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Sacramento Sexual Harassment Law Blog

Could an arbitration clause block your sexual harassment claim?

What do employment arbitration agreements have to do with sexual harassment?

Typically, an arbitration clause is an agreement to not pursue any legal action against your employer in court. Instead, it forces you to take your dispute into private arbitration, where a binding decision is made by a supposedly neutral third party. That means that you can't sue even for something as awful as sexual harassment. When combined with a confidentiality clause, it's a great shield for your employer but not so great for you.

Unionizing activity is often met with employer retaliation

Employees have a legal right, granted under the National Labor Relations Act, to join together to try to improve their wages or working conditions. Frequently, that results in the attempt to unionize or the decision to join an existing union that already applies to their trade.

However, that doesn't mean that their employers are going to like it. Put into that situation, it isn't uncommon for employers to engage in activity that's generally considered to be "union busting." One tactic that large employers sometimes use is simply closing down the entire department or store where the unionizing activity is taking place and dispersing the pro-union employees elsewhere (or letting them go).

Whistleblowers are often portrayed as mentally ill in retaliation

Whistleblowers have to have a lot of courage to step forward and expose the ugly underside of their employing institutions—and most do so knowing that they're likely to be called everything from a turncoat to a tattletale.

However, it tends to take even the most emotionally prepared whistleblower by surprise when they're suddenly labelled "mentally unstable" by their employer—the same employer that's always treated them as valued employees before that point.

What exactly is a hostile work environment, legally?

Some places are just not great places to work. You may have an incompetent boss, a rude supervisor or a clique of coworkers that makes life unpleasant for anyone not in the club. But is any of that enough to make a hostile work environment, legally speaking?

No. Having to work with incompetent, rude, domineering or even outright unpleasant people isn't something that matters, legally. So what does?

If you witness wrongdoing at work, do you have to testify?

There are times when something happens at work and all anybody wants to do is to stay as far removed from the whole mess and hope it goes away.

Unfortunately, if you're a witness to some sort of misconduct that ends up in litigation, you can end up being called on to testify. Depending on who engaged in the misconduct and who calls on you, you may be asked to testify against a current or former co-worker (who may also be a friend) or against your employer. Neither may sound like a comfortable situation—but do you have any choice?

Must a physical advance be sexual to be sexual harassment?

Most people realize that actions like grabbing someone's genitals, fondling someone's breast or forcing a kiss on someone's lips are inherently sexual. But does a physical advance on someone have to be inherently sexual in nature in order to constitute sexual harassment?

No, it doesn't. Even an action that could in no way be described as "alluring" can form the basis of a sexual harassment claim. So can non-sexual physical contact that merely serves as a pretext for getting the victim in closer.

Scorched earth tactics and retaliation lawsuits

How badly can an employer want to retaliate against a whistleblower?

Apparently, pretty badly, if the $10 million spent defending the wrongful termination claim of a Department of Energy employee is any indication. The process is known as "scorched earth litigation" and it is designed to intimidate and frighten most people into backing down off of a lawsuit and moving on, rather than staying embroiled in a case that can drag on year after year.

Constructive dismissal: Forced out by a hostile environment

All it takes is the realization that a company is going to put its reputation ahead of the wellbeing of its employees to make a sexually abusive supervisor figure out that he or she can get away with just about anything.

That can end up creating a toxic work environment so hostile that some employees feel like they have no choice but to resign or retire. Even though the employee is the one to take the action to terminate his or her employment, the law recognizes this as a "constructive dismissal," where the employer essentially forced the employee into action. A constructive dismissal is simply another form of wrongful termination.

3 things you should know about qui tam actions

A qui tam action is a type of civil lawsuit brought by a private individual, alleging that an individual or business has been defrauding the government. It's made possible through the The False Claims Act, and it encourages private citizens with information about fraudulent activity to act as whistleblowers through considerable financial incentives.

If you are considering stepping forward with information about fraud against a federal program or agency, there are some important things you should consider.

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