In order to decide whether to file a case for wage violation or harassment / discrimination against the employer that you are still working for, you should take into account not only the legal aspects of your potential case but also the practical factors. In the short audio recording below, I talk about three key questions you should ask yourself when deciding whether to bring a case against your present employer. I also bring examples of two different situations to illustrate the point:
On October 24, 2017, an Orange County jury returned a verdict in the amount of $176 for a mechanic who sued his employer for racial harassment, racial discrimination, and disability discrimination. The defendant in that case was a heavy equipment rental company. They hired a plaintiff to perform maintenance on their machines. After walking off the job, Plaintiff claimed that may of the conversations, text messages and e-mails between him and the defendants were racially offensive and created a hostile work environment. The manager (Caucasian) claimed that he developed a friendship with the plaintiff (African American) and their allegedly offensive exchanges were jokes that the plaintiff never complained about or said were bothersome to him in anyway. The jury was not convince and found for the plaintiff on the racial harassment claim, in large part because of the extensive use of “N” word in those exchange. However, the jury also found that plaintiff was not an employee but an independent contractor and found for the employer on the remaining claims of racial and disability discrimination.
This case is a reminder of a significant difference between harassment and discrimination claims. A discrimination claim can only be made by an employee, while a harassment claim can be made by any worker, whether he or she is an employee or an independent contractor. Evidence of racial slur in a written form, i.e. e-mails, text messages, and social media messages is one of the most compelling types of evidence to prove a harassment case. Both employers and employee should be aware that what might be an innocent joke at one point, can be used a powerful evidence in the future, and proving that it was a joke might be an uphill battle, especially when it comes to racially charged comments.
Retaliation claims increased by nearly five percent in 2015 and continue to be the leading type of cases filed by workers across the US. Various disability law violations, including ADA disability discrimination claims increased by six percent from last year and are the third largest category of claims filed by employees.
The U.S. Equal Employment Opportunity Commission (EEOC) released breakdowns of the 89,385 charges of workplace discrimination that the agency received in fiscal year 2015. The year-end data shows that retaliation again was the most frequently filed charge of discrimination, with 39,757 charges, making up 45 percent of all private sector charges filed with EEOC. Race, disability and sex discrimination were other most commonly brought charges in 2015,. EEOC said it resolved 92,641 charges in fiscal year 2015, and secured more than $525 million for victims of discrimination in private sector and state and local government workplaces through voluntary resolutions and litigation.
Charges raising harassment allegations made up nearly 28,000 charges of the total number of claims, or 31%. Employees claimed harassment or hostile work environment based on race, age, disability, religion, national origin and sex, including sexual orientation and gender identity.
Under FEHA (California Fair Employment and Housing Act) anti-discrimination laws, only employers who employ five or more employees can be liable for unlawful discrimination. This means that the FEHA protection against workplace discrimination generally does not extend to employees who work for smaller employers. However, in limited circumstances there is a way around this issue. Unfortunately, it only applies to racial/ethnic and religious discrimination as well as discrimination based on sex or gender, and not to other types of discrimination (such as disability discrimination).
An employee who was subjected to or fired due to ethnic/racial/religious discrimination or sex discrimination can a file a claim for wrongful termination based on the California Constitution Article 1 Section 8, which provides: A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race,
creed, color, or national or ethnic origin.
A mean supervisor who uses or abuses his power and authority in obvious or more subtle ways that none of the workers like, but many have to put up with, at least until the solution to the problem is found, such as transferring to a different department, have a manager transfer or … finding a another job.
How do you deal with a mean manage who seems to be on a power trip, when everything else seems to be going well at work? – You like what you do, you like the company, the co-workers, the pay, and it seems to be that it’s just that one “bad apple” that ruins your experience at work.
Remember – there is no equality between you and your superiors. For some odd reason, many employees think that they have the same rights and privileges as their bosses. They think that if the bosses raises his/her voice, then so can they. Wrong. Why? You can’t fire the boss for yelling at you, but he can fire you for any reason due to your likely at will employment, let alone yelling at your manager. There are many other things that your superior can probably get away with that you can’t. A workplace is not a democracy and you shouldn’t treat it as such. Very few fights are worth fighting over. You have nothing to gain by proving to your boss that you are right and he/she is wrong except getting in trouble and risking being retaliated against. Standing up for yourself is important. However, you have to make sure that what you stand up for really matters to you personally and it’s not just a matter or principal. For instance, suppose your boss wrote a performance review, in which he criticizes your work ethic or attention to detail. This kind of criticism is inherently subjective and is a matter of opinion. It’s hardly worth getting into a debate with your manager and trying to prove that you are indeed extremely attentive and the hardest worker the company has.
I almost feel like the word “harassment” is the wrong term of the legal claim entitled “harassment at workplace” in the legal world because its legal meaning is so different from the meaning of the word in the ordinary, day-to-day life. Under the law, an actionable claim for harassment / hostile work environment requires showing that you are treated differently because you are a member of protected class. The courts have repeatedly held that simple being mean and rude or unfair without a discriminatory animus is not harassment and that they are not in the business of enforcing the rules of civility and proper manners at workplace; they are in the business of enforcing civil rights. As an illustration of this critical difference, consider that if your employer uses foul language or screams at you is generally not against the law and doesn’t give a rise to any claim without more. However, the same cussing and yelling accompanied by a racial slur or statement that suggest age/disability/religious/gender/sex discrimination are likely to make a claim, especially if repeated. Plainly, “you are no good junk” is not illegal, while “you are no good peace of old junk and it’s time to retire and bring some fresh blood to the company” is a strong evidence of age discrimination, or if the manager says: “you are no good cripple, and we need strong/healthy people in here” this would be a strong evidence of disability discrimination.
Even such harsh words as a “bitch” do not give rise to a legal claim. On the other hand, statements such as “you are a bitch, and I never hire another woman” or “you are a bitch and I want to have sex with you before I promote you” is likely to be evidence gender discrimination and sexual harassment respectively.
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:
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.
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.
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.