Sexual harassment in the workplace and the #MeToo Movement

March 14, 2018 | 9:25 am


Chain | Cohn | Stiles workers’ compensation* attorney Beatriz Trejo recently made a presentation in front of the Kern County Paralegal Association focused on ethical obligations to prevent sexual harassment in the workplace, and the #MeToo Movement. Below is a synopsis of that “Minimum Continuing Legal Education” presentation. 

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* Please note: Chain | Cohn | Stiles is no longer accepting wrongful termination and sexual harassment cases *

Preventing sexual harassment in the workplace is an ethical obligation of all employees, in addition to a serious legal issue.

More recently, we have seen uprising of people who have gone public with their stories of sexual harassment, assault and abuse, and systemic sexism. The “Me Too” hashtag campaign has spread virally to denounce sexual assault and harassment, and millions have used the hashtag to come forward with their own experiences.

Below is a timeline of legal and societal landmarks that led to our current state:

  • 1964: The Civil Rights Act of 1964 is passed, which prohibits employment discrimination based on race, color, sex, religion or national origin. It is commonly referred to as “Title VII,” because that’s the part of the act that covers employment. Title VII covers both men and women, but its original intent was to protect women in the workplace. This remains its main emphasis today.
  • 1986: In a landmark decision, the Supreme Court rules that sexual harassment can be sex discrimination prohibited by Title VII. The case of Meritor Savings Bank v. Vinson ruled that speech in itself can create a hostile environment, which violates the law.
  • 1991: The Civil Rights Act of 1991 is passed. Congress modifies Title VII to add more protection against discrimination in the workplace. Among other things, the Civil Rights Act of 1991 allows harassment and discrimination plaintiffs the right to a jury trial in federal court. It also gives plaintiffs the right to collect compensatory and punitive damages for the first time, subject to a cap based on the size of the employer.
  • 1993: Harris v. Forklift Systems is handed down. Here the plaintiff worked as a manager of a company that rented heavy equipment to construction companies. Forklift’s president continually made the plaintiff the target of comments such as, “You’re a woman, what do you know?,” and, “We need a man as the rental manager.”
  • 2004: Facebook is launched.
  • 2006: Tarana Burke uses the term “Me Too” to raise awareness of the pervasiveness of sexual abuse, assault, and harassment.
  • 2006: Twitter is launched.
  • October 2017: Actress Ashley Judd accuses media mogul Harvey Weinstein of sexual harassment. Actress Alissa Milano tweets, “If you’ve been sexually harassed or assaulted write ‘Me Too’ as a reply to this tweet.” Half a million people responded to the tweet in 24 hours. After the tweet, Facebook reported 12 million posts and comments regarding #MeToo. Within 24 hours 45 percent of all U.S. Facebook users knew someone who had posted #MeToo. The stories posted recounted stories in the entertainment industry, sports, politics, military, and law.
  • December 2017: The #MeToo movement “Silence Breakers” are named 2017’s “Person of the Year” by Time Magazine.

Today, we all continue to be protected against harassment under the U.S. Equal Employment Opportunity Commission rules, which state:

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

  • The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  • Unlawful harassment may occur without economic injury to, or discharge of, the victim.

Still, harassment continues. In fact, an October 2017 poll by NBC and the Wall Street Journal found the following:

  • 48 percent of women stated that they have received an unwelcome sexual advance or other verbal or physical harassment of a sexual nature at work.
  • 41 percent of men stated that they have observed inappropriate sexual conduct directed to women at work.
  • 63 percent of Americans in October 1991 believed sexual harassment occurred in most workplaces.
  • 66 percent of Americans in October 2017 believe sexual harassment occurs in most workplaces.

But legal remedies to fight against harassment continue to exist as well. Claims may be filed with the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission, and the courts. And if the law is violated, damages, attorneys’ fees, and costs may be ordered.

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If you or a someone you know needs assistance with a potential accident, injury or workers’ compensation case, it’s important to contact an attorney, call the lawyers at Chain | Cohn | Stiles for a free consultation at 661-323-4000, or visit the website chainlaw.com.

To learn more about workers’ compensation associate attorney Beatriz Trejo, click here.

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*NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in a prison or a fine of up to $150,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Employers: Avoid potential wrongful termination lawsuits by following these tips

February 10, 2016 | 9:00 am


NOTE: The article below, written by Chain | Cohn | Stiles wrongful termination attorney Matthew Clark, appeared in the February/March issue of the Kern Business Journal. The bi-monthly publication by The Bakersfield Californian showcases business and industry developments across Kern County.

To see the entire publication online, click here. To see the article in the Kern Business Journal, click here

* Please note: Chain | Cohn | Stiles is no longer accepting wrongful termination cases *

Neither I nor my firm Chain | Cohn | Stiles handle cases for employers. In fact, we do quite the opposite. We represent employees who have been wrongfully terminated. With this in mind, I offer you some suggestions on what I look for in a wrongful termination case, or, as an employer, some things you should avoid.

When evaluating a claim for wrongful termination, I first look to see if the employee was subject to an employment contract. We see these most often with employees who are members of a union. The union typically negotiates a collective bargaining agreement, and that agreement often times controls the termination of the employment agreement. For example, an employment contract may require that the employer terminate an employee for cause. In most cases I see, the employee is “at-will,” meaning there is no employment contract.

Second, I look to see if my potential client’s employer violated California’s Fair Employment and Housing Act (FEHA). FEHA strives to prevent discrimination in the workplace. If an employee is terminated for a discriminatory purpose, that employee likely has a claim under FEHA. FEHA prevents discrimination based on age, race, religion, gender, sexual orientation and disability, among other things. In Kern County, we primarily see cases involving age discrimination.

Age discrimination falls under the regulatory authority of both FEHA and the Age Discrimination in Employment Act (ADEA), a Federal act.

At first blush, age discrimination is simple. If an employer fires and employee over 40 years of age, and then replaces them with someone substantially younger, that fired employee has established a “prima facie” case for age discrimination. Once the fired employee establishes a prima facie case for age discrimination, the burden shifts to the employer to prove that the termination was not discriminatory; hence, the employer must prove that the employee was terminated for a legitimate, non-discriminatory, business purpose. If the employer is successful, the employee may claim that the non-discriminatory purpose was simply a pre-text, and that in actuality the termination was discriminatory – and so the circle of allegations goes.

Oftentimes, the motivation for terminating an employee is mixed. For example, an employer may have acted with discrimination, by firing an employee in their 60s while replacing that employee with someone in their 20s, but the employer may also have evidence that the older employee was failing to satisfactorily perform their job duties. These “mixed-motive” terminations were recently addressed by the California Supreme Court in Harris v. Santa Monica. Harris requires, amongst other things, that the terminated employee show that unlawful discrimination was a substantial motivating factor in the termination. If the employer can show that the termination would have happened anyway, without discrimination, the damages the employee may be entitled to are greatly reduced.

It is difficult, if not impossible, to address the complex issues surrounding wrongful termination cases in this short article. Accordingly, I advise any employers with questions to seek out qualified human resources professionals.

For more information related to wrongful termination cases and employment law, visit chainlaw.com.

— Matthew Clark is a senior partner at Chain | Cohn | Stiles where he focuses on wrongful death, wrongful termination and motor vehicle accident cases, among other injury cases for people of Kern County.

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*NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in a prison or a fine of up to $150,000 or double the values of the fraud, whichever is greater, or by both imprisonment and fine.

Chain | Cohn | Stiles takes on wrongful termination, discrimination case against Bakersfield business

October 24, 2014 | 10:11 am


* Please note: Chain | Cohn | Stiles is no longer accepting wrongful termination cases *

For several years, Adam Rendon worked at Bakersfield’s Best Pawn on Chester Avenue. There, he was subjected to derogatory remarks from his supervisors and coworkers.

At one point, when he ignored the comments, his coworker pointed a gun at him and pulled back the hammer. The gun was unloaded. On another occasion, his colleague told him, “I don’t like me no queers,” and then fired a nail gun on concrete to make a loud “bang.” Rendon, believing that Jimenez had fired an actual gun, experienced heart palpitations and shortness of breath and was admitted to an emergency room at Bakersfield Memorial Hospital.

Then, in June 2011, Rendon published a book that detailed his difficult upbringing and revealed he was gay. From that point, he was continuously subjected to severe and pervasive harassment from his coworkers because of his sexual orientation that included employees firing guns at a picture of Rendon attached to a wall at the back of the store.

In February this year, Rendon was fired.

The Bakersfield wrongful termination lawyers at Chain | Cohn | StilesMatt Clark and Neil Gehlawat — have filed a lawsuit against pawn shop owner Donald Younger, manager Jose Santoyo and employee Richard Jimenez for harassment and discrimination. The Bakersfield Californian highlighted the case in its Oct. 24 edition, which you can read here. See the article in the newspaper here.

“The bottom line is that everyone is entitled to work in an environment free of hostility and discrimination,” said Chain | Cohn | Stiles lawyer Neil Gehlawat. “Unfortunately for Adam, he was denied this basic right. After self-publishing his book about his difficult upbringing, in which he disclosed his sexual orientation, he was subjected to an array of homophobic remarks, slurs, and even violence by his co-workers. And to make matters worse, when he complained about this behavior to the owner of the store, he was subjected to even more hostility, retaliation, and was ultimately terminated.

Gehlawat continued: “By filing this lawsuit, Adam wants to send a message to Bakersfield’s Best Pawn, and to all employers, that every employee deserves to work in a hostile-free environment, regardless of their age, race, gender, or in his case, sexual orientation.”

Rendon, with the assistance of Chain | Cohn | Stiles, is seeking compensatory damages from Bakersfield’s Best Pawn including lost wages, bonuses and retirement benefits as well as general damages for mental pain, anguish and emotional distress. The lawsuit also demands punitive damages to punish the pawn shop’s owner and employees who either engaged in the harassment or didn’t do anything to stop it.

* Editor’s Note: Neil Gehlawat is no longer an attorney with Chain | Cohn | Stiles *