Sexual Harassment

August 22, 2008

Can you be fired / terminated for off-duty conduct?

An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee’s conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer’s favor.

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

August 12, 2008

When you are falsely accused/charged with sexual harassment at work

by Arkady Itkin

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.

July 24, 2008

What is Considered Sexual Harassment in California?

by Arkady Itkin

Many people believe that sexual harassment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-worker or a supervisor such as sexual innuendos, offensive touching, unwanted flirting, sexual e-mails and text messages, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment.

On the other hand, hostile words or conduct based solely on personal animosity is no actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claim sexual harassment. For instance, if a boss and a particular employee are not compatible, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. For example, where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex.

The employer may assert a defense against liability for sexual harassment claim by showing that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. This corrective opportunities commonly include a section in the employee handbook explaining the procedures of complaining about harassment and the employer’s express commitment to address those complaints as soon as possible.

July 12, 2008

Sexual Harassment Claim Does Not Have to Be “Sexual”

by Arkady Itkin

It is commonly known that sexual harassment at workplace involves unwelcome acts of sexual nature by a co-workers or a supervisor, such as unwelcome touching, repeated unwanted propositioning, conditioning employment or promotion on sexual favors, etc.

Offensive conduct, however, need not be sexual in nature to create a hostile work environment in the workplace. Hostile non-sexual conduct (or language) directed at an employee because of his or her gender may create an actionable hostile environment. A pervasive pattern of abuse violates Title VII even if not motivated by sexual desire to drive women out of the organization. Rude overbearing, loud, vulgar and generally unpleasant comments by a male supervisor toward female subordinates, coupled with physically aggressive (though non-sexual) actions, may constitute sexual harassment if male subordinates were treated with proper respect. Interestingly enough, the fact that there were more women than men in the office does not make a difference.

A non-sexual conduct that singles out an employee based on gender may also be actionable and constitute sexual harassment/hostile work environment . In one California case, a hostile work environment was shown by evidence that male police officers engaged in overtly hostile acts toward female police officer, including stuffing her shotgun barrel with paper so that the weapon would explode if fired, spreading untrue rumors about her abilities, singling her out for unfavorable work assignments and shifts, making false complaints about her performance, and even threatening to disrupt her wedding.