HUMAN RESOURCES LAW: DISCRIMINATION

SEXUAL AND OTHER FORMS OF HARASSMENT AND DISCRIMINATION

What is sexual harassment?
Sexual harassment is prohibited by California state and federal law (i.e., Title VII of the Civil Rights Act). Generally, employers may not discriminate on the basis of sex, and sexual harassment is a form of sex discrimination. Many actions can constitute sexual harassment, as discussed below.

Who enforces the law regarding sexual (and other kinds of) harassment and discrimination?
The federal agency charged with enforcing Title VII is the Equal Employment Opportunity Commission (EEOC). In California, the Department of Fair Employment & Housing (DFEH) is the state agency that handles such claims. Before consulting with the federal or state agencies, we strongly urge you to talk to an employment law attorney.

What are some examples of sexual harassment?
The EEOC explains that:
Unwelcome sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature constitutes sex harassment when [a] submission to such conduct is made an explicit or implicit term or condition of an individual's employment, [b] submission to or rejection of such conduct is used as the basis for employment decisions, and [c] such conduct unreasonably interferes with work performance, or creates an intimidating, hostile or offensive working environment. Given this definition, you can see how many forms of inappropriate behavior can be considered sexual harassment, including:

  • contact of a sexual nature such as touching, hugging or brushing against a person’s body
  • explicit or implicit propositions to engage in sexual activity
  • offensive communications regarding a person’s body or clothing, sexually explicit stories or jokes, whistling, ogling, or leering looks, and exposure to graffiti, pictures, or posters of a sexual nature, or other similar materials.

What can I do about sexual harassment?
You have the right to work in an environment that is free of bias, intimidation, or hostility based upon gender. Remember that sexual harassment is prohibited by both state and federal laws. If you are sexually harassed, you should consider:

  • directly informing the harassor that the conduct is unwelcome and that it must stop. This response could prevent future harassment because the person may not have realized that such behavior was offensive;
  • documenting the circumstances, such as the nature of the sexual advances, and the context in which the incidents occurred. Keep track of dates, places, times and witnesses as soon after the incidents occur as is possible. Note-taking immediately after an event may prove to be your best evidence of it.

Who can I go to with my sexual harassment complaint?
To file a complaint of sexual harassment, you may use any employer complaint mechanism or grievance system that is available. You can also report your discrimination complaints directly to the state and/or federal agencies identified above. You should also consider contacting an employment law attorney for information about which employers are subject to these rules.

What if I report the sexual harassment to my employer, but it continues?
If the sexual harassment continues after reporting it to your employer, or is not dealt with to your satisfaction, you can contact an employment law attorney or the state or federal agencies that deal with workplace discrimination. Employers subject to these rules are supposed to take steps to stop harassment from continuing.

Am I protected if I report someone else being sexually harassed?
Generally, yes.

What other forms of sexual harassment and gender discrimination are illegal?
Sexual harassment is not the only area of discrimination that is prohibited by state or federal law. For example, in California, it is also unlawful for an employer to discriminate on the basis of:

  • race/color
  • marital status
  • age
  • medical condition
  • sexual orientation
  • ancestry
  • religious creed
  • national origin
  • physical disability
  • child or family needs
  • condition of pregnancy
  • mental disability

Discrimination can take the following forms, such as (1) refusing to hire, (2) refusing to select someone for training leading to employment, (3) barring from employment, and (4) termination. Bear in mind that this list is far from exhaustive.

Are there exemptions to discrimination laws?
Exemptions from certain discrimination laws do exist. For example, in California, small employers (those with less than five full-time employees) are exempt from some forms of discrimination. Other exemptions also exist, depending on type of employer and/or workforce size.

What if a co-worker does the harassing?
Under certain circumstances, harassing a co-worker is also unlawful. Whether the harassment is severe enough to warrant legal action depends on a number of factors, such as whether the employer knew, or should have known, of the harassment and whether the employer took reasonable steps to prevent and/or stop the harassment.

What are some of the remedies associated with these anti-descrimination laws?
Available remedies can include reinstatement of employment, back and/or future pay, interest on any monetary amounts lost, emotional distress damages, medical expense reimbursement, punitive damages, costs of pursuing the lawsuit and/or your attorneys’ fees, if any.

Does union membership affect my right to be free from harassment and discrimination?
You are usually entitled to a discrimination-free workplace, irrespective of whether you are a member of a union. Many union Collective Bargaining Agreements also prohibit workplace discrimination, but you are not usually required to “grieve” your discrimination issues before pursuing a civil action. Nonetheless, it usually helps if you report workplace discrimination to your union immediately.

How do I contact the agencies that deal with employment issues?
Victims of workplace discrimination are generally required to file a complaint of discrimination with the state and/or federal agency before pursuing a lawsuit in civil court, so it is important to know how to reach these agencies. Scott Cole & Associates maintains contact information for these offices throughout California.

Which EEOC or DFEH office should I contact?
This depends on where you live and/or where the violation occurred. Both the EEOC and the DFEH have offices throughout California. Call us, check your phonebook or call 411 Directory Assistance for the proper office.

Does it cost anything to file a discrimination complaint with the EEOC or DFEH?
No.

OTHER LEGAL CLAIMS

For unpaid overtime, expense reimbursement and meal and rest break claims, what do I do?
For claims involving violations of what we call “wage and hour” laws, you should contact attorneys knowledgeable in this field or contact (if in California) your local Labor Commissioner. If you have questions regarding the nature of your claim or want to know more about whether you even have a claim, feel free to contact us at 510-891-9800 or via e-mail at info@scalaw.com. There is no fee or cost to you to confidentially discuss your legal questions with us.

Who do I talk to about injuries on the job?
For claims involving physical and emotional injuries on the job, contact an attorney knowledgeable in workers’ compensation law or contact the State workers’ compensation division. We may also be able to direct you toward legal counsel for those issues. While we cannot guarantee the quality of anyone’s work but our own, we are connected to a large network of attorneys who may be able to assist you.

Finally, what about health and safety claims?
We may also be able to direct you toward legal counsel for health and safety issues, or you can contact CAL-OSHA directly for more information.

These questions and answers are for educational purposes only and cover just a few topics that are commonly of interest to workers. This material should not be construed as legal advice, the establishment of an attorney-client relationship, or as indicative of a particular outcome regarding any legal issue you might have.