What are the 3 Types of Sexual Harassment at the workplace? California's Constitution protects employees from being harassed within the workplace. Employees and employers should be familiar with the Fair Employment and Housing Act and the California Government Code § 12940(j)(1), which makes it illegal to harass an employee. Harassment isn't always physical and it is not always directed at a particular employee but it may still offend that employee. Employees may be targets of harassment based on their gender, gender identity, the way in which they express their gender, or based on an employee's pregnancy, childbirth, or related medical conditions (Cal Gov Code § 12940(j)(4)(C)). However, sexual harassment remains the most prevalent in the workplace above all other forms of harassment. Sexual harassment can come in the form of physical, verbal or visual acts.
What is expected of the employer and or organization?
It is not always an employer who is sexually harassing the employee, sometimes it can even be other employees sexually harassing an individual, however, this does not absolve the employer from being responsible for the occurrence of the harassment (Gov. C. § 12940(k)). Under FEHA regulations, employers are held accountable for not taking reasonable steps to prevent harassment from taking place. Reasonable steps taken by employers to ensure a safe and sexual harassment-free work environment includes providing prevention training. Employers are also expected to provide a copy of the California Fair Employment and Housing fact sheet to all employees upon being hired.
If an employee feels unsafe in their own workplace, it is important to discuss their potential claim with a Sexual Harassment Lawyer.
1- Physical Sexual Harassment
Physical sexual harassment is the most obvious and well-known form of sexual harassment. It is exercised through unwelcome touching such as rubbing up against a person or physically interfering with another's movements or preventing another from completing their work. Examples of unwanted touching would be if employee A placed his arms around employee B and employee B felt uncomfortable with this and asked employee A to stop. Another example would be if employee A would block employee B with his body from leaving the copy room, preventing employee B from leaving that area without having to touch employee A. An employee who has been subjected to physical sexual harassment should discuss the matter with a Sexual Harassment Lawyer.
2- Verbal Sexual Harassment
Remarks or comments that are disrespectful insults or slurs may also be considered as verbal harassment towards an individual. Under FEHA regulations, an employee may identify their experience with verbal comments as "harassment" even through nicknames, labeling, or titles. Examples of this would be employee A nicknaming employee B "Hot Stuff" or "Big Butt Balinda". These kinds of nicknames or titles are offensive and comment on an individual's anatomy and also have a sexual connotation.
Although the workplace is a space for professionals who are employed by an organization, some employees today are subjected to feeling uncomfortable and endure unwelcome interactions while at their place of employment. This can be distracting for a victim of this behavior, leaving him or her afraid to go to work. The Fair Employment and Housing Act regulations recognize verbal harassment as a form of harassment and specifies "romantic overtures" as a type of verbal harassment. But what exactly does that even mean? Put simply, this means romantic or flirtatious gestures from person A to person B in an attempt to progress a platonic or formal relationship to a romantic level. These attempts as in plural, are continuous and consistent.
In order to give rise to a claim, romantic or flirtatious remarks are still considered harassment whether the remarks are subtle or obvious. Subtle verbal overtures may be an invitation to go on a lunch or dinner date. In this scenario, although an invitation to lunch or dinner may be a way in which friends interact with one another, depending the particular circumstances this may be construed as harassment. An obvious verbal overture may be a comment such as "we would make beautiful babies together" or "I wonder what it would be like if we dated". These comments are obvious in an attempt to escalate a relationship into a romantic and or sexual realm.
An individual who has this issue at their place of work would need to contact a Sexual Harassment Lawyer to see if they have a claim against their employer.
3- Visual Sexual Harassment
The Fair Employment and Housing Act recognizes that sexual harassment may come in the form of visual harassment (2. Cal Gov. Regs. § 11019(b)(1)). At first glance "visual harassment" by definition may seem obvious in that one individual is exposing themselves to another individual who does not appreciate the exposure. However, visual harassment comes in other forms that are not as blatant as perhaps a fellow employee exposing themselves. Visual harassment can be demonstrated through cartoons or drawings that are considered offensive and or insulting to the victim. For example, a male employee may draw a character of a fellow female colleague in which her breast size is exaggerated. In that scenario, the female employee is being sexual harassed based on the visual of herself which could be construed as sexual in nature while also making her feel uncomfortable.
More commonly, in an age of technology, one employee showing a video or picture to another employee in the workplace in which that individual finds the visual offensive or insulting, may be considered as visual harassment even though it does not involve that particular employee who is offended. For example, a female or male employee may show or attempt to show another coworker a video of herself or himself having sexual intercourse with his or her partner. In this scenario, although the video does not have anything to do with the employee who is being shown the video, this act is still considered as visual harassment because it is sexual in nature, offensive, and unwelcome.
Visual sexual harassment is also exercised through posters displayed within the workplace. Posters that would fall under this category of visual harassment as mentioned above, would contain visuals that are offensive in their sexual nature and offend the particular individual.
Lewd gestures are also recognized under the Fair Employment and Housing Act as visual harassment. This could be interpreted to cover an array of acts being performed by one employee that offends another particular employee. For example, one employee may gyrate or perform pelvic thrusts towards another employee. Although the employee carrying out the act is not touching this particular employee nor are they even conducting themselves in that way in reference to that particular employee, it is still considered visual harassment.
What are my rights as an employee to practice my faith and can my employer impose their religious values on their employees?One of the greatest rights we have as citizens of the United States is the freedom topractice any religion. It is a fundamental right that is protected by the First Amendment of our Constitution. As a citizen, we are allowed to practice (or not practice) any religion we choose without government interference. However, where do we draw the line in the workplace in terms of voicing our religious beliefs and values? Is our employer allowed to impose their own religious beliefs on us?In California, religious discrimination is illegal and protected by California’s Fair Employment and Housing Act (“FEHA”). It is illegal for an employer to treat employees any differently based on our religious backgrounds or require employees to change their religious values in order to remain employed. While the concept of treating others who practice a different religion seems like common sense, religious discrimination is still a fairly serious issue in the United States. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), there were 3,825 religious discrimination complaints filed with the EEOC in 2016. As a result, there was $10 million paid out in the settlement as a result of religion-based discriminatory acts by employers. The number of religious-based complaints reported to the EEOC has more than doubled from 1997 to 2016.There are two different types of religious discrimination that are very similar to sexual harassment: quid pro quo and hostile environment. An example of quid pro quo harassment based on religious discrimination is refusing to give a promotion to an employee unless the employee attends church on Sundays. Another example of quid pro quo harassment based on religious discrimination is making an employee take off a hijab if he or she wants to work in the front of workplaces and be seen by clients. The other type of harassment based on religious discrimination is creating a hostile work environment. Some examples of this can be making fun of the practices of a particular religion that employee practices or treating an employee differently after he or she asked for a reasonable accommodation to take a day off to observe a religious holiday. Another example of creating a hostile work environment can be teasing someone because he or she does not eat pork based on religious beliefs. In some cases, an employee who constantly speaks of his or her religious faith with the intent to “convert” other employees can also be seen as creating a hostile work environment. Further, employers are prohibited from forcing workers to engage in religious activities as a requirement for employment.The California Workplace Religious Freedom Act of 2012 (WRFA) requires that employer must provide reasonable accommodation to employees to practice their religion. Such accommodation could be allowing an employee to wear a hijab at the workplace even though baseball caps or hats are prohibited. Another accommodation could be allowing an employee to switch shifts with a colleague if the employee needs to observe a certain holiday or allow employees to wear articles of clothing or jewelry affiliated with their religious practice. The accommodation is reasonable as long as it does not cause an undue burden on the employer, cause a lack of staffing, or impose a financial hardship. An example of an unreasonable accommodation can be requesting an employer to allow certain religious attire if the attire causes safety issues in the workplace. The reasonableness of an accommodation can be argued in a variety of ways.An employer is responsible for ensuring that harassment based on religious discrimination does not occur in the workplace. If you feel that you have been a target of religious discrimination, you should make a written complaint to your human resources department or management. Many incidents of religious discrimination go unreported because employees fear retaliation from their employers, such as losing their job, being demoted, being treated differently by their coworkers, or having the perpetrator discover that the employee complained and having to face further abuse or possible sabotage from the perpetrator. Retaliation is against the law in our country. Therefore, employees cannot be legally fired, disciplined, or demoted for filing a formal complaint with human resources for any incident of religious discrimination. Even if the employee is unsure of whether or not the act was one of religious discrimination and writes a formal complaint, he or she is protected from any sort of retaliation. If retaliation occurs, the employee should contact an experienced employment law office to learn about his or her rights.Despite the fact that employees are not able to be discriminated against by their religious practice (or lack of religious practice), some religious organizations are exempt from the rule. If the organization or business is primarily religious, it is able to restrict its employment to those who are of the same faith as the organization or business or share the same values. This type of discrimination is called the “Bona Fide Occupational Qualification.” It is only legal if the job description requires that the individual be of a certain religion, such as a pastor or minister. While some religious organizations may try to use this defense to ensure all employees share the same religious beliefs as them, not all job positions require that a person be of a certain faith in order to be employed with the religious organization. As an example, a gardener or a janitor does not have to be Christian in order to work at a Christian church. The religious organization must show that practicing a certain religion is essential to performing the job duties of that position.There are many different types of remedies that an individual who has been discriminated against can seek, such as back pay, being reinstated, front pay, punitive damages, compensatory damages, attorneys’ fees, and/or court costs. Religious discrimination is a serious offense and should not go unaddressed. If you feel that you may be a victim of religious discrimination, you should contact an experienced religious discrimination lawyer.
Are you a victim of domestic violence or currently breaking off from an abusive
relationship with someone you were previously dating? Is your employer giving you grievance
for taking time off to go to Court to obtain a restraining order or to seek injunctive relief against
the perpetrator? Are you currently in counseling or therapy due to abuse or domestic violence
trauma and worried about being terminated by your employer for taking time off work to attend
your sessions? If so, you need to know that you are protected by California law from getting
fired in retaliation from your employer for taking leave to ensure the safety and well being of
yourself or your children. You are also protected by law from retaliation for obtaining services
from domestic violence shelters, rape crisis intervention centers, or therapy during work hours.
Under Labor Code section 230(c ), individuals who are in situations where they are being
stalked, assaulted, or abused are entitled to time off from work to obtain retraining orders or to
seek injunctive reliefs to ensure their safety and the safety of their children. Therefore, if an
the employer is aware of such circumstances, it is illegal to terminate or retaliate against employees
who take leave to attend Court hearings related to abuse, harassment, or any form of domestic
violence under Labor Code section 230.2(c). However, you must provide certification or notice
to your employer in advance of any Court hearings, a copy of a Court order, or a police report
certifying your status as a domestic violence or abuse victim (Labor Code section 230.1(d)(2),
230.1(b)(2)). If you are worried about whether anyone else will find out about your
circumstances, your employer is required by law to keep your circumstances confidential (Labor
Code section 230.2(a)).
In addition, under Labor Code section 230(f), employers are responsible for making
accommodations to protect their employees experiencing such trauma, such as allowing them to
change their work numbers or putting locks on the employee’s work locker. Therefore, if you are
in a situation where you have a direct line at work and are being harassed or stalked, your
the employer has the responsibility to change your workstation phone number and to make
reasonable accommodations to prevent the harassment and stalking from occurring.
Also, if you or your children are currently in therapy or seeking counseling after
experiencing any sort of domestic violence or trauma and/or attending training from rape crisis
centers, you are protected under Labor Code section 230.1 from being terminated by your
employer. Lastly, If you are trying to search for new housing for you and/or your children to
prevent the abuse or harassment from occurring, you are also protected by law while you are
taking time off to do so. However, you must provide documentation, such as a physician or
counselor’s note to your employer verifying your treatment (Labor Code section 230(d)(2),
If you feel as though you were unfairly treated or have been retaliated against by your
employer while you were undergoing such circumstances, please contact an experienced
The State of California is full of employment opportunities and chances to improve your quality of life by obtaining the job that is right for you. The sun-kissed state is marveled for numerous reasons, but for employees and applicants, it truly stands out for the many laws which protect individuals in the workplace. In California, it is unlawful to discriminate against employees or applicants based on belonging to a protected class. A protected class means race, religion, sex, gender, age, national origin, color, marital status, medical condition, gender identity/expression, and or military or veteran status. If you belong to one of these classes or possess certain characteristics of one of these classes, you are protected by California State law from being discriminated against based on belonging to the particular class or having one of the characteristics. This article discusses three forms of discrimination
that may not seem obvious to the unfamiliar employee or applicant and with this knowledge and the guidance from an Employment Lawyer, you might be able to identify if you have a case.
An employer who chooses to exclude an employee or applicant from training that may lead to employment, advancement, or an internship opportunity just because the employee or applicant belongs to a protected class, may be engaging in illegal business methods.
For example, Jim, a 25 year old male, who had a passion for working in retail and fashion, was seeking a job in the particular industry. Jim found a listing online to apply for a sales position at a women's lingerie store in which offered training. He went into the store to hand in his application. When Jim arrived, he asked to hand in his application to the manager. While waiting to meet the manager, Jim noticed that all employees on site were female and on the employee backroom entrance a sign read "Girl's Club". Feeling self-assured in his communication skills and his unique resume, Jim did not let the feminine environment shake his confidence. The manager Susan, who was also female, took one look at Jim and said: "I'm sorry, but we are only considering female applicants, there is no room for a man in this place". After Jim was denied consideration for the training that would lead to employment, a female applicant with the same qualifications as Jim applied and was selected for training. Here, it would seem that Jim may have been discriminated against based on his gender which is a protected class. Overall, it would appear that Jim was refused consideration for an employment opportunity based purely on the fact that he was male. This was demonstrated through Susan the manager's comment that the store was only hiring females and that they did not want any men at the establishment. In addition to Susan's comments, the fact that all current employees were female on-site and the sign on the employee door that read "Girls Club" are strong indicators that the store has a pattern of engaging in unlawful practices of gender discrimination
. Lastly, the fact that the store hired a female employee who had the same qualifications as Jim strongly suggests that he was passed over for an employment opportunity based on his gender. Therefore, in gathering all of this information, Jim might have a claim for gender discrimination
against the lingerie store.
If an employer decides not to select a particular employee or applicant to pursue training that may lead to additional employment opportunities solely based on the fact or presumption that this employee belongs to a protected class, this may be a form of discrimination
. Speaking with an Employment Lawyer would shed further light on a situation that may be similar to Jim's issue.
- Preventing Success, Progress, or Advancement
An employer may be considered as engaging in illegal practices if it hinders an employee's career from flourishing because the employee is a member of one of the protected classes recognized in California. It is against the law for an employer to discriminate against an employee by means of unfair treatment, depriving the employee of advancement, benefits, and or preventing an employee from employment privileges.
In order to bring a claim for discrimination in the workplace
via adverse treatment, the employee must provide evidence that the treatment which he or she endured was both substantial and detrimental. But what does this mean? This means the employee has to show that the employer treated him or her in such an unfair manner that would likely significantly debilitate a reasonable employee's work achievement and or functions in the same way. This means that the way in which the employer prevented the particular employee from carrying out his or her duties would also have impacted a reasonable employee in the same way. In other words, it did not affect them in a trivial way, rather it effected the employee substantially. So if an employee is merely annoyed or disappointed with the way in which he or she was treated, he or she would most likely not have claim in discrimination via preventing success, progress, or advancement.
Again, an Employment Lawyer
would need to analyze the facts of the particular case in order to decide if they should pursue legal proceedings.
- The Little Things Can Add Up
As previously mentioned, an employee might not have a claim if the adverse treatment which they endured merely annoyed them, the treatment must significantly cause damage or disrupt the employee from doing his or her job. However, an employer's unfair treatment of an employee although minor, if it is frequent, may in fact end up being substantial. For example, Linda, an employee at an insurance company, was open about her same-sex marriage to her partner Beth. Linda had been working at the company for three years and felt comfortable having her framed wedding photo of her and Beth on her desk. A new manager, Lisa was hired to oversee Linda's department. Lisa saw the picture on Lisa's desk and reprimanded her for having "obstructions in her workspace", even though other employees were not reprimanded for having family photos on their desk. A few weeks later, Lisa had Beth transferred to another desk, which annoyed Linda but she complied. Days after her transfer, Lisa accused Linda without evidence of falsifying her time sheet and had her suspended from work for two weeks, which damaged Linda's career working in insurance. No other employees were treated the same as Linda by Lisa. Here, these occurrences may add up to Linda having a sexual orientation discrimination
case against her employer, especially because no other employees were treated the same as Linda, and Linda was singled out because of her sexual orientation.
An Employment Lawyer would look at all the incidences that accumulated against an employee to decide whether there is a discrimination case at hand.
- Age discrimination is being overlooked
Discrimination in the workplace is the impetus of fear for new applicants when applying for jobs in superficial corporate America. Applicants with names that are laced with the negative stigmas of a racial minority existence are left perplexed and fearful of being rejected by a prospective employer prior to even being extended an invitation for a formal interview solely based on prejudices invoked by their ethnic sounding names. Job-seekers within the LGBTQ community are troubled by the thought of appearing for an interview and being judged harshly by the interviewer as an immediate reaction to their seemingly insufficient level of conformity to societal norms. Race, sex, and religious forms of discrimination have been the focal point for present day social and political protesters. Issues concerning the aforementioned topics of discrimination have historically plagued the job-hunt and sabotaged promotion opportunities for a myriad of American citizens. With these issues of discrimination in the forefront, we may find it somewhat easy for one to overlook forms of discrimination that may occur against the nation's elderly population.
With the average American Life-span expanding into later years, more employees are remaining in the workforce. With this in mind, many of these employees have children later in life and therefore their families depend on them financially. For example,
Growing up in a single parent household, Tammy and her sisters and depended on their mother to provide consistent financial stability. It never crossed their minds that sexism, racism, and/or ageism could creep into the hiring process, and hinder their mother's ability to provide that financial security that they sought from her. During the junior year of Tammy's undergraduate studies, her mother was terminated from her job of ten years. It was during the period of her job search that Tammy discovered the extent of her mother's concern for discrimination during the hiring process. As Tammy attempted to comfort her worries, Tammy's mother exclaimed "…it's easy for you to be calm, because you're young. People will hire you in a heartbeat". Immediately Tammy realized that it was not the possibility of being under qualified for the job postings that worried her, but it was the constant fear of being discriminated against because of her old-age and lack of youthfulness that triggered her apprehension. The complexity of her present situation forced her to consider the potential for unwanted strain and hardship caused by an inability to manage and fulfill all of her responsibilities. Worry endlessly circulated through her mind as the gravity of having to singlehandedly maintain the household bills and welfare of her children weighed down on her tense and stressed shoulders. Tammy understood her reluctance towards returning to the applicant pool in her mid-forties, as well as, the perplexities surrounding the undesirability she imagined would plague her image during her attempts to gain employment. As her daughter, it was extremely disheartening for Tammy to see the usually confident, smart, and courageous woman whom she so vastly admired become so dispirited by this circumstance.
When the feelings of pessimism and rejection consume a job applicant during their job search
anti-discrimination Acts like The Age Discrimination in Employment Act (ADEA) need to be enforced by Employment Lawyers. The Age Discrimination in Employment Act (ADEA) "…is a federal law that protects workers and job applicants age 40 and over from age-based discrimination in all aspects of employment." Encouragement can be felt by a number of aging Americans in the market for a job or currently employed knowing that the federal law is on their side in the workplace. Notably, Section 4 Clause 1 of the ADEA prohibits employers from discriminating against someone solely based on age. With further analysis of this clause by an Employment Lawyer it is equally important to note that the term "all aspects of employment" is not narrowly tailored to only protect from discrimination during the hiring process, but the ADEA ensures that "an employer may not fire, refuse to hire or treat an employee differently than other employees because of age". The protection of this law does not conclude with the applicant's ability to obtain a job, but it continues to protect the employee throughout the life of their employment. This aspect of protection is further dissected and thoroughly defined in the opinion of the case by District Judge Robert Taylor in his ruling of James G. Gill v. Union Carbide Corporation. Taylor states that "The purpose of the Act under which this action was instituted is to promote employment of older persons based on their ability rather than their age; to prohibit discrimination on account of age; and, finally, to aid workers in meeting the impacts that come with age. 1 Section 623(a)…". His analysis of section 623(a) of the ADEA forces the reader to consider the significant impact that age can have on one's ability to perform job-related duties that were much easier to execute in their youth. Furthermore, this clause of the Act makes it a necessity for the employer to provide adequate accommodations for an employee to aid them in successfully fulfilling their work-related obligations. Again, in order to have these rights enforced if they are violated, an employee would need to have an Employment Lawyer represent them in their case against their employer.
- The facts of each case are unique and need the close analysis of an Employment Lawyer
The laws that regulate age discrimination vary in their application because they are mainly based on behavior, therefore an Employment Lawyer is needed for analyzing the unique facts of a case.
The anti-discrimination laws for age are established to regulate adverse patterns or behavioral trends that previously occurred on a more consistent basis. These adverse patterns and/or behaviors have or can in some way, shape, or form inflict harm on another human being. To focus on numbers and productivity instead of appreciating the human being that is working diligently to produce the product, then to subsequently devalue elderly employees and prospective applicants are unethical and appalling. Cases in which an employer chooses to fire an employee based solely on their aging status, and not on their lack of work ethic are morally wrong and corrupt. Furthermore, refusing to promote, hire, or professionally consider someone as a consequence of their age is equally immoral.
Aging is a part of life, therefore, a culture in which an aging person is afraid of not being able to provide for themselves due to their undesirability in the workforce in unaccepted. Idealistically longevity in a position should demonstrate to an employer that an employee is reliable, dedicated to the company, and (more than likely) encompasses a wellspring of knowledge about the company. An individual with this set of characteristics is clearly an asset to a business and not a burden. The fear that can overcome any employee over 40 that the thought of re-entering the applicant pool while over the age of 40 is a feeling which no American should have to endure. Knowing that the lawmakers of this nation see the value in workers aged 40 years and above should provide a sense of comfort for individuals that find themselves in predicaments. The ability to provide for yourself and/or your family is a luxury that should never be compromised by judgmental ideologies of what it means to be "useful".
If you have an employment situation that involves issues with your age, you should reach out to an age discrimination Lawyer.
Currently, a majority of employees in California struggle with work-life balance. An individual may be striving for that promotion at work, finding time to go to their kid's soccer game, praying they will finally pay off their student loans, and still finding a moment to hit the gym so they can stay in good health. The average Californian tries to do it all. But what happens when a serious illness gets thrown into the mix for the employee himself or an immediate family member? Or, what if an employee is injured and needs surgery which will require time off from work to recover? More importantly, what if you take a leave of absence and as a result, you are fired? A leave of absence resulting in a termination might mean you were fired for an illegal reason. An Employment Lawyer is the type of lawyer who handles these types of situations. If you are thinking you may need an Employment Lawyer, here are some points to consider that you may not have known.
- The number of people you work with may be important
It seems odd, but the number of people employed by the organization or company you work for may be a significant factor in whether you have a leave of absence claim. There is a 50/75 rule which means there need to be 50 employees at your job-site, or 50 employees within a 75-mile radius of your job site. For example, you may work for a company that only has 20 employees in your building, that means you don't meet the 50 employee standard. However, if the company has another branch 25 miles away from your job-site and has 30 employees on-site, that may suffice to meet the requirement. Here, the 50/75 rule is likely met because the branch is within the 75- mile radius requirement and adding the branch's employees equals 50 employees total.
- Being sick or injured isn't the only type of recognized leave
Aside from taking time off for their own illness or injury, an employee may take leave to care for a member of the family who is seriously ill. Also, an employee may take a leave of absence because they are pregnant or for the initial receiving of an adopted or foster child.
- Your leave may last up to 12 weeks
As an employee, you may have the right to take up to 12 workweeks for your leave of absence. The 12 workweek leave is permitted in a 12 -month time frame. Keep in mind though, your employer has some discretionary power on how the 12-month period is measured. For example, an employer can decide to measure it as a calendar year instead of measuring the 12- months starting on the day the employee took their leave.
- You get the best protection the law provides
There are multiple statutes that overlap and provide protection for an employee's right to a leave of absence. Although multiple statutes covering leave complicates the process, the good news is that an employee who has taken or needs to take leave is entitled to utilize the statute that provides the best protection and most rights for their particular circumstances.
- Your employer can give you more time off than the law requires and you can hold them to it
Your employer has to meet certain standards the law sets out for providing leave to employees. But, if your boss is generous, he or she is entitled to exceed those standards and you may be able to enforce what they promised. For example, Brad is an employee at a marketing agency and takes a medical leave to have corrective surgery on his shoulder. Even though he was entitled to 12 weeks of medical leave by law, his employee handbook states that he has 14 weeks. After he took 14 weeks leave for his surgery his boss replaced him and told Brad they no longer had a position for him at the agency. Here, even though by law was only entitled to a 12-week leave, because he was promised 14 weeks in the employee handbook, he may have a claim against his boss for violating the company's own standard.
- In most situations, you can't be replaced or demoted
If you take a medical leave of absence that is covered by the law, you are entitled to have your original position restored back to you or another position that is equal. For example, Tammy was a full-time employee at a multinational package and delivery company working in the financial accounting sector. She took a leave of absence to care for her child because he was suffering from a serious illness. Upon Tammy's return, the head supervisor of the department told Tammy he had to replace her and now she must work in customer service as a customer service representative. Tammy was devastated by this news because this meant a huge pay-cut for her in comparison to her position in finance. In addition, she was over qualified for the new position. Here, not only was Tammy replaced, she was moved to a position that was considered a demotion from her original position and it was not equal in pay or department. Tammy might have a claim against her employer for violating her right to take a leave of absence to care for her son.
There is an exception if the employee taking leave or did take leave was in a significant position such as a CEO or was high-up in management. In a situation such as this, an employer may not be required to hold the employee's original position.
After requesting or insisting for leave of absence or taking a leave of absence, your boss can not demote you or fire because you took the leave. By mistreating you, singling you out, demoting you, or transferring you after you put a request in for taking a leave of absence may indicate retaliatory behavior. This basically means your boss is not allowed to punish you or make your job more difficult specifically because you took a leave of absence. This may be considered retaliation which is prohibited by law in California.
In taking all of these points into account, if you have an employment situation that involves issues with you taking a leave of absence, you should reach out to an Employment Lawyer.
The word "battery" is a word you would normally hear while watching your favorite crime drama, but it actually can occur in your very own workplace. Under civil law, particularly in employment law, employees are entitled to bring a claim against their employer if they have been a victim of battery in the workplace. The tort claim requires the employee suing their employer to prove that they were touched or the employer caused the employee to be touched and that the touching was intended to cause the employee harm or cause he or she to find the touching offensive.
An Employment Lawyer is the type of attorney who specializes in this type of situation, especially when a single claim may overlap with another claim. Battery claims do not always come alone though, they are often accompanied by sexual harassment. There are three features of battery, all of which have the potential to have a sexual harassment element to each of them. Sexual harassment in the workplace is prohibited by law and employees have the right to sue if they become a victim of unwelcome touching or inappropriate comments.
Below are some of the excuses employers have in response to battery and sexual harassment claims.
- "I didn't mean to hurt or offend you"
If an employee follows through on pursuing a claim against their employer for battery, they need to prove the employer had intent. On the surface, intent would seem to mean that the employer made it his or her goal to hurt the employee, however this is not the case. When making out the elements of battery, intent is proven by showing the employer intended to do the act that caused the harm. For example, person A smacked person B's buttocks in what person A claimed was just a "love tap" while person B suffered extreme pain in their tailbone, extreme humiliation, and or suffered extreme anxiety from this so called "love tap". In this example, although person A did not intend to hurt person B, person A did intend to commit the act, smacking B's buttocks, which caused person B harm. Therefore, in that example person B would be able to prove intent in their battery claim against person A.
- "I was just joking, you're not even hurt!"
Satisfying the second element of battery can be tricky in that it is based on contact that is harmful or offensive. Of course physical harm is more concrete and may be easier for an employee to show if they had a bruise or mark, but how do you prove "offensive"? The law in California says that touching is offensive where a reasonable person would find that it offended or wounded their personal dignity. For example, Sally was an administrative assistant at a marketing agency. Her job required her to spend a lot of time filing paperwork and restoring it in the filing room. One day while she was trying to place a file box on a high shelf, her boss Greg saw she couldn't reach and said "here let me help you" and picked Sally up by placing his hands on her buttocks and waist. Here, although this touching did not harm Sally, she found the touching to be offensive and a reasonable person in Sally's position would likely find the touching of one's buttocks and waist by their boss to be offensive.
Note that harmful or offensive conduct in a battery claim is negated where the touching was unavoidable, it was for a legitimate reason, or it was a touching that is acceptable in the course of everyday life. This means that if the harmful or offensive touching took place during an event that falls under one of those categories, then a claim for battery may be voidable. For example, let's look at Sally and Greg's situation again. This time, Sally was standing on a ladder to reach the shelf and lost her balance but Greg caught her before she hit the ground. Here, even though Greg may have touched her in a way that might be harmful or offensive, the touching may be considered as unavoidable because she fell on to Greg.
The way in which harmful or offensive is identified can be complex depending on the circumstances. It is best to have an Employment Lawyer analyze the facts of the case to ensure you get a professional and thorough opinion.
Consent is one of the elements that needs to be made out in a battery claim. Did the employee tell the employer that he or she wanted to be touched? Did the employee welcome the touching? Often when a battery claim is brought against an employer, they will claim that they thought consent was not necessary. Consent is an important factor in making a claim against an employer in battery. Where there is no consent for the touching, the employee's case is strengthened.
As seen in the examples above, battery and sexual harassment often go hand-in-hand. All three elements of battery need to be met in order to have a battery claim and in addition to the battery claim, an employee may have a sexual harassment claim. If an employee has been sexually harassed by unwanted touching, he or she may have a claim against their employer for sexual harassment in addition to the battery claim. Again, sexual harassment can be characterized as unwanted touching which is where the battery usually ties into the sexual harassment claim.
Taking all of the information and examples into account, an employee may be able to identify similarities in their own situation at work. Of course, every case is different and it is only with the guidance of legal a professional such as an Employment Lawyer that an employee will know if they have a claim worth pursuing. The Employment Lawyer will want details of the circumstances to ensure that all elements of battery have been met and the lawyer may also ask through questions about the sexual harassment the employee has experienced.
Have you ever wondered what would happen if you lost your job because you were in an accident and needed time off? What if a new manager was hired at your office and you suspect that he does not like you because of your ethnicity or skin color? Are you in a situation at work where another employee won't stop asking you out on a date and insists on making creepy comments about how attractive you are? Did you see something illegal happen at work like patient abuse and reported it but you were fired right after? Did you recently tell your boss that you are pregnant and you were let go because of this? What if you have a disability and you your boss denied your accommodation request? These are all unfortunate situations but many employees within the workplace endure such mistreatment. Where is the line drawn though and what rights do employees have? What rights does the employer have and how do their rights coexist with employee rights?
1. What is wrongful termination?
An Employment Attorney would be the type of legal professional to bring all of your employment related questions to, especially if you were fired. An Employment Attorney specializes in what is called wrongful termination. In California, an employee is considered as an at-will employee which means that the employee can be fired for any reason or for no reason at all. For example, your boss can fire you just because he or she does not like you, because you were late to a shift, they don't like the way you dress, they think you're annoying, or even they can even decide not to tell you at all the reason you why you were fired. Employers technically have the power to fire you without cause as long as they did not make the decision based on an illegal reason. Being fired for an illegal reason might be considered as wrongful termination.
Wrongful termination is basically where an employee is fired or let go from their job based on an illegal reason.
2. What is considered as an "illegal reason"?
We have touched on what kind of an employee employees are considered as in California and the "unless" of terminating an at-will employee. The "unless" applies to an illegal reason, but what does that mean? What is an illegal reason?
Some examples of an illegal reason would be if you were discriminated against based on your age, race, religion, gender, sexual orientation, disability, or marital status. There are employment laws that recognize certain characteristics and classes that are protected within the workplace in a particular way. For example, an employee over the age of 40 may be terminated, but prior to his or her termination, this particular employee may have experienced mistreatment at work such as negative comments made in regards to his or her age such as "You are getting too old for this job" or "Isn't it time for you to start thinking about retiring?". These comments that were made prior to the employee being let go or terminated may indicate that he or she was let go specifically because of his or her age. This all may result in a suit against the employer because employees over age 40 are considered a protected class and it is illegal for that employee to be fired because they are 40 or older.
Another example of discrimination would be if an employee was fired for a bogus reason, however, he or she felt as though it was because of their race. An employee may be able to prove this by providing evidence that he or she was passed over for employment opportunities that he or she was qualified for and this also happened to other employees who were also of the same race as this particular employee; this may establish a pattern of race discrimination within the workplace. Again this scenario may give rise to a claim of wrongful termination and discrimination if the employee was eventually fired.
Alternatively, an employee may be fired for what is considered as an illegal reason if they report sexual harassment and they are fired thereafter. Sexual harassment within the workplace is prohibited by law and therefore an employee is entitled to report any incidences of sexual harassment without being fired. For example, a male employee may witness another male manager sexually harassing other female employees and reports this to the Human Resources Department. Soon after the sexual harassment was reported to the Human Resources Department he was terminated without reason. Here, although his employer is not required by law to give a reason for terminating the employee, because it happened rights after the employee made the complaint, it may be considered wrongful termination.
Lastly, another example of wrongful termination may arise if an employee with a disability makes a request for accommodation and in response, the employee is fired. A request for accommodation should be met by an employer as long as it is reasonable.
These are all just examples of wrongful termination. Every case is different and requires a consultation with an Employment Attorney to discuss whether or not you have a wrongful termination case.
3. How do you know if you have a case?
As mentioned previously, every situation is different and the laws that govern wrongful termination are complex. The most efficient way to find out if you have a case is to contact an Employment Attorney. The Employment Attorney in your area may ask you questions such as how long you have been employed by your employer, were you fired, why you think you were fired and may need further information regarding past incidences that lead to your termination. By asking these questions the attorney can gather all the information and may be able to draw a conclusion as to whether you have a case and/or they may provide guidance on what you need to do next, such as filing for the right to sue.
In addition, should you deiced to contact a lawyer to discuss your potential case, you should reach out to an Employment Attorney who offers free consultations.
4 Things to Know About Leaves of Absence and Wrongful Termination
Have you ever wondered what would happen if you became very ill suddenly and couldn't go to work? What if your child or spouse became ill or he or she was severely injured in an accident; would you have to take off work for the duration of their recovery? Suppose your doctor told you that you were in need of surgery as soon as possible? Perhaps one of your parents was in a recent accident, would your boss give you time off to care for them? What if your husband or wife was injured while on active duty in the armed forces, could you get time off to help him or her? What if you were temporarily disabled but you could come back to work, does your boss need to accommodate you?
When an employee needs to take time off from work for certain reasons, it leaves the employee vulnerable to possible violations of their employee rights by their employer. There are laws in California that regulate employee leaves and the way in which employers must respond to an employee requesting and/or taking a leave. Not all employers follow these laws nor do they implement them into their policies. This is where issues arise for the employee which may lead to the need for an Employment Lawyer. An Employment Lawyer is a type of attorney who has experience in employment law on the employee side. This means the Employment Lawyer represents employees against their employers in particular leave of absence cases.
- Termination? Wrongful? Wrongful termination?
An employee may run into issues at work once they request for a leave, take a leave, or return from a leave. When and if this occurs, certain employee rights may be violated and legal action may need to be taken.
The word "terminated" in employment law is just a fancy word for being canned, fired, or getting sacked. It is a word usually used to characterize the way in which an employee was taken out of their employment as opposed to quitting, being let go, or a position being eliminated altogether. Termination is usually the result of an employee not conducting themselves in a professional manner such as being late or not producing satisfactory work product.
Where does the "wrongful" come into play? Every state in America has its own laws regarding employment. In California, all employees are considered "at-will" employees. This means that all employees can be fired from their position for any reason or even for no reason at all except if it is for an illegal reason. Employers can decide at their own will to get rid of an employee when it suits them as long as they do not decide to do so because of the particular employee's race, age, gender, sexual orientation, disability, medical condition, or if an employee makes a complaint concerning illegal/unlawful activity being exercised at the workplace. If an employer decides to terminate an employee based on one of those mentioned reasons, that may be considered a wrongful reason.
If an employee is terminated but the employee believes it is because they requested a leave, took a leave, or returned from a leave, he or she may be a victim of wrongful termination.
If an employee is terminated but it is based on what the law considers a wrongful reason, this may be identified as "wrongful termination". It is wrongful because it is based on an illegal reason. If an employee believes that he or she was wrongfully terminated because they were fired for an illegal reason, then he or she should contact an Employment Lawyer in their area.
- Failure to comply with accommodation request
Sometimes an employee may be cleared to work after taking a medical leave but only under certain conditions and/or restrictions. If an employee returns to work after taking an approved leave, they may ask for certain accommodations from their employer in which their employer needs to comply with as long as the request(s) are/is reasonable. For example, an employee may request to work during certain hours or perhaps shorter shifts. If an employer fails to meet an employee's reasonable request(s), the employee may have a case against their employer for failing to comply with their disability needs.
How much time can an employee take off for a leave of absence? Depending on the circumstances, technically an employee is permitted to take up to 12 weeks for a recognized leave of absence. There are other factors involved in deciphering how much time an employee is entitled to, but it is a determination that usually an Employment Lawyer would be able to make.
If an employee needs to take a leave, keeping open communication with their employer is key. An employee should keep their employer informed of when he or she will need to take a leave, how long he or she expects to be out of work, and should their circumstances change, they should inform their employer as soon as possible. Normally during this time, an employee is on unpaid leave unless their employment contract says otherwise. Where an employee would need more time in addition to the 12 weeks, he or she may contact their employer and inform them of this need in the form of an accommodation request. This request would likely need to include a doctor's recommendation of the additional time off. Keep in mind however that after the original 12 weeks is up, there are certain laws that do not obligate the employer to restore the employee's same position back to him or her upon their return.
In conclusion, disability leave and wrongful termination are complex areas of the law, which is why it would be useful to contact an Employment Lawyer. An Employment Lawyer who offers a free consultation with no up-front costs is the best kind of legal professional to contact. Each employment case is unique in its circumstances and facts, therefore an Employment Lawyer would be useful in the sense that they could tell a particular employee whether or not they have a case worth pursuing.
How people have fought against discrimination
Many employees face discrimination. The ADA, ADEA, Title VII Civil Rights Act and OSHA' s whistleblower laws help females, minorities, disabled or mentally challenged employees either get and keep their jobs. Also, any employee who files a complaint is protected by the OSHA' s whistleblower and civil rights laws.
Prior to 1960, there was a lot of discrimination. Presidents such as Abraham Lincoln, John F. Kennedy, and Vice-President Dan Quail have played a major role in alleviating discrimination.
President Abraham Lincoln ended slavery in 1898. This brought freedom to the African Americans. Title VII of the Civil Rights Act protects minorities, females, and employees in non-traditional professions keep their jobs. Non-traditional professions are a reference when female works in a traditionally male environment such as engineering, construction, computer field, etc. Also, it protects males that are in traditionally female professions such as nursing, daycare, hostess, etc.
President, John F. Kennedy played a vital role in the civil rights movement. The 1960's were years when African Americans and other minorities were recognized in employment places due to the Civil Rights Act. Martin Luther King and so many people spoke and publicized equal rights for all people. Without these movements, we would be stuck back in the 1960's where segregation played a role in society. I am glad we have diversity to be the number 1 nation in the world by contributing globally through American influences. Some of the American influences are the Army, Navy, Air-Force, and Marines plus USA companies going overseas. The USA is a role model for fairness when it comes to hiring a diversified workforce. A lot of societies are affected by blood is thicker than water, the caste system in India, and other racial differences. These type of attitudes does not help employees get fair treatment in other countries as well as in the USA.
Vice-President Dan Quail played a key role in creating the Joint Training Partnership Act(JTPA). This helped displaced employees such as homemakers, people who cannot get rehired in their field due to disabilities or attrition, single moms, etc. get training and help for daycare, gas expenses, etc. This has been replaced by other programs for youth, women, and men. I believe JTPA helped you train to your fullest potential. Current programs give you minimal training and low paying jobs, unlike the JTPA program.
My mom, Sandy Dwyer, worked closely with ADA organizations. She was a member of the USA Congress. She handled complaints in reference to ADA and Civil Rights Act. Many employees were terminated because of their differences. She has processed many complaints and tried to get their job back by mediation.
My mom has closely worked with BVR employees. BVR stands for Bureau of Vocational Rehabilitation. One of her clients had back problems. Due to her disability, she received a scholarship. Since my mom was a BVR contractor she was able to help this lady pass her math class to obtain her degree. There are many examples and miracles she was able to put in place.
The OSHA whistleblower act is a key because it protects employees and citizens from filing complaints against any company. Prior to working for Congress my mother, Sandy Dwyer, was a Senior Environmental Engineer. She would get many complaints from citizens. Her job was to inspect and process the complaints. One of the complaints was in reference to a sludge management plan. This was the practice of spreading manure on farm fields to help save money for farmers as well as meeting pollution prevention act to avoid irresponsible disposal or filling up landfills quickly. She found out a neighbor boy could not handle the smell and would set off his asthma attacks. She was able to show other forms of fertilization instead of manure spreading. All in all, everything was kept anonymous.
When it comes to laws California and New York set examples for rest of the states. I live in Ohio. California, New York, and Ohio are in the top 10 states for setting precedent on all laws including Civil Rights, ADA, whistleblower, and other acts.
When new laws are enacted it takes a long time to get them through the Congress. Implementation has to be accepted by each state before each city implements fairness laws.
America-USA is known to have the most lawyers compared to any country. Next is the UK. We surpass the UK in terms of lawsuits. I think having so many lawyers keeps all employees and firms on their toes. Because of lawyers and the legal system we are able to set an example to the rest of the world when it comes to diversity. Most of the world comes in contact with a US influence through the military, USA firms or retail firms such as McDonald's hamburgers and fries. Because of Civil Rights Act and diversity we hold no bars when it comes to going overseas and starting a business. Lawyers are utilized in this process to get the ball rolling overseas.
Thanks to law firms such as Steven and McMillan we as America, employees, and citizens are able to freely pursue any career without restrictions. Without law firms such as yours, only a few would benefit. Due to law firms like yours and our legal system we experience diversity and equal employment opportunities.