San Francisco Employment Law Firm Blog

Workplace harassment is a source of tremendous stress for many employees in California. Some of them confront their harassers in one way or the other, while others take a passive approach, feeling helpless or not believing that anyone can help them, including their human resources management.

Unless the harassment is very severe (such as unwanted touching, violence or threats of violence, repeated racial or sexist slurs, etc), most attorneys will advise you that suing the employer or the harasser is not a great option if you are still employed with the company where you are subjected to harassment. This is because any recovery of damages in employment related cases is to a great degree proportionate to the loss of wages. If you are still employed and have not been terminated, you are not losing any wages, which makes your case "smaller."

This doesn't mean however that you should remain helpless and do nothing to protect yourself and your position at workplace. Here are a few simple, practical and important steps you can and you should take if you are subjected to harassment, but no action such as suspension and termination has been taken against you:

1. Make sure you complain in writing to your supervisor or your supervisor's manager if your supervisor is the harasser about your experience. Do everything you can to make sure that the employer cannot deny later that they knew you were harassed. Fax your complaint and keep a record of transmission confirmation. Deliver your letter in person if possible and also call to make sure that your complaint has been received by the people authorized to review harassment complaints and investigate the allgations.

2. If not action is taken to investigate your complaints within a few weeks to a month and the harassment continues, submit another complaint and demand that an investigation into your allegation be conducted as soon as possible an action to be taken against the harasser. This might also be a good time to contact and experience employment attorney who can advise you on the next steps considering all the specific circumstances of your situation.

3. If possible, don't let your performance slip and give your employer "legitimate" reason to terminate you and cover retaliatory discharge with such common reasons for firing as "insubordination" or poor performance.

4. If you communicate with HR and your management by e-mail, make sure you back or copy all your e-mails, so that you have access to your communication later. It's not uncommon for employees to be escorted out of the office upon termination without any notice and not have any opportunity to access their personal information on their office computer ever again later. Even though the employers are obligated to preserve electronically stored information about notice of potential litigation, deleting your e-mails and documents stored on the computer is too easy.

5. If there are witnesses (co-workers) to the way you are harassed, ask them to write a brief statement and sign it under the penalty of perjury. Some people will be afraid to testify against their employer for obvious reasons of being concerned about retaliation, while others won't mind helping you, especially if they are unhappy about the way you are treated (or they are treated. This can be used later as a compelling peace of evidence to prove that you indeed were harassed.

You might not be able to prevent your demotion, transfer, suspension or wrongful termination, but you can make sure you line up your "weapons" effectively, so if and when you need to bring a claim against your employer, they will have many reasons to settle your case sooner, or give you your job back and remove the harasser, or use the same weapons in court to your great benefit.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace

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The leading opinion on the issue of employers' obligation to remedy workplace sexual harassment of a victim by his co-workers, is the ninth circuit case Ellison v. Brady (1991). In that case, the court carefully analyzed the approach that a number of other courts take toward determining whether the employer complied with the obligations with regard to harassment imposed by law. The court made several important conclusions. First, the court reiterated that employers are liable for failing to remedy or prevent a hostile work environment of which management-level employees knew or should have reasonable known.

Then, the court attended to the issue of what action an employer should take against the harasser to avoid liability. The EEOC guidelines recommend that an employer's remedy should be immediate and appropriate without adversely affecting and terms and conditions of the complainant's employment. The ninth circuit, agreeing with a number of other courts, held that the remedies against harassment should be reasonably calculated to end the harassment. Not all harassment warrants dismissal. Rather, remedies should be assessed proportionately to the seriousness of the offense. Employers should impose sufficient penalties to assure a workplace free from sexual harassment. The reasonableness of an employer's remedy will depend on its ability to stop harassment and the kind of remedy used.

In Ellison the harasser was transferred to a different work locations for six months, after which he was returned to work to the original location. The harasser was not subjected to any other significant discipline, even though the victim complained repeatedly about the relatively egregious comments and sexual innuendos by the harasser. Further, the employer actualy transferred the complainant to the less desirable location. The court concluded that by failure to take effective remedial measures against the harasser combined with taking adverse action against the victim by transferring her to a less desirable work location, the employer did not meet it's obligation with regard to harassment prevention and was therefore liable.

Another clear pattern is present in subsequent court decision on harassment. An employer who continues using the same remedial action toward a repeated offender is violating the law, because it should be obvious to the employer that if a more gentle remedy does not change the harasser behavior, the same remedy is not effective, and a more stringent disciplinary action must take place. Thus, writing up the harasser over and over is not a sufficient remedial measure. After one or two write-ups, an employer is well advised to take a more serious action, including suspension, administrative leave or even termination of employment, especially if the evidence of harassment is clear and corroborated by other employees.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace

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Under the avoidable consequences doctrine, as recognized in California, a person injured by another's wrongful conduct will not be compensated for those damages that the injured person could have avoided by reasonable effort. Thus, this doctrine gave rise to the duty to mitigate damages in employment cases - the duty to search for a comparable employment that wrongfully terminated employees have in order to prove their wage loss in court as a result of termination.

This doctrine also applies as a partial defense to the determination of damages in sexual harassment hostile work environment claims against employers. This defense has three elements (1) the employer took reasonable steps to prevent harassment; (2) the employee unreasonably failed to sue the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered. Department of Health Services v. Superior Court (2003).

This defense will allow the employer to escape liability only for those damage that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense or humiliation, by taking advantage of the employer's internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.

Employees, of course, may be reluctant to report their supervisors to higher management, and an employee will often attempt informal negotiation with a supervisor or other strategies. Delay that results from an employee's initial resort to such non-confrontational means of dealing with the supervisor harassment and failure to file a formal harassment complaint with the human resources department will have to be carefully evaluated to determine whether it was reasonable in a particular employment setting.

It is important that this defense only affects damages but not liability. An employer that has exercised reasonable care in providing channels of reporting harassment remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care. In other owords, if the employer proves that the employee, by taking reasonable steps to utilized employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace

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Many workers intuitively believe that just because their co-workers act toward them in a rude or unfair way or just because they are not friendly to them, this is ground for harassment claim in court. It is important to remember, however, that under California law, a conduct is considered harassment only if it's "sufficiently severe and pervasive to alter the conditions of the alleged victim's employment." This standard is quite high, and isolated incident of rude or inappropriate behavior usually don't qualify as harassment.

Thus, in one recent case, the Second District court considered a situation where the worker sued her employer for harassment hostile/work environment after several of her co-workers teased her on several occasions in front of the customers and called her a "retard," and refusing to change her schedule so that she could avoid working during the same shift as those employees who teased her. Young v. Exxon Mobil Corp. The court held that, as a matter of law, the evidence did not establish harassment sufficiently severe and pervasive to be actionable under the FEHA (Fair Employment and Housing Act) to alter the condition of Young's employment.

Admittedly, it takes a more egregious conduct to constitute harassment. Many companies can be characterized by being stressful workplaces with office politics, "backstabbing," and other manifestations of people's dissatisfaction of being forced to work together, but to constitute harassment, these working conditions must clearly be beyond the typical disagreements, and conflicts between co-workers, and a common stress that is brought about by most jobs.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace

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Most employers, especially larger companies include detailed provisions on their anti-harassment at workplace policy. These policies generally serve several purposes. First, the employers are required to implement various harassment training and prevention procedures at workplace. Secondly, these policies are designed to provide an opportunity for employee to address and eliminate harassment at workplace. Lastly, and not less importantly, existence of those policies in the employee handbook is commonly used as a strong defense against sexual harassment, racial harassment and other hostile work environment claims, if the employee claims that he/she was harassed but failed to use the grievance procedures as provided by the employer's harassment policy.

However, the anti-harassment policies and the grievance procedures that the employee who believe to be harassed are encouraged to follow often have a fundamental flaw that entire defeats their use - many harassment manuals provide that the employee who feels that he/she is harassed should complain to his/her immediate supervisor or manager. The problem is that the immediate supervisor is often the source of harassment. If that's the case, that kind of policy will neither provide effective help to the employee, as it goes without saying that complaining to the source of harassment about his own harassment would be pointless.

Moreover, the employee's failure to use anti-harassment grievance procedures of the company in this case will likely not serve as a valid defense to the employer. As the United States Supreme Court stated in a leading case on harassment: "the employer's grievance procedure apparently required an employee to complain first to her supervisor. Since in this case the supervisor was the alleged perpetrator, it is not altogether surprising that the victim of the harassment failed to invoke the procedure and report her grievance to him. The employer's argument that the harassed employee's failure should insulate it from liability might have been substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward..." Meritor Savings Bank, FSB v. Vinson.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace , Hostile Work Environment , Racial Harassment , Sexual Harassment , Verbal Harassment , Workplace Harassment

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It is a common tactic for an employer to defend an employee's claims of sexual harassment at workplace by arguing that because the conduct in question towards the victim wasn't "sexual enough," she cannot state a valid claim for sexual harassment. This is exactly what happened in Birschtein v. New United Motor Manufacturing, Inc. (2001). In that case, a forklift driver's conduct included asking a female co-worker (Birschtein) out on a date 3-4 times, telling her that he had sexual fantasies about her in the most explicit detail, staring at her, and according to co-workers, driving around and looking for her when she was not around.

The defendant employer argued that its conduct did not amount to actionable sexual harassment because it was not "based on sex." The court disagreed. Relying on prior, well established case law on sexual harassment, the Court stated that sexual harassment hostile work environment need not have anything to do with sexual advances. Hostile work environment shows itself in the form of intimidation and hostility for the purpose of interfering with an individual's work performance.

Hostile environment sexual harassment may occur even if gender is a substantial factor in the discrimination and that if the claimant had been a man, she would not have been treated in the same manner. In other words, to constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Gender Discrimination , Harassment at Workplace , Hostile Work Environment , Sexual Harassment

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The most significant immediate measure and employer may and should take in response to sexual harassment or another kind of harassment allegation by one employee against the other or against his or her supervisor is to launch a prompt and fair investigation to determine whether the complaint is justified. The employer must take temporary steps to deal with the situation while it determines whether the complaint is justified. Swenson v. Potter (9th Cir. 2001) 271 F3d 1184. The greater the potential injury to the complaining employee, the greater care the employer must take in investigation harassment allegations and preventing the alleged harassment from recurring or escalating.

The employer must conduct an investigation even if the alleged harasser denies the accusation and the victim wishes to drop the matter. The employer must investigate from "worst case scenario" in order to avoid exposing other employees to the alleged misconduct. Malik v. Carrier Corp. (2nd Cir. 2000) 202 F3d 97. A reasonable investigation does not require a trial-type proceeding. The inquiry may be conducted informally in a manner that will not unnecessarily disrupt the company's business.

If you believe that you are or have been a victim of harassment at work place in San Francisco, San Mateo/South Bay or East Bay regions, you might be entitled to legal protection. If you would like to discuss your situation at workplace, feel free to contact us by phone or by filling out the form on this page.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace , Investigation at Workplace , Workplace Harassment , Wrongful Termination

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The California Fair Employment and Housing Commission (FEHC) defines "harassment" as:
- verbal harassment, such as epithets, derogatory comments or slurs (or repeated sexual comments and jokes or prying into one's personal affairs);
- physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or
-visual harassment, such as derogatory cartoons, drawings or posters, lewd gestures or leering.

California Fair and Employment Housing (FEHA) generally provides a broader protection to employees in California than Title VII in the following aspects:
- it specifically prohibits "harassment" (and retaliation) as well as "discrimination";
- it extends protection to independent contractors (persons providing services pursuant to a contract) as well as employees and job applications. Cal. Gov. Code 12940(j)(1)
- the FEHA ban on harassment extends to all employers (unlike Title VII, which applies only to employers of 15 or more employees, or the FEHA's general ban on discrimination, which applies only to employers of five or more employees). Cal. Gov. Code 12940(j)(4)(A).
- the FEHA ban on harassment extends to nonprofit hospital and health care facilities affiliated with or owned by religious entities.
- and under the FEHA, liability for harassment extends to any employee of a covered employer.

For these reasons, among others, most employees bases sexual harassment and other harassment claims primarily on the FEHA and only secondarily on Title VII.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Fair Employment and Housing Act (FEHA) , Harassment at Workplace , Sexual Harassment , Workplace Harassment

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It is common for an employee who is subjected to discriminatory conduct or harassment at workplace in California to be afraid to complain about the harasser to his superiors for fear of retaliation and losing a job. However, an aggrieved employee simply has nothing to gain by keeping quiet. In most cases, the harasser's unlawful conduct not only doesn't stop, but becomes progressively more unacceptable and egregious, causing more stress to the victim of potential discrimination and harassment.

Even more importantly, by not complaining, and employee not only doesn't allow the employer to address discrimination and harassment and possibly discipline the harasser, but the victim virtually forecloses possibility of having viable legal claims for discrimination and harassment in the future. Unless the harasser is the aggrieved employee's supervisor, and employer is not liable for discrimination and harassment, if the employer did not know or had not reason to know that such discrimination or harassment took place.

Therefore, if you believe that you are subjected to unlawful discrimination and/or harassment at workplace, it is crucial that you complain about the conduct in writing to your human resources department and higher if necessary. In your complaints, you should outline in detail the facts and the circumstances of what you believe to be an unlawful conduct toward you at workplace, requesting prompt, thorough, formal investigation of your allegations as required by law.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace , Hostile Work Environment , Investigation at Workplace , Pregnancy Discrimination , Racial Discrimination , Sexual Harassment , Workplace Discrimination , Workplace Harassment

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Many workers who are subjected to sexual or other forms or harassment prefer not to disclose this to their supervisor or human resources department. This reluctance to speak up is usually motivated by fear of retaliatory termination in response to a complaint about harassment.

However, choosing not to complain about harassment at your workplace is hardly ever a good idea. First, the harassment which is not addressed usually only gets worse as the harasser sees how much he can get away with without being punished. More importantly, under California law, while the employer is strictly liable for the harassment by a victim's supervisor, the employer is liable for harassment by a co-worker only if the employer knew or had a reason to know of the harassment. Thus, by not complaining about harassment, the victim virtually forecloses the future opportunity to seek legal redress for hostile work environment and harassment, as it's hard to blame someone for preventing harassment if that entity wasn't even aware of misconduct which the victim of harassment was subjected to.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Harassment at Workplace , Workplace Harassment

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