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How to Fight Age Discrimination in the Workplace

Written by John Winer

May 03, 2021

While ageism is nothing new, the widening wealth gap and current economic frustrations have put a spotlight on age discrimination in the workplace. According to the Bureau of Labor Statistics, the employment of workers aged 65 or older has grown by 117% in a span of 20 years, while employment of individuals 75 years or older has also increased by the same percentage. With the increase of older employees in the workforce, age discrimination in the workplace will become a greater issue, and strategic planning will be necessary in order to avoid age-related issues. Last month, a bipartisan group of senators reintroduced a measure aimed at making it easier for older Americans to bring work-related age discrimination cases against their employers.

The Protecting Older Workers Against Discrimination Act, sponsored by a group of senators, would amend the Age Discrimination in Employment Act (ADEA) to restore plaintiffs’ burden of proof to where it had been before a 2009 Supreme Court case ruling in Gross v. FBL Financial Services, which weakened the ADEA by imposing a significantly higher burden of proof on workers alleging age discrimination than is required of workers alleging other forms of workplace discrimination. As a result, workers that allege age discrimination must meet an undue legal burden not faced by workers alleging discrimination based on race, sex, national origin, or religion. Sen. Bob Casey (D-PA), one of the act’s sponsors claimed, “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen anti-discrimination protections that are being eroded.”

The Age Discrimination in Employment Act offers protection for certain employees and applicants aged over 40 from all forms of discrimination in the hiring, promotion, discharge, and workers’ compensation. The act also prohibits the use of age preference in the hiring process. It prohibits denying benefits to older employees. According to the act, it’s illegal for an employer to decide to hire or fire an employee based on age. They also can’t base pay on their age and have a policy that negatively affects employees because of their age.

Employees in all industries can experience age discrimination, however, AARP has highlighted the ones where it is the most rampant:

● Business and finance

● Technology

● Marketing and advertising

● Hospitality

● Retail

● Healthcare

● Energy

Some steps the AARP recommends taking to fight age discrimination in the workplace include:

Talk with a supervisor: sometimes the issues can be addressed in an informal conversation.

Keep a log: document comments and actions that you believe were driven by discrimination and keep any records, such as emails.

Lodge a complaint with the company: if conversations with managers don’t achieve anything, go through the organization’s formal complaint process. Make sure to write down your concerns and observations.

Submit an inquiry to the EEOC: formal complaints are investigated either by the EEOC or by state and local fair employment practice agencies. States that have their own investigators and work-sharing agreements will share the information with the EEOC.

Contact an attorney: if you believe you are a victim of any form of age discrimination, contacting an experienced employment law attorney is important to help protect your employee rights.

All workers of employers who employ five or more people are entitled to protection under California employment discrimination law. Because age discrimination cases are tough cases, having the right legal counsel and representation of an experienced employment discrimination lawyer is key to pursuing justice. Since the onset of the Great Recession, age discrimination cases filed at the Equal Employment Opportunity Commission have held steady at a level that is 50% higher than historic levels.

Employers take significant legal precautions to avoid potential discrimination claims during promotion considerations, annual reviews, layoff periods, and firings to ensure that age is not the obvious motivating factor in the case. That is why we represent clients in any industry in the state, and we work tirelessly to develop a case capable of victory. We also represent contractors, union members, and employees of nonprofit organizations under any circumstances. Our attorneys will be prepared to help you recover damages and guide you in the repair of your career.

Gender discrimination and harassment plagues U.S. temporary work programs

Written by John Winer

April 26, 2021

Each year, thousands of women are recruited to work in the United States on temporary work visas. The Department of Labor explains that foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. Although it allows them to work towards pursuing a better life, it comes at a cost. Women’s stories describe how gender bias and discrimination deeply plague the temporary labor migration programs, which facilitate women’s exclusion from equal employment opportunities and foster gender-based discrimination in the workplace. A recently filed lawsuit by a group of migrant workers is highlighting the issues they are encountering in the temporary work programs.

Reuters reported that a group of Mexican women migrants filed a complaint, accusing the U.S. government of violating a trade agreement by failing to enforce gender discrimination laws in temporary labor programs. The complaint accuses the U.S. of violating the United States–Mexico–Canada Agreement (USMCA) by failing to enforce sex-based discrimination laws in its H-2 visa programs for temporary seasonal workers. In the lawsuit, the women said they were denied access to visas that would give them better-paying jobs and that they were exposed to gender-based violence. The executive director of the Center for Migrant Rights claimed this was the first such complaint filed under the USMCA, which went into effect in July 2020. The USMCA included a new article in its new version that forces officials to act against discrimination and supports the objective of promoting equality for women in the workplace, among other points against labor inequality. It will now be up to Mexico’s Labor Ministry to consider whether to investigate the women’s complaint and take it to the U.S. government.

The Global Alliance Against Traffic in Women reports that women migrant workers experience a continuum of gender-based violence and harassment, ranging from insults to severe physical abuse, sexual assault, psychological abuse, bullying, and intimidation. And those who choose to stand up to their abusers often face retaliation and harassment. Women have described how employers and their recruiter agents frequently shut women out of equal employment opportunities or track them into jobs with less pay and fewer rights and benefits. In their worksites, they recount exploitation and abuse, ranging from wage theft to sexual harassment to human trafficking.

The Center for Migrant Rights has provided legal representation to workers from Mexico recruited for jobs in the U.S. through diverse visa programs for more than a decade and have worked with those that have been discriminated against and harassed. In 2014, the organization launched a platform for migrant workers to safely share their experiences with specific employers and recruiters and access know-your-rights information for the most common temporary labor programs. Many women have reached out about the discrimination they have encountered at all stages of the temporary labor migration programs, vocalizing the unique needs and challenges women face when seeking access to the programs.

Persistent gender bias, lack of government oversight over recruitment, and the failure of the United States to enforce anti-discrimination, harassment, and other labor and employment laws have all contributed to the gender discrimination and sexual harassment women in temporary work programs endure. Ending the abuse of women migrant workers will require consistent monitoring and meaningful enforcement.

One way the Center for Migrant Rights recommends addressing the issue is by having Congress mandate that the Department of State, Department of Labor, Department of Homeland Security, and the Equal Employment Opportunity Commission create an integrated response to the issue of migrant worker abuse. They should monitor the practices of employers and recruiters to guard against discrimination, sexual harassment, and sexual assault in the workplace, as well as ensure that women are provided adequate protection and are granted access to social and other support services to facilitate reporting gender-based violence and other trauma.

Can Employers Require Employees to Get Vaccinated Before Returning to the Workplace?

By John Winer

“Have you been vaccinated for Covid-19?” It’s a question employer may be tempted to ask as employees begin to return to the workplace.  But is it necessary for a safe work environment or a violation of workers’ medical privacy?

It’s an issue that raises legal and ethical questions as business owners and employers prepare safe “return to work” plans.  So, can an employer require an employee to get a vaccine before they’re allowed to return to the workplace?

The Equal Employment Opportunity Commission (EEOC) is offering guidance.  It says employers can legally require employees to be vaccinated with two primary areas of exception.

The first exception involves disability considerations.  Perhaps an employee has allergies involving the vaccine ingredients.   Maybe an employee is pregnant or nursing and their doctor has discouraged them from being vaccinated.  The EEOC guidance points to the ADA qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  This means the employer “must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).

In other words, an employer can determine that an unvaccinated employee can expose others to the virus at the worksite.  Employers are obligated to try to accommodate the employee, but if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace.

The next exemption is for religious considerations.  Once again, the EEOC reminds employers of their obligation for reasonable accommodations.   If no accommodation that reduces the risk of harm to others is possible, the employer is legally allowed to exclude the unvaccinated worker from the workplace.

But, even with this guidance, the EEOC points out that excluding a worker from the workplace doesn’t trigger automatic termination of that employee.   Those cases need to be evaluated to see if other rights apply under the EEO laws or other federal, state, and local laws.

As for asking the question, “Have you been vaccinated?”:  Does that question violate the medical privacy rights of an employee?  The answer, according to the EEOC, is no.   The agency says not only can employers ask, but they can also require proof of vaccination.   What the guidance warns against, however, is that employers must be careful with their questions in situations where vaccines are voluntary and not required for the job.   Questioning an employee about why they opted not to be vaccinated could venture into medical information that is protected by the ADA.

Communication with workers is key.  Let them know the strategy and expectations for keeping the workplace safe.  And remember that vaccination policies can change in the future.  As everything that has evolved in the past thirteen months of this pandemic—non-mandatory vaccination policies can become mandatory if warranted and the reverse may become a possibility sometimes too.

There’s a balance between protecting workplace safety and workers’ medical privacy.  Careful policies and communication along with safety protocols will help bring an end to the pandemic.  With the noted exceptions and restrictions, employers can ask about vaccination status and require vaccines as a condition of employment.

 

 

How the Aftermath of Proposition 22 Impacts Consumers

Written by John Winer

For many years, companies and legislators have debated whether gig economy workers like those who work for Uber, Lyft, Instacart, Postmates, and DoorDash should be entitled to benefits such as minimum wage and unemployment insurance. In November 2020, gig economy companies celebrated a major victory after California voted to pass a controversial ballot measure to exempt them from having to classify their gig workers as employees rather than as independent contractors. According to a CNN report, Proposition 22 was the most expensive ballot measure in California’s history, with Uber and Lyft along with a few other gig economy companies spending more than $205 million to pass the measure on the ballot, but the newly passed proposition has been met with some challenges since its enactment.

Ballotpedia reported that Prop. 22 passed with around 58% of the vote with the help of the Protect App-Based Drivers and Services coalition, known as the Yes on 22 campaign, which worked to support its passage and raise over $200 million for the campaign. According to a Sacramento Bee report, under Prop. 22, drivers for gig economy companies only qualify for 120% of the minimum wage during the time they are picking up and driving a passenger in their car, plus 30 cents a mile. The companies are not required to contribute to Social Security, Medicare, or unemployment insurance, and few drivers qualify for other healthcare options. Contractors are typically ineligible for state unemployment insurance because they are self-employed, and they are the sole contributors to their retirement accounts. Independent contractors will find that liability insurance premiums are generally higher than the collective rates that employers will secure for their workers and it may be required by certain employers.

Earlier this year, Prop. 22 was met with its first legal challenge after a small group of app-based drivers and two major labor unions, The Service Employees International Union (SEIU) and the California Labor Federation, filed a lawsuit in the Supreme Court to overturn the ballot measure. According to a report by the Los Angeles Times, the suit claimed the measure was unconstitutional because it limited the power of the state’s legislature from creating and enforcing a workers’ compensation system for gig workers. One of the plaintiffs in the lawsuit claimed that the independent contractor status left drivers like him with “no savings, sick days, health insurance or unemployment during a pandemic.” After a brief review, the California Supreme Court declined to hear the case brought on by the drivers and unions, claiming the case could be filed in a lower court. Following the rejection, the plaintiffs alleged that they were still planning to continue pushing forward with their legal challenge against Prop. 22.

Not only did gig economy workers feel the negative effect of Prop. 22, but customers did as well. According to MarketWatch, soon after the measure was passed, some gig economy companies claimed they were planning to raise rates for customers. Uber called on increases on every ride and delivery a “California Driver Benefits Fee,” which the ride-sharing company said would vary depending on the costs of operating in different markets. DoorDash also said it was exploring slight increases in service fees. Gig Workers Rising, a worker’s rights group called the increase “a corporate bait and switch,” saying in a statement, “Uber and other app corporations said time and again during their Prop. 22 campaign that if the measure failed to go through, riders could expect higher rates. Now that Prop. 22 has passed, Uber is announcing that riders will have to shoulder increased costs after all.”

While Uber may have won their legal battle in the United States, it did not face the same outcome overseas. In February, a court in the United Kingdom ruled that gig companies must treat their workers as employees, forcing Uber to classify around 70,000 drivers as workers and give them some benefits, per a report by The Verge. Although drivers will still not be considered full-time employees, they would be able to accrue vacation time and receive a minimum wage while driving fares, as well as have the option of enrolling in a pension plan. It’s only been four months since the measure was passed and it has already been met with some challenges. It’s clear that gig economy workers need the same benefits that are provided to traditional workers, such as minimum wage, overtime pay, workers’ compensation, unemployment, and state disability insurance. As the pandemic forced many to seek jobs in the gig economy, it also exposed just how vital basic protections are for gig economy workers.

A Disturbing Rise in Discrimination and Harassment in the Asian American Community

By John Winer

March 10, 2021

A series of violent attacks against Asian Americans has surged in the United States following the COVID-19 pandemic, sparking fear and outrage around the world, with civil rights groups and advocates demanding action. In 2020, a hate-incident-reporting website received thousands of self-reports of discrimination and harassment nationwide, from verbal harassment to physical assault. CNN reports that despite being the fastest-growing racial and ethnic group in the country, the racism, discrimination, and harassment that is experienced by the Asian American community is often overlooked.

The increasing harassment and violence targeting Asian Americans have been described as a silent symptom of the coronavirus pandemic. Between March 19 and December 31, 2020, Stop AAPI Hate, a center that tracks and responds to incidents of hate, violence, harassment, and discrimination against Asian Americans in the U.S., received 2,808 reported incidents of racism and discrimination targeting Asian Americans across the U.S. Of those reports, 1,226 incidents took place in California alone, with most of them occurring in the Bay Area. Types of discrimination include verbal harassment, physical assault, and denial of access to services and public spaces. An October 2020 Pew study found unfavorable views of China had reached highs across the world, including in the United States. A United Nations report associated the rise in negative views against Asian Americans to former President Donald Trump’s use of racist language to describe the pandemic’s origins in China.

A recent ABC News report revealed that in the last few months, there have been nearly two dozen violent and unprovoked attacks against Asian Americans in the Bay Area, leaving communities on edge. The majority of incidents in the Bay Area took place in San Francisco, with the second and third most incidents occurring in San Jose and Oakland. The series of high-profile incidents captured on video helped bring awareness to the hateful attacks on Asian Americans. Police in Oakland recently announced that they had arrested a suspect in connection with a brutal attack of a 91-year-old man in Chinatown that was caught on camera. Other incidents include a Thai man who was attacked and killed in San Francisco, a Vietnamese woman who was assaulted and robbed of $1,000 in San Jose, and an 84-year-old man who died following an attack in San Francisco’s Anza Vista neighborhood. It’s unclear whether the crimes were racially motivated, but advocates are calling for more to be done to address violence against Asian Americans.

But the Bay Area is not the only place that has seen a rise in violence. The L.A. Times reported that hate crimes against Asian Americans and other members of the Asian and Pacific Islander communities rose sharply in Los Angeles in 2020, causing concern among police and local advocacy organizations. Data also revealed that the increase in anti-Asian hate crime was the highest in New York City, which is the largest city with a high Asian population, where police recently investigated a record 28 incidents involving Asian American victims.

Many in the spotlight are using their platform to bring attention to the racism and xenophobic violence against Asian Americans during the current pandemic, including N.B.A. star Jeremey Lin, who is Taiwanese-American. CBS San Francisco recently spoke to Lin on the recent attacks on Asian Americans, where he opened up about his own experiences with racism on the court. In a Facebook post, he focuses on the recent attacks on Asian Americans and describes a time where he was called “coronavirus” during a game. In his post, Lin wrote, “Being a 9-year NBA veteran doesn’t protect me from being called ‘coronavirus’ on the court. We are tired of being told that we don’t experience racism, we are tired of being told to keep our heads down and not make trouble. I want better for my elders who worked so hard and sacrificed so much to make a life for themselves here.” The New York Times reported that an N.B.A. G league spokesman had confirmed that an investigation had been opened following the reports.

In response to the alarming escalation in violence resulting from the COVID-19 pandemic, CBS News reports that communities in Los Angeles and Orange County are coming together to bring awareness. Dozens have signed up to volunteer to help feed and provide protective equipment for the elderly in Orange County’s Asian community. Several Los Angeles City Council members introduced two motions in an attempt to address the rise in hate crimes and harassment against the Asian American and Pacific Islander community. One motion calls for L.A.P.D. to report on data of the increased crimes against Asian Americans and the department’s response to the trend, while the second motion directs the chief legislative analyst to report on recommendations to strengthen the city’s oversight, mitigation, and response to street harassment. It also requests the Los Angeles County Metropolitan Authority to report on past and upcoming efforts to curtail harassment on public transportation.

Last month, President Joe Biden acknowledged and condemned discriminatory attitudes and hate crimes toward people of Asian descent. He also signed an executive action directing federal agencies to combat xenophobia against the Asian American Pacific Islander community. The executive action was welcomed as an “important first step” by civil rights advocacy groups that had voiced concerns over former President Donald Trump’s rhetoric about the virus and its impact on the AAPI community. Other groups emphasized that more information was needed at the federal level to examine the pandemic’s effects. “It is not enough to simply condemn racism, xenophobia, and violence. We must call attention to these injustices and protect one another during these times.”

WB&S Files Sexual Abuse Lawsuit Against Napa State Mental Hospital

Napa Valley Register profiled our client, who recently filed a lawsuit against the state for allegations of sexual abuse and forced sterilization when he was a child at the Napa State mental hospital more than half a century ago.

Read the Napa Valley Register article here: LINK

 

 

 

 

 

 

 

 

 

 

Former San Francisco Medical Center Employees File Racial Discrimination Lawsuit

Written by John Winer

February 09, 2021

Our firm recently filed a racial discrimination lawsuit on behalf of two former employees of a San Francisco medical center, who allege they were subjected to harassment and discrimination due to their race and color and were retaliated against when they spoke up about the abuse. A 2020 report indicated that active racism permeates many American workplaces and that in the last three years alone, Black employees had experienced an increased amount of racial discrimination and harassment.

According to the U.S. Equal Employment Opportunity Commission, racial discrimination involves treating someone unfavorably because they are of a certain race or because of personal characteristics associated with their race. Although Title VII of the Civil Rights Act of 1964 sought to reduce racial inequality by eliminating discrimination and harassment in the workplace, it, unfortunately, continues to exist.

“While progress has been made with tackling racial discrimination in recent times, it is clear that it still lives on in the workplace.” said founding and managing partner John Winer. “It’s important for employers to create a space where people feel safe to come forward and report unwanted abuse and harassment without the fear of being retaliated or fired.”

Our clients, two Black women, were former employees of St. Mary’s Medical Center in San Francisco, working as communications operators. They were part of the telecommunications department, which ran 24 hours and seven days a week, and where there were predominantly Black operators who had been employed with the company for decades and who had significant skill, knowledge, and experience in the field. Despite their commitment and experience, they were repeatedly treated less favorably than the non-Black operators with regard to requests for leave, scheduling, job responsibilities, and other terms and conditions of employment.

While they were employed, the plaintiffs were unlawfully discriminated against because of their race and color and were subjected to mandatory overtime shifts, denying their requests for leave, changing their schedules without their consent, and were denied overtime pay, meal periods, and rest breaks that were afforded to other similarly situated non-Black employees. The lawsuit also contends that the medical center failed to provide a workplace free of discrimination, harassment, and retaliation and that they failed to promptly investigate the discrimination and harassment. After the women protested against the unlawful discrimination and harassment to supervisors, managing agents, and directors, they retaliated against them, subjecting them to more mandatory overtime shifts, denying their requests for leave, changing their schedules without their consent, removing their work and personal items, and denied them terms and conditions of employment that were afforded to other similarly situated employees. As a result, the corporation intentionally permitted working conditions to exist that were so intolerable that the plaintiffs had no other choice but to resign.

Workplace harassment and discrimination can have a tremendous negative impact on an employee not only at their workplace, but also in other aspects of their life such as their health, relationships, career, and overall well-being. Research by the NeuroLeadership Institute (NLI) found that when employees feel safe discussing racism openly, the conversations are likely to have a more lasting and sustainable impact, which can lead to a more proactive workplace. Our firm strongly believes in the fundamental principle that all employees have a legal and ethical right to a work environment free from unlawful harassment, offensive and insulting behavior, and discriminatory treatment. If you believe that you have been the victim of discrimination or harassment in your workplace, it’s important to contact an employment law expert who can help manage your case.

Former healthcare employees file workplace sexual harassment lawsuit

By John Winer

February 1, 2021

Workplace sexual harassment is an event that can occur slowly over time or in an instant and can take many different forms. It can come from a supervisor, a colleague, or a customer, and ranges from unwanted touching, inappropriate comments or jokes, or the promise of a promotion in return for sexual favors. There are no parameters for how sexual harassment “must” occur to give an employee grounds to file a complaint. Our firm recently filed a lawsuit on behalf of two former employees against their former employers and supervisor, alleging they were subjected to physical and sexual harassment, and faced retaliation in response to their complaints.

“This supervisor exploited his authority by making unwanted comments and sexual advances towards his subordinates,” said founding and managing partner John Winer. “Stepping up to file a sexual harassment complaint takes a lot of courage, and these employers chose to ignore the supervisor’s ongoing misconduct. Employers have the right to protect their employees and take appropriate steps to prevent and correct unlawful harassment that occurs in the workplace in order to create a safe work environment.”

In March 2016, our client began working as a janitor at a skilled nursing and rehabilitation center in Walnut Creek owned and operated by Generations Healthcare, LLC, and GHC of Walnut Creek, LLC. The plaintiff was assigned to work at the center by HCSG West, LLC, Care Center of Rossmoor, LLC, and Healthcare Services Group, Inc., which supply housekeeping and other services to various healthcare facilities. In 2017, a new supervisor began subjecting nearly daily, unwelcome verbal and physical harassment against the plaintiff. The supervisor’s unwanted physical harassment included slapping the plaintiff’s buttocks, grabbing his arms, and twisting and touching him inappropriately on his chest. The supervisor also regularly made comments of an offensive, degrading, and sexual nature about our client, his wife, and other employees.

After a while, he submitted formal complaints of sexual harassment, to which he never received a response. Instead, the plaintiff was suspended and terminated on account of his gender and in retaliation for his protected conduct. The lawsuit contends the plaintiff was subjected to a hostile work environment in which egregious sexualized conduct was severe and pervasive, and then retaliated against by fabricating false allegations in support of their efforts to suspend and terminate him.

We are also representing a former employee of the skilled nursing and rehabilitation center in Walnut Creek. She began her employment in 2018 as a dietary manager and claims that during her time there, she faced a toxic environment in which frequent, ongoing, offensive verbal and physical sexual harassment. According to the lawsuit, this behavior was not only tolerated but endorsed by her former employer and supervisor who would see and interact with the plaintiff as her office was located next to his, and she regularly ran into him throughout the day. The supervisor subjected her to unwelcome and offensive comments of a sexual nature. He would frequently stare at her during their interactions and meetings or while passing her in the hallway and would stare at her in a sexual manner. On numerous occasions, the plaintiff also observed how her former supervisor would make demeaning and belittling comments to other employees. In 2019, our client was discharged from employment as a result of her supervisor’s inappropriate and harassing conduct and the hostile work environment.

The harassment and abuse of employees by their supervisors is an issue that can create an oppressive, hostile, intimidating, abusive, and offensive work environment, and can interfere with their emotional well-being and ability to perform their duties. According to the U.S. Equal Employment Opportunity Commission (EEOC), unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that constitutes sexual harassment directly violate Title VII of the Civil Rights Act of 1964. One-way employers can combat sexual harassment in the workplace is by establishing a written nondiscrimination policy, including a specific policy against sexual and all other forms of harassment. The policy should define sexual harassment and be published in the employee handbook, as well as establish how an employee will be able to report harassment and other types of workplace issues.

John Winer featured in LA Daily Journal’s New Laws 2021 Edition

John Winer was featured in the Los Angeles Daily Journal’s New Laws 2021 edition regarding AB 2143, which aims to bring changes to AB 749, a #MeToo inspired bill that prohibited the use of no-rehire clauses in settlement agreements regarding disputes in which the worker had filed a complaint against the employer. In 2020, Gov. Gavin Newsom signed AB 2143 into law, which amends AB 749 to also allow an exception, permitting a no-rehire provision if the aggrieved party has engaged in criminal conduct. In order for the sexual harassment or sexual assault exception to apply, the employer must have documented the good faith determination of sexual harassment or sexual assault before the aggrieved party filed the claim against the employer.

The Problem of Sexual Harassment in the Department of Veterans Affairs

Written by John Winer

January 4, 2021

Recent revelations indicate that the Department of Veterans Affairs (VA) has had a prevalent problem of sexual harassment over the past few years. According to a study conducted by the Merit Systems Protection Board, nearly one in four Veterans Affairs employees experienced sexual harassment between 2014 and 2016. Now a recent report found that America’s six leading veteran’s organizations have joined together to demand the resignation of the secretary of Veterans Affairs after a federal investigation found he aimed to discredit a female veteran who filed a sexual harassment claim instead of properly investigating the matter. Although the Department of Veterans Affairs has policies to prevent and address sexual harassment in the workplace, the United States Government Accountability Office found that some aspects of the policies and the complaint processes may hinder those efforts.

In a letter signed by leaders from the Veterans of Foreign Wars, the American Legion, Disabled American Veterans, Paralyzed Veterans of America, AMVETS, and Vietnam Veterans of America, veterans are calling on President Donald Trump to fire VA Secretary Robert Wilkie for his mishandling of sexual assault and harassment allegations. The claims come after an inspector general inquiry criticized the secretary of Veterans Affairs for a response that was deemed to be unprofessional after a female Navy veteran, who is the senior policy adviser for the Women Veterans Task Force on the House Veterans Affairs Committee, reported a sexual assault at a department medical center in 2019. According to the New York Times, the letter detailed how the veteran groups had lost all confidence in Wilkie’s ability to lead the government’s second-largest department after it was found he had acted unprofessionally and unethically. The groups are asking the president to act in the last weeks of his administration, noting that Wilkie had refused to accept responsibility and was refusing to resign, claiming he “will continue to lead the department.”

An audit report released in June by the United States Government Accountability Office found that roughly one in four employees at the Department of Veterans Affairs have experienced sexual harassment in the workplace in recent years, and one in three staff have witnessed instances of harassment. Federal News Network reported that about 22% of Department of Veterans Affairs employees claimed they experienced sexual harassment at work over a two-year period, and 14% of federal employees across government said they experienced harassment during the same two-year period. The numbers are likely to be higher because the Veterans Affairs department does not have a centralized system to collect and track harassment complaints, and managers are not required to report instances of sexual harassment to a central office.

In response to the allegations, the Department of Veterans Affairs stated that by the end of December 2020, it will have developed a plan to ensure consistency of sexual harassment policies throughout the department, and it will begin implementing this plan by the end of March 2021. They also stated that they would develop a system for managers to report sexual harassment allegations, and it will restructure the agency’s sexual harassment prevention training for all employees to make it more impactful, and that such training would be assigned to every employee based on their role with implementation planned by the end of September 2021.

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