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Sacramento Sexual Harassment Law Blog

Don't lead someone on in the workplace; be direct when needed

Yes, there's a difference between quid pro quo sexual harassment and someone mooning over you in the workplace. The first is illegal and you have a lot of legal protection in dealing with it. The second is uncomfortable and, while it could eventually turn into a sexual harassment situation, does not necessarily involve the same legal protections while it's simply a possible romantic interest you don't return.

One expert on managing people in the workplace notes that simply being noncommittal all the time to avoid negative issues doesn't work. If someone indicates interest in you or asks you out, there are only so many excuses you can make. Certainly, you can start with this tactic and hope they get the hint, but not everyone does, and continuing to avoid direct communication can even hedge the situation into harassment territory.

What can you not be fired for?

Federal laws protect most employees from being fired as an act of retaliation on the part of the employer. This protection only comes into play in certain circumstances, though. Here are some of the things that you can't be legally fired for.

You can't be fired because you participated in a lawful investigation of your employer or any worker in the company. This includes being a witness at a hearing, whether you were a witness for or against the employer. As long as you tell the truth as you know it in good faith, the employer cannot retaliate against you even if the testimony you provided was not in the company's best interest.

Are you dealing with a toxic work situation?

We've written recently about numerous issues that could cause legal implications in the workplace, but what if you are simply dealing with a toxic environment? Toxic situations can be extremely difficult to stomach on a daily basis, because sometimes you can't see any options for dealing with the situation. In some cases, the environment is extremely negative without ever crossing the line into harassment or discrimination, which means you might not have the legal options we can offer in such cases.

At the same time, most people simply can't walk out on a job because the environment is toxic or stressing. In many cases, the best advice is often to search for another job, but while you wait for leads to materialize or your supervisor to handle the situation, you also need to safeguard your career.

No arbitration compelled in wrongful termination suit

Many employers throughout the state are defaulting to a requirement that all employees sign arbitration agreements. Your human resource representative might gloss over the agreement with the explanation that it means you can't sue your employer, but that's not actually true. You still might have the right to sue an employer if you believe you were wrongfully terminated. The employer, however, has the ability to assert its arbitration rights.

Employers don't always assert those rights, for whatever reason, and if they don't do so in a timely manner, the request for arbitration isn't always upheld by the courts. In a recent case in another state, an employee filed a wrongful termination lawsuit against his employer. The employer filed a number of motions and documents in the case, including a motion to move the case to California.

Retaliation can happen regardless of claim disposition

If you report to your supervisor or employer that you have been discriminated against or sexually harassed, then the employer is not allowed to retaliate against you. Retaliation includes activities that impact your employment or pay if those actions were taken solely because of your report.

Once you make a report, the company usually engages in an investigation. You might also report issues to outside agencies or authorities, and outside investigations might take place. In some cases, the investigations might deem that the issue was not harassment or discrimination. Even if this is the case, you are still protected against retaliation.

High burden of proof makes sexual harassment cases difficult

Sexual harassment cases are often difficult to prove for a host of reasons. One of the issues that many people have is that the commonplace definition of sexual harassment often encompasses more events and types of actions than the legal definition. This makes it hard for a layperson to understand what types of activities would warrant legal action.

When it comes to sexual harassment, general claims are more difficult to prove than quid pro quo claims. This is because general sexual harassment claims would likely need to include more than one event in order to be considered actual sexual harassment in a court. Of course, one single event that is very serious in nature could be used to present an effective case.

Whistleblowing does have consequences

If you are a protected whistleblower, your employer is usually not allowed to take retaliatory action against you. But that doesn't mean whistleblowing doesn't come with some other negative consequences, and we believe our clients should be prepared for all possibilities when they make a choice to bring illegal or unethical action to light.

Whistleblowing laws don't always protect you from the response of coworkers or those in the business community. Your industry reputation can be at risk, especially if others fight back against your claims. While anonymity is sometimes an option, it can't always be relied upon, so you have to know exactly what you might be getting into before you make a whistleblowing statement.

Was there a culture of sexual harassment at Fox News?

Many people hve heard about the recent sexual harassment scandal that led to the resignation last month of Fox News chief Roger Ailes from the network he started. It began with a lawsuit by former anchor Gretchen Carlson, whose contract was not renewed. She accused Ailes of harassing her and then retaliating against her. After Carlson filed her suit, almost 20 additional women claimed to have harassed by Ailes.

The network ordered an independent investigation into Carlson's claims, which has included interviews with other female staffers. Current and former employees have gone public with stories of sexual harassment, including, reportedly, one of the network's biggest stars, Megyn Kelly.

Bullying does happen in the workplace

Although defines bullying as inappropriate and unwanted aggression between school children, bullying isn't something limited to the elementary school playground. Bullying can and does happen in the workplace. Depending on the nature of that bullying, you might have legal options for dealing with issues that aren't handled by your employer.

Sadly, bullying in the workplace doesn't always qualify under the law as harassment or discrimination. If the bullying is of a sexual nature, then it is likely a form of sexual harassment. If you are being bullied by others because of your race, age or other protected factors -- and your employer doesn't provide any assistance or is part of the bullying -- then discrimination could be at play.

Understanding whistleblower protections under Sarbanes-Oxley

The federal Sarbanes-Oxley Act was passed in 2002 and has come to be known as SOX in business environments. SOX addresses fraudulent financial activity in publicly traded companies and provides some specific protection for those who report such activity.

SOX protections extend to employees of publicly traded companies. They also cover contractors and subcontractors who are working with or for such companies as well as agencies of those companies. The type of reporting protected under SOX is fairly broad. You might be protected whether you make a report to a federal agency or to a law enforcement agency. Reporting to your supervisor or through internal compliance channels is also protected.

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