San Francisco Employment Law Firm Blog

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

Bookmark:

One of the reasons that proving discrimination is such a challenging task in employment law is the fact that proving workplace discrimination requires showing a discriminatory state of mind. For obvious reasons, direct evidence of discrimination is rarely available, as few, if any, employers or supervisors would ever admit that they engaged in unlawful discrimination. Thus, eliciting circumstantial evidence (that evidence which inferred from other circumstances) can be crucial to a successful discrimination claim/lawsuit. This evidence includes demonstrating that the employee was treated differently from other similarly situated employees, certain remarks that would suggest hostility toward an employee because of his/her race, age, disability, religion, etc.

One of the very common ways in which employer try to deny allegations of harassment and discrimination by aggrieved employees and refute circumstantial evidence of discrimination and wrongful termination is by arguing that the reason that they treat the subject employees differently is because of their poor performance. It's not uncommon for an employer who is trying to get rid of a certain employee to create a "paper trail" of performance issues by issuing warning letters, having counseling sessions with an employee, and take other unethical measure to mask the true reasons for the planned unlawful employment termination.

Rebutting the poor performance argument through documentation evidence and statements of co-workers with regard to the employee's good performance is an important part of many, if not most, discrimination and wrongful termination claims, as it casts doubt on the employer's true motives for discriminatory conduct and termination and suggest that the real reason for employee's termination was other than his/her job performance.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Workplace Discrimination , Workplace Harassment

Bookmark:

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

Bookmark:

Alameda county is one of the most ethnically diverse areas, which brings lots diversity into workplace. With all wonderful benefits of having a variety of people from different backgrounds and cultures at workplace, this sometimes inevitably leads to animosity and conflicts between different racial groups and claims of race discrimination, racial harassment, and wrongful termination claims based on racial conflicts and claims of retaliation.

Employers who employ two or more large groups of workers from different racial backgrounds are likely to find themselves in situations where members of two or more racial minority groups of employees complain that the members of the other ethnic group engage in unlawful racial discrimination and harassment. For instance, it is not uncommon for the County of Alameda government agencies in Oakland, Alameda and surrounding cities to face these kinds of issues. An employer may find itself in a predicament in such circumstances. On one hand, the employer has an affirmative obligation to conduct a prompt and thorough investigation of harassment and discrimination complaints as FEHA (Fair Employment and Housing Act Requires), and take all appropriate measure to remedy harassment/discrimination. On the other hand, if the employer takes action against the alleged harasser, such as suspension, administrative leave, or termination, the company/agency runs the risk of being sued for racial discrimination by the disciplined employee.

This is one of the major reasons why it is so important for an employer to make sure that the conducted investigation is as thorough, unbiased and well documented as possible, as it will serve as a strong defense against discrimination and harassment allegations, showing that the employer too all reasonable steps to prevent/remedy discrimination and harassment.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Racial Harassment , Workplace Discrimination , Workplace Harassment , Wrongful Termination

Bookmark:

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

Bookmark:

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

Bookmark:

An individual harasser at workplace in California, whether he / she is a co-workers or a supervisor, may be personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA). This means that the employee who is a victim of sexual (or other) harassment, may be able to pursue legal action against both his or her employer and the individual who causes harassment and creates hostile work environment.

FEHA defines "supervisor" as an individual who has either (1) the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees; or (2) the responsibility to direct other employees, adjust their grievances, or effectively recommend such action on grievances, provided that the exercise of the authority or responsibility requires the use of independent judgment. Cal. Government Code section 12926(r).

For more information about FEHA please visit the site of California Department of Fair Employment and Housing.

Posted by Arkady Itkin | Permalink | Email This Post

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

Bookmark:

It is not unlikely for employees to have their words and/or conduct to be misinterpreted by their co-workers and have their colleague accuse them of sexual harassment without sufficient reason. An employer has a duty to investigation all sexual harassment allegations. Failure to do so may subject the employer to liability for both sexual harassment and failure to prevent sexual harassment. However, employee accused of harassing often feel helpless and without remedy to prove their innocence.

An employee who is falsely accused of sexual harassment is not without remedy however. That employee is also entitled to a prompt, thorough investigation of the facts and evidence of any alleged harassment. If the employer fails to conduct thorough investigation and instead summarily terminates a worker, he / she may have a defamation claim against the employer. Generally, false complaints of harassment and discrimination are conditionally privileged and do not constitute defamation, unless those accusation are made with malice. To show malice on the part of the accuser, the accused may be able to show whether the accuser had a history personal issues/hostility toward the accused, a pattern of unfounded complaints against co-workers, or any other ulterior, personal motive against the accused. If malice is shown, the liability for defamation of character may be attached to both the employer and employee personally.

If you believe that you have been a victim of defamation at workplace, contact Arkady Itkin - San Francisco employment lawyer to discuss your claims.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Defamation , Sexual Harassment , Workplace Harassment

Bookmark:

The California Fair Employment and Housing Act specifically prohibits harassment based on “race, religious creed, color, and national origin.” Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment. Thus, allegations of a racially hostile workplace must be assessed from the perspective of a reasonable person belonging to the same racial or ethnic group as plaintiff.

Harassment Standard under California Law

To constitute racial harassment, the conduct must be sufficiently “severe” or “pervasive” to later the conditions of the victim’s employment. The victim of the racial harassment must show a concerted partner of harassment of a repeated, routine or a generalized nature” and that the conduct constituted an “unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee’s ability to do his or her job.”

Although occasional, isolated incidents are usually not enough to create hostile work environment, even a single act by a supervisor may be severe enough to alter the conditions of employment. Thus, while the co-workers single racist remark may not be sufficient to constitute harassment, the same statement by the victim’s direct supervisor might be actionable, due to the authority that the supervisor has over a victim and the increase stress/injury resulting as a result of being subject to harassment by the person in a position of authority.

Employer’s Duty to Prevent Harassment

As with sexual harassment claims, an employer has a duty to prevent and remedy instances of racial and national origin harassment. An employer who fails to remedy problems of which it has actual or constructive knowledge may be held liable for harassment despite the existence of a formal policy against harassment.

Harassment by member of same race

At least one federal court held that racial slurs may constitute harassment even if made by one member to another member of the same race, as the court held in Ross v. Douglas County (8th Cir. 2000).

When harassment is aimed at others

Because the injury from harassment focuses on the workplace environment as a whole, a hostile environment may exist even if some of the hostility is directed at other workers. Thus, where racial slurs have been directed at a minority race of which plaintiff is a member, similar slurs directed at other minorities may contribute to the overall hostility of the working environment.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Racial Discrimination , Workplace Harassment

Bookmark:

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

Bookmark: