Employment Law/Harassment and Discrimination
Overview
Employment law covers a complex network of laws that controls how employers must treat employees, former employees, and applicants for employment. Spray, Gould & Bowers LLP has significant litigation experience in this area of the law and has successfully represented both employees and employers in cases involving discrimination, harassment, retaliation, and hostile work environment based on race, national origin, gender, age, sex, sexual orientation, and religion, as well as wrongful termination, whistle blowing, and employment contracts. We also has extensive experience representing public employees, including employees of state and local universities and colleges, cities, counties, and the State of California. We are proud of the outstanding results we have achieved for our clients.
Employee Rights in the Workplace
All employees have basic rights in the workplace including the right to privacy, fair compensation, and freedom from discrimination, harassment and retaliation. A job applicant also has certain rights even prior to being hired as an employee. Those rights include the right to be free from discrimination based on age, gender, race, national origin, or religion during the hiring process. For example, a prospective employer cannot ask a job applicant certain family-related questions during the hiring process.
In most states, employees have a right to privacy in the workplace. This right to privacy applies to the employee's personal possessions, including handbags or briefcases, storage lockers accessible only by the employee, and private mail addressed only to employee. Employees may also have a right to privacy in their telephone conversations or voicemail messages. However, employees have very limited rights to privacy in their email messages and Internet usage while using the employer's computer system.
There are certain pieces of information that an employer may not seek out concerning a potential job applicant or employee. An employer may not conduct a credit or background check of an employee or prospective employee unless the employer notifies the individual in writing and receives permission to do so.
Other important employee rights include:
- Right to be free from discrimination and harassment of all types;
- Right to a safe workplace free of dangerous conditions, toxic substances, and other potential safety hazards;
- Right to be free from retaliation for filing a claim or complaint against an employer (these are sometimes called "whistleblower" rights);
- Right to fair wages for work performed.
Discrimination, Harassment, and Retaliation
Since the Civil Rights Movement of the 1960s, federal and state governments have enacted a number of laws that bar an employer from discriminating against employees on almost any grounds, aside from the quality of the employee's work or the nature of his or her personality. The best known federal employment anti-discrimination law is Title VII of the Civil Rights Act of 1964. In California, the Fair Employment and Housing Act predominates.
In general, the law prohibits an employer from discriminating on the basis of an employee’s membership in a protected class such as race, national origin, gender, age, sex, sexual orientation, and religion. It is illegal for an employer to refuse to hire, discipline, fire, deny training, fail to promote, pay less or demote, or harass based upon his or her protected class status.
In addition, it is illegal for an employer to adopt a policy or practice that has a "disparate impact" on a protected class, such as by adopting hiring criteria that tend to screen out women or minority group members, or by instituting a required test for promotion on which a particular class tends to score badly.
Sexual Harassment
Sexual harassment is unwelcome behavior that occurs because of gender. This can include unwelcome sexual advances, request for sexual favors, or verbal or physical conduct of a sexual nature. When a situation of submitting to or rejecting this type of conduct is made a basis for employment decisions, it is in your best interest to contact an employment law attorney. Even if there is no employment decision involved, there may still be grounds for a suit if the conduct is sufficiently severe or pervasive that it creates an intimidating, hostile, or offensive work environment.
An employee that is the target of sexual harassment must at least remember to do two things. First, make sure the harasser clearly knows that their conduct is unwelcome. Second, make sure that the employer knows of the situation, preferably in writing. Employees (link jump to tips below) and employers (link jump to tips below) will find the tips on this page useful in dealing with these difficult situations.
Sex-based harassment that is not of a sexual nature, also known as gender-based harassment, is also illegal. An example of this would be a supervisor who makes frequent derogatory comments about women and constantly refers to female employees using slurs or offensive language. It is also possible to be sexually harassed by a member of the same sex; if the offensive conduct occurred because of your gender, it fits the legal definition of sexual harassment.
Sexual Discrimination
Sex or gender discrimination is generally illegal, and can cause compensable damages to employees by denying jobs, equal pay, benefits, promotions, or other things associated with successful employment. By treating employees differently in the workplace specifically because they are physically or biologically a woman or man, an employer demonstrates "sexual" discrimination. Doing the same thing based on behavioral characteristics, such as "masculinity" or "femininity", is "gender" discrimination. Even if there is no direct threat to the employee’s job, sexual harassment can be considered a form of discrimination.
The impact that sexual discrimination can have on the victim's life, the alleged harasser’s life, and the employers business, is profound. By having one of our skilled attorneys review your particular circumstances, you can help you preserve a professional atmosphere and assure that situation is taken seriously. If an employee has actually suffered damage from sexual discrimination, it may be appropriate to file a lawsuit.
Racial Harassment
Offensive behavior that occurs because of an employee’s race is the basic component of racial harassment. Racial slurs, jokes, or stereotyping are all examples of the kinds of conduct that can make up racial harassment. This is true even if the behavior targets the race of the harasser’s spouse or friends, or even the harasser. It is possible for such harassment to rise to the level of racial discrimination if it is sufficiently frequent or severe to create an intimidating, hostile, or offensive working environment. When a situation of this type arises in the workplace, it is in your best interest to contact an employment law attorney.
Racial Discrimination
Race discrimination is defined as treating individuals differently in their employment because of their race, color, or ethnic origin. If this leads to a rejection for employment, firing, or other harm in employment, then the employee may have cause for legal action. For example, it may be discovered that equally qualified employees of a different race are given higher pay or better sales territories.
There are several statutes at both the state and federal levels that an employee harmed by racial discrimination can use to assert their rights against their employer, either in court or before an administrative agency. One of our attorneys can help you take the steps necessary to resolve the issue and determine which course of action is appropriate for the specific circumstances.
Retaliation
Retaliation claims may be based on any adverse action that an employer takes against an employee because the employee complained about harassment, discrimination, or some other violation of a workplace law, such as a "health and safety" or a "wage and hour" law. These laws also protect employees that are participating in an investigation of any of these problems. For example, an employer cannot punish an employee for giving a statement to a government agency that is looking into another employee's discrimination claim, or a general workplace safety problem.
The definition of "adverse action" can be very broad. The most common complaints deal with demotion, discipline, firing, salary reduction, negative evaluation, or changes in job assignment. It can also include hostility toward an employee by the employer. Potential liability for retaliation is similarly broad. Even if an employee is not in a class normally protected by discrimination statutes or a victim of the original behavior that led to the complaint, "whistleblower" laws legally protect employees from retaliation. In fact, even after an employee stops working for the employer in question, retaliation in the form of a negative job reference can still trigger the employee’s right to sue.
Wages & Benefits
Wages and job benefits are two of the most important employment-related concerns for many workers. Federal and state laws concerning wages and fair pay have evolved over the years, and the rules governing employee benefit plans can be fairly difficult to understand, so below is an overview of this key area of employees' rights law.
Federal and state laws set out in detail the minimum wage every worker is entitled to receive. These laws also identify which workers are entitled to receive overtime pay for working longer hours. Unfortunately, and often unintentionally, some employers fail to comply with these legal requirements. Common violations of the law related to employment wages include:
- Not paying the correct minimum wage.
- Paying the lower "training wage" or "youth minimum wage" to workers who should be paid more.
- Not paying overtime.
- Making employees work "off-the-clock," and not paying them for it.
- Deducting too much for tips.
- Deducting for wages paid in goods, such as meals or food.
The wage and hour laws are meant to protect employees, and to ensure that their employers treat them with fairness in terms of payment for work done.
The term "benefits" is a broad one. It covers anything an employee receives other than cash wages. Some benefits—such as family and medical leave—are required under federal or state law. These benefits generally do not cost an employer anything, except in terms of the employee's away from work. If you an employee covered by a law that requires certain job benefits, such as leave time for certain purposes, the employer must allow the employee to take advantage of those benefits at no penalty to the employee.
Unlike things such as family and medical leave, some benefits are optional and are a matter to be negotiated by you and your employer. These benefits include medical, disability, or dental insurance, life insurance, or employee pension plans. Although these benefits are optional, in that the employer is not required by law to provide them, an employer who does choose to provide them must follow certain federal regulations that can be extremely complex and technical.
Wrongful Termination
An employee who has been laid off or fired recently, and believes that he or she may have lost the job for an unlawful reason, may have a right to bring a claim for wrongful termination against the former employer. Legal remedies that may be available include money damages and, if not officially released yet, negotiation for an appropriate severance package that includes adequate compensation.
What Makes a Termination "Wrongful?"
The term "wrongful termination" means that an employer has fired or laid off an employee for illegal reasons in the eyes of the law. Illegal reasons for termination include:
- Firing in violation of federal and state anti-discrimination laws;
- Firing as a form of sexual harassment;
- Firing in violation of oral and written employment agreements;
- Firing in violation of labor laws, including collective bargaining laws; and
- Firing in retaliation for the employee's having filed a complaint or claim against the employer
Some of these violations carry statutory penalties, while others will result in the employer's payment of damages based on the terminated employee's lost wages and other expenses. Certain wrongful termination cases may raise the possibility that the employer pay punitive damages to the terminated employee, while other cases may carry the prospect of holding more than one wrongdoer responsible for damages.