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Sacramento Sexual Harassment Law Blog

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 StopBullying.gov 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.

What are adverse actions?

In the context of employment law, adverse actions are a type of retaliation against workers. The law prevents employers from taking retaliatory action against workers who report or otherwise oppose an illegal action such as discrimination practices. The purpose of the law is to protect the job and opportunities of such workers in the face of an employer or supervisor who might be upset about a report or other action.

One of the most extreme examples of an adverse action is termination. An employer is not allowed to fire or lay off a worker simply because that worker reported or opposed discrimination in the workplace. Employers can't otherwise cause a worker to not have a job for the same reason, and that includes failure to promote or hire a worker solely because of his or her actions with regard to opposition of discrimination.

Can you sue because your employer fired you?

You can't file a lawsuit that will be potentially successful simply because your employer let you go. In many cases, this is true regardless of why your employer let you go -- as long as the company didn't break any specific rules or laws in their reasons for terminating you.

When a company terminates your employment for a lawful reason, you can't typically file suit. Lawful reasons for termination include the end of a contract, failure to perform required job duties or simply the fact that the company doesn't need your services any longer.

Is sexual harassment training contributing to the problem?

A study from the U.S. Equal Employment Opportunity Commission notes that sexual harassment training that has become traditional in many workplaces during the past few decades isn't as effective as many people think. In fact, the studies indicate that in some cases, the training might be counterproductive.

According to the EEOC, training in corporate and university environments tends to revolve around limiting the legal risks associated with sexual harassment incidents. That training might include information on identifying sexual harassment, how to report and deal with it and how organizations and managers can mitigate exposure. What it doesn't do, says the EEOC, is actually curb the instances of misconduct in the first place.

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.

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