassment. The rumors run rampant on these types of harassment claims, putting an employee’s professional career in jeopardy. It is therefore important that victims of quid pro quo harassment come forward the first time they experience any type of abuse in the workplace. The more victims of quid pro quo harassment come forward, the more these types of harassers will be held accountable for their actions.

Perhaps one day, “quid pro quo” will return to the old Latin contractual phrase that really means a bushel of grain for one hen. However, there is still a long road to go to get to that point.

It seems like such a simple question – “what do you do if you are being sexually harassed at work?” But for so many victims throughout California, the answer is anything but simple. While sexual harassment of any nature is a horrendous crime and violation that can cause lingering emotional damage on the victim, sexual harassment in the workplace causes a different type of internal anxiety.

Sexual harassment in the workplace often comes with more baggage than an anonymous sexual harassment encounter since the workplace is seen by so many as a safe environment. You come to work every day and do your job, typically without the worry of an imminent attack. Your employer is charged by the state with a duty to keep you and all other employees safe from discrimination and safe from any inappropriate conduct.

As difficult as it might be, it is important for any victim of sexual harassment to report the incident immediately. The longer you delay in reporting this type of conduct, the higher the likelihood that it will occur again, and may occur to someone else.

If your company has not proved helpful in eliminating sexual harassment in the workplace after reporting the incident, or if you are worried about the implications of reporting the harassment to your superiors, the California Department of Fair Employment and Housing has procedures in place to assist.

First, you must fill out a “pre-complaint inquiry” within one year from the date of the harassment, which will then be reviewed by a member of the Department to determine whether the harassment has risen to the level of illegality. Once the initial inquiry is received by the Department, an investigator will be assigned to review the details of the discrimination/harassment. You will need to be prepared to discuss the facts of the incident and any documents which corroborate your complaint.

If the complaint is accepted by the Department, it will then be delivered to the person who committed the harassment or discriminatory behavior (the “respondent”). The respondent is legally required to answer your complaint.

At any time during the process, the two parties may decide to go through negotiation. If both parties cannot come to an agreement, the Department will examine the facts of the case to determine whether breach of law occurred during the harassment.  If a law was violated, then both parties are required to go to mediation.

At this point, if no resolution is in sight, you are entitled to file a lawsuit in district court. It is important to keep in mind that if the Department does not accept your complaint, you still have the option of bringing a claim in district court against the respondent. The Department will only accept complaints which violate the California Fair Employment and Housing Act, and even harassing behavior may not always rise to that level.

Victims of sexual harassment also have the opportunity to pursue criminal charges in severe situations. California prohibits sexual assault and battery, and both are misdemeanor offenses which can lead to fines and potential jail time. In the end, the victim of sexual harassment has the sole responsibility for reporting the harassment to the appropriate authorities, either state or internal employers. Without reporting, victims run the risk that the harassment will continue, or others will also be subject to the harassment.