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Sacramento Sexual Harassment Law Blog

Understanding your employee classification

Most of the time, we talk about the important of not classifying employees in the workplace along lines according to race, gender, age, sex or nationality. But there is one classification that is critical and it's really important that employers get it right. That classification is whether you are an exempt or non-exempt employee.

What exactly does that mean? An exempt employee is someone who is not generally eligible for overtime. Typically, these are people in management positions of some kind, but they don't have to be supervisors. The federal government and state law mandate certain provisions regarding who can be called exempt -- including cutoffs for how much people make per year. If you don't make a certain amount each year, you can't usually be considered exempt.

Four tips for potential whistleblowers

You've found shady practices at your company -- things that you think break the law or cause unfair treatment for employees that could violate federal discrimination or safety regulations. The next steps you take depend on your situation, your comfort with any leaders in the company and what you are willing to do to see any type of justice.

First, it's always a good idea to understand the reporting structure in your company. Is there someone in leadership, compliance, human resources or legal positions who you don't believe is involved in the illegal activity? Are you comfortable reporting the issues to them? If so, and they handle the issue or cause it to be handled, then that might be the end of the story.

Why is sexual harassment case law so inconsistent?

While sexual harassment might seem like a straightforward scenario -- particularly if you are the victim -- that isn't always the case in court. Sexual harassment can be broken into two major categories: quid pro quo harassment and hostile work environment. The latter is sometimes harder to prove in court.

As we've previously discussed in the past, quid pro quo sexual harassment involves someone demanding sexual favors of someone else in exchange for something. That something could be a raise, promotion or job offer, but it could also be silence about a certain thing that might interfere with your career.

Are you dealing with a workplace bully?

You are protected from a hostile workplace in certain conditions. Your employer must take action to protect you from sexual harassment or address sexual harassment in the workplace. Discrimination is also not allowed in the workplace, and various discrimination types are illegal in each state. California actually has some of the most comprehensive discrimination laws protecting workers.

That being said, not all hostility in the workplace is illegal, which makes it difficult for some people who deal regularly with workplace bullies. According to OvercomingBullying.org, several types of bullies are common in the workplace. It identifies eight bully types, including the Constant Critic, who attacks the confidence of others through constant negative criticism.

What questions should you ask if you are fired?

If you are fired from a job, then you might be wondering all manner of things. Reactions to being fired can range from relief because you knew it was coming to bewildered confusion because you didn't have any clue it was coming. While it can be a stressful and awkward time, there are some questions that you should seek answers to as you speak to supervisors or human resource representatives on your final day.

First, ask for a reason. Why are you being fired? Does the company perceive that you did something wrong? Asking about a reason can help you understand if you might have a claim for wrongful termination, especially if you have expressed concerns about sexual harassment in the workplace.

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.

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