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Sacramento Sexual Harassment Law Blog

Some common workplace rights don't actually exist

The rights you have in the workplace can be a gray area, and the information you might get from family and friends isn't always correct. For example, you don't always have a right to free speech in the workplace, and you can be fired for saying certain things. In most cases, individuals who work for private companies are only protected when it comes to speech that is protected under another type of law — for example, what you say might be protected under a whistleblower law.

Surely you're protected when you speak out against what you perceive as wrong-doing in the workplace, right? Not always. You can lose your job for speaking out against actions that aren't covered by specific laws. If you speak out against discrimination, illegal financial activity or health concerns, then these might be covered under federal or state laws.

When are you a whistleblower?

California and federal law provide protection for whistleblowers. Protections include the fact that employers cannot move to prevent whistleblowing or retaliate against someone who has done so. But what is a whistleblower, and are you one?

A whistleblower is an employee who works for a public or private entity who also provides information about practices within that entity to a government or law enforcement agency. The information that is provided is typically about unlawful activity of some kind within the organization, such as discrimination or accounting fraud.

Man files lawsuit alleging retaliation after complaint

A man has filed a lawsuit against Trader Joe's, alleging that he was fired in retaliation for complaining about possible sexual harassment. In this case, the harassment was in the form of a sex toy gift that was given to the plaintiff at a company Christmas party.

The lawsuit states that the plaintiff attended a company Christmas party during his seventh year of working for Trader Joe's. The plaintiff was not scheduled to work on the day that the party took place, but he said he attended anyway out of pressure. He felt that if he did not attend, his relationship with his coworkers might suffer.

Laws prohibit your employer from retaliation in certain cases

Your employer has a right to discipline you for poor work performance or attendance, up to and including termination. Usually, this type of action requires a lot of paperwork and your employer has to tell you exactly where you went wrong and why they are taking the action they are. The reason employers take so much care when disciplining employees is that they are not allowed to extend discipline as a form of retaliation.

This means that an employer cannot use discipline to respond to an employee who is exercising any type of protected rights. You cannot be punished or retaliated against for asserting your rights against discrimination or sexual harassment or reporting instances of either of those things, for example.

The changing way we look at sexual harassment

An HBO movie called Confirmation, which relays the events around Clarence Thomas being confirmed as a Supreme Court justice, is raising new questions about sexual harassment and how the culture of harassment in the workplace has changed since 1991. While most people would agree that the culture is very different since Anita Hill testified against Thomas, some experts don't see the changes as completely positive.

One psychiatrist says that the words sexual harassment have become "normalized." Thanks to the 1991 confirmation hearings, intervening awareness campaigns and changes to laws, sexual harassment is no longer the taboo topic it once was. While it's certainly still difficult to come forward as a victim, especially if you believe you might be retaliated against in the workplace, more and more people are coming forward. And this isn't just true for women who feel harassed by men; this is true for all types of situations and sexualities.

How do courts decide if a hostile work environment exists?

Last week, we discussed how employers must be careful to avoid creating a hostile work environment for any employee or worker. But if you file a lawsuit claiming a hostile work environment because of sexual harassment, what will the court look at to determine if such an environment might exist?

According to law, a hostile work environment that is based on sexual harassment includes action from one or more other individuals that is not welcome and is pervasive or severe enough to create an offensive or abusive situation. The law considers whether such conduct was physical or verbal in nature; often, it is both. The law also considers how often such conduct might occur – a single inappropriate comment doesn't make a hostile working environment.

Appreciate volunteers in appropriate ways

April is National Volunteer Appreciation Month, a time with organizations across the country stop to appreciate the people who give time and effort to help others or drive a cause. While volunteerism is certainly very different from paid employment, many organizations have reward structures or hierarchies. Anytime you introduce rewards -- no matter how intangible -- you have the possibility of discrimination.

Volunteers can also suffer from hostile work environments due to discrimination or other issues. Yes, volunteers are not required to stay. Yes, they aren't making a decision to stay because they need to earn a wage at that place of employment. Some volunteers are relying on the experience to boost their career capabilities, though. And while volunteers are not protected by the same laws as employees, they should still be able to work with others without fear of discrimination or hostility because of gender, race or other factors.

Get back up when negotiating severance agreements

If you know that a termination in your employment is coming -- especially if you are in a high-level executive job or otherwise positioned to negotiate -- consider getting professional assistance with a severance negotiation. Having an attorney on your side at the beginning of a termination can help ensure all information is documented and that you get the best possible deal -- especially if you suspect that you might have a case for wrongful termination.

While many businesses do try to take care of employees and treat everyone fairly, even during times when someone is being let go, there are other businesses that don't always follow such rules. In an attempt to save money, save face or sweep uncomfortable things under the rug, businesses might terminate someone, often rushing them out the door with a severance package of some type in hopes that a problem will go away.

Does California have a whistleblower law?

Almost every state has at least some mention of whistleblower protection in state laws, and California is no exception. California's whistleblower provisions are noted in Government Code §§53296 et seq. and cover all employers in the state. Note that there are also federal laws cover whistleblower protection that would also be applicable in some California-based cases.

The California code specifically protects employees who appropriately use whistleblowing protocols. This means that an employee has a reasonable reason to believe that he or she has information about a violation of federal or state law on the part of the employer or someone within the company. The employee reports such information to the appropriate state or federal authorities. In such cases, the law says employers cannot retaliate against that employee.

Dos and don'ts for employer responses to sexual harassment

When someone in a workplace reports an issue of sexual harassment, an employer should take action. However, the type of action that an employer takes is critical to both the employer and employee. The wrong actions can actually result in a situation that is retaliatory in nature, and this could happen even when the employer has good intentions regarding the matter.

When someone reports a possible issue of sexual harassment, an employer should investigate the matter. To reach this point, however, the employer must have a safe and confidential means for individuals to make complaints. If someone feels that they will report an issue and that information will be shared freely with others, they are less likely to do so. If only one person in the entire company takes such reports, there's a chance that that person could harass someone and no one would ever report it. Employees should have viable options for making such reports.

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